1. As to the Plaintiff’s ground of appeal against Defendant National Health Insurance Corporation

A. As to the grounds of appeal Nos. 1, 2, and 3

A medical care institution is not entitled to medical care benefits, and thus a medical care institution is not entitled to medical care benefits. Nevertheless, if a medical care institution issues a prescription with an out-of-the-counter prescription outside the medical care benefits standard as the subject of medical care benefits, the medical care institution’s provision is prohibited from issuing a prescription. Nevertheless, even though the medical care institution’s provision aims to fulfill the best medical care obligation for patients, and cannot be deemed unlawful in relation to the subscribers, etc., it is an act causing loss to an insurer to pay medical care benefits to medical care benefits, which is not the subject of medical care benefits. Thus, in order to realize the obligation to protect public health under the Constitution, the State’s act of causing damage to the national health insurance system or order that has legalized the subject of medical care benefits based on the social insurance principle and formed the insurance finance accordingly, the act constitutes an unlawful act under Article 750 of the Civil Act in relation to the insurer, and the loss caused by the insurer is equivalent to the amount of medical care benefits paid by the insurer upon a request for examination of the relevant medical care benefits, such as pharmaceutical fees and pharmaceutical expenses, etc.

After finding the facts as stated in its holding, the court below rejected the Plaintiff’s assertion that there was no causal relationship between the Plaintiff’s illegal prescription and the Plaintiff’s illegal damage equivalent to the medicine cost borne by the Defendant National Health Insurance Corporation, on the grounds that the Plaintiff’s non-pharmaceutical prescription violated the medical care benefit standard, and thus, constitutes an illegal act under Article 750 of the Civil Act in relation to the insurer at the time of issuing such non-pharmaceutical prescription. Thus, the Plaintiff is liable for damages equivalent to the medicine cost paid by Defendant National Health Insurance Corporation to Defendant’s pharmacy due to the unlawful act of issuing the prescription, based on the non-pharmaceutical prescription that exceeds the medical care benefit standard from November 201 to March 2009.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the elements for the establishment of tort, the responsibility for assertion thereof, the existence of illegality and the burden of proof thereof, the scope of damages, and

B. Regarding ground of appeal No. 4

Where a victim is negligent in the occurrence or expansion of damage or there is a ground to limit the tortfeasor's liability in a damage compensation case due to a tort, it must be taken into account as a matter of course in determining the scope of liability for damages. However, determination of fact-finding or its ratio on comparative negligence or grounds for limitation of liability falls under the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2010Da42532, Oct. 11, 2012

In light of the above legal principles and records, the court below is just to limit the plaintiff's liability for damages to the defendant National Health Insurance Corporation on 80% of the plaintiff's liability for damages on the ground that the issuance of the plaintiff's medical prescription of this case to the defendant National Health Insurance Corporation is not appropriate in light of the principle of fair apportionment of damages, and there is no error of law such as incomplete deliberation or erroneous determination of facts beyond the limit of free evaluation of evidence, contrary to what is alleged in the grounds of appeal

C. Regarding ground of appeal No. 5

In light of the relevant legal principles and records, the court below is just in rejecting the Plaintiff’s assertion on abuse of the right of set-off on the ground that the exercise of the right of set-off by Defendant National Health Insurance Corporation in this case does not deviate from the purpose and function of the set-off system or it is difficult to legally protect the right of set-off. There

2. As to Defendant Busan Metropolitan City’s grounds of appeal

Article 5(1) of the former Medical Care Assistance Act (amended by Act No. 10514, Mar. 30, 201; hereinafter “Medical Care Assistance Act”) provides that the head of a Si/Gun/Gu (referring to an autonomous Gu; hereinafter the same shall apply) having jurisdiction over the residence of an eligible recipient shall perform duties concerning medical benefits. Article 11 provides that an institution providing medical benefits may claim reimbursement of expenses incurred in providing benefits from the Medical Care Fund to the head of a Si/Gun/Gu (paragraph (1)), and that the head of a Si/Gun/Gu who is notified of the details of examination by an institution examining expenses incurred in providing benefits shall, without delay, pay the expenses incurred in providing benefits to an institution providing medical benefits (paragraph (3)). Article 23 provides that the head of a Si/Gun/Gu may demand payment of all or part of the amount equivalent to the expenses incurred in providing benefits by fraud or other improper means (paragraph (1)), and if a person who has received a demand for payment by the due date fails to do so (Article 6).

In light of the contents, structure, etc. of the above provisions of the Medical Care Assistance Act, when the head of Si/Gun/Gu, who received a collection disposition based on Article 23(1) of the Medical Care Assistance Act from the head of the Si/Gun/Gu, and claimed a return of unjust enrichment equivalent to the charges collected, the other party to the claim shall be the Si/Gun/Gu to which the head of the Si/Gun/Gu who received the said collection disposition belongs, and shall not claim a return of unjust enrichment against a third party who is not the Si/Gun/Gu, and the other party to the claim shall be the Si/Gun/Gu to which the head of the Si/Gun/Gu belongs, and the other party to the claim shall not claim a return of unjust enrichment from the medical care expenses to be paid to the medical care institution subject to the collection disposition based on Article 23(1) of the Medical Care Assistance Act, and Article 20(2)1 of the Enforcement Decree of the Medical Care Assistance Act, which was entrusted with the payment of the expenses for benefits in accordance with the above collection disposition.

Nevertheless, in this case where the Plaintiff, who was collected from Defendant National Health Insurance Corporation as a result of the collection disposition by the head of Si/Gun/Gu based on Article 23(1) of the Medical Care Assistance Act, claimed that the collection disposition by deducting the aggregate of KRW 131,188,120, from July 2002 to March 2009, becomes null and void as a matter of course, and claimed a return of unjust enrichment equivalent to the amount of the above deduction collection amount, the lower court determined that the Plaintiff may claim a return of unjust enrichment against Defendant Busan Metropolitan City, which is not the Si/Gun/Gu to which the head of Si/Gun/Gu, who is not the Si/Gun/Gu to which the Plaintiff had jurisdiction over the location of the ○○○○○○○○○ Hospital operated by the Plaintiff, which is not the Si/Gun/Gu to which the said collection method belongs, and that the lower court erred by misapprehending the legal doctrine as to the other party to the

3. As to the Plaintiff’s ground of appeal against Defendant Busan Metropolitan City

Since the Plaintiff’s right to claim return of unjust enrichment against Defendant Busan Metropolitan City cannot be recognized for the same reasons as above 2.2. Thus, it is evident that the Plaintiff’s ground of appeal as to the part against Defendant Busan Metropolitan City against the Plaintiff cannot be accepted without further review.

4. Conclusion

Therefore, the part of the judgment below against Defendant Busan Metropolitan City is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All of the Plaintiff’s appeals are dismissed, and the costs of appeal against Defendant National Health Insurance Corporation are assessed against the losing party. It is so decided as per Disposition

Justices Min Il-young (Presiding Justice)