[2] The case holding that Article 201-77 and Article 2002-18 of the Ministry of Health and Welfare’s notice of the Health Insurance Medical Care Benefit Act and the unit price of its superior value-added allowance constitutes an administrative disposition subject to appeal litigation

[2] The case holding that Article 201-77 and Article 2002-18 of the Ministry of Health and Welfare's notice of the "unit price of health insurance medical care benefit and its superior value-added allowance", which calculates the cost of health care benefit, has the nature of an administrative disposition subject to appeal litigation because it does not differ from that which direct change in the legal interests of the medical care benefit recipient, the medical care institution, etc., or direct change in the

2. All of the plaintiffs' primary and conjunctive claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

[Reasons for Recognition: Facts without any dispute, Gap's 2-7 evidence, previous purport of pleading]

(a) The president of the Health Care Benefit Council and the National Health Insurance Corporation (hereinafter referred to as the “Corporation”) composed of the medical and pharmaceutical representatives shall hold a meeting to enter into the health care benefit contract in 2002 under Article 42 of the National Health Insurance Act (hereinafter referred to as the “Act”) on December 18, 201, but did not enter into the contract because it did not enter into an agreement on the health care benefit cost.

B. In accordance with Article 42(3) of the Act, the Defendant: (a) decided the cost of health insurance benefits after deliberation by the Health Insurance Deliberation and Regulatory Committee (hereinafter “Deliberation and Regulatory Committee”); and (b) organized the Regulatory and Regulatory Committee on December 19, 2001; (c) on December 27, 2001, the Re-Announcement of the cost of health insurance benefit and its large value-added allowance (hereinafter “point-value allowance”) as the cost of KRW 5.4 (the same as the cost of occupation in the preceding year) which is the government bill; and (d) re-announces the cost of occupation allowance within three months; and (e) on December 31, 2001, the Defendant announced the above proposal by the Ministry of Health and Welfare No. 201-77 (hereinafter “Public Notice No. 1”) and enforced from January 1, 2002.

(c)As the Special Act on the Improvement of Financial Soundness of National Health Insurance (hereinafter referred to as the "Special Act") was promulgated on January 19, 200 and enforced from the date of its promulgation under Article 1 of the Addenda to the Special Act, the review and decision-making work of health care benefit under Article 42 (3) of the Act was transferred from the previous Deliberative and Regulatory Committee to the Health Insurance Policy Deliberative Committee (hereinafter referred to as the "Policy Deliberative Committee"), and the Policy Deliberative Committee was composed of eight representatives of medical and pharmaceutical circles, eight representatives of health insurance subscribers and eight representatives of public interest.

D.On February 15, 2002, the Policy Deliberative Committee reached an agreement on the draft medical calculation criteria, but it did not reach an agreement on the draft insurance premium adjustment, and therefore re-determines through the sub-committee in accordance with Article VII, Section 5 of the Special Act as to the draft insurance premium adjustment proposal, and on February 19, 2002, at the open sub-committee, the third proposal was submitted by the representative of the public interest, who is 5.5 won in the unit price for the unit insurance premium adjustment plan, and the third proposal was submitted by the representative of the subscriber who is 6.57 won in the amount of 5.5 won in the amount of the unit price for the unit insurance premium adjustment, but only the other party's position was confirmed and further deliberated by the Policy Deliberative Committee.

(e)After that time, the Policy Deliberative Committee has tried to hold several consultations on the safeguard measures, but failed to make a conclusion, and the 5th Policy Deliberative Committee held on February 25, 2002 decided to present only the inside of the public interest representatives and the inside of the subscriber representatives, except the hydrodynamics proposed by the pharmaceutical circles without the presence of the representatives of the pharmaceutical circles, as next agenda items of opportunity;

(f)The 7th Policy Deliberative Committee, held on February 27, 2002, was in progress in the absence of the representative of the Korean Medical Association, and was not accepted as additional arguments of the representatives of pharmaceutical circles, and was adopted as a proposal 1, 6.7% increase of premiums and 3.97% increase of the number of policyholders as proposed by the representatives of pharmaceutical circles, as a proposal 1, 6.7% increase of premiums and 2.9% increase of the number as proposed by the representatives of public interest, as a proposal 2.

G. On March 16, 2002, according to the results of the deliberation of the said 7th Policy Deliberative Committee, the Defendant published a notice of the particulars of the medical care benefit cost (hereinafter referred to as the “Notice 2 of this case”) at KRW 53.8 won by reducing the number of medical care benefit costs to KRW 2002-18 of the Ministry of Health and Welfare’s notification.

2. Relevant statutes;

Article 42 (Calculation, etc. of Medical Care Benefit Costs) (1) Expenses for medical care benefits shall be determined by a contract between the president of the National Health Insurance Corporation and the person representing the medical and pharmaceutical industry determined by the Presidential Decree.

(2) Where a contract has been concluded under paragraph (1), it shall be deemed to have been concluded between the Corporation and each individual medical care institution.

(3) The contract under paragraph (1) shall be concluded within three months before the expiration date of contract period, and if the contract is not concluded within such period, the amount determined by the Minister of Health and Welfare through the deliberation of the Deliberative and Regulatory Committee shall be the medical care benefit cost. In this case, the medical care benefit cost determined by the Minister of Health and Welfare shall be

(4) If the medical care benefit costs are determined under the provisions of paragraph (1) or (3), the Minister of Health and Welfare shall publicly notify without delay the details of the medical care benefit costs.

Special Act on Financial Soundness of National Health Insurance

Article 7 (Meetings of Deliberation Committee) (3) Meetings of the Deliberation Committee shall be held with attendance of a majority of members present.

(4) The chairman shall not participate in resolutions under paragraph (3): Provided, That when the numbers of votes of approval and disapproval are determined by the chairman.

Article 10 (Claim for Medical Care Benefit Costs) (1) No medical care institution shall allow another person to file a request for examination (hereinafter referred to as the "request for examination") pursuant to Article 43 (2) of the National Health Insurance Act: Provided, That this shall not apply to medical care institutions determined and publicly announced by the Minister

(2) Where the medical care institutions referred to in the proviso of paragraph (1) intend to have their medical care institutions act on their behalf, they may have only the medical doctors' association, dentists' association, oriental medical society, midwife's association (including the reported branches and chapters) referred to in Article 26 of the Medical Service Act or the Pharmaceutical Association (including the reported branches and chapters) referred to in Article 11 of the Pharmaceutical Affairs Act act on their behalf.

3. Whether the lawsuit of this case is legitimate

A. Whether the notice of this case is subject to administrative litigation

(1) The defendant's assertion

The notice of this case does not have a specific nature of regulation for individual citizens, but has a general and abstract nature, so it does not constitute an administrative disposition which is subject to an appeal litigation, as it is apparent in the form or content of the provision.

(2) Determination:

(A) The legal nature of the instant notice

The legal nature of the notice does not uniformly determine, but it should be viewed differently at each specific case according to the contents contained in the notice. In other words, if the notice has a specific nature of regulation, it constitutes an administrative disposition, but if the notice has a general and abstract character, it constitutes an administrative order or administrative rule.

However, the instant notice constitutes a general standard to calculate the amount of medical care benefit when the Corporation or the person receiving the medical care benefit pays to the medical care institution, and thus, the specific rights and duties or legal relations between the Corporation, the medical care institution, and the insured are not formed just by the existence of the above general rule, but formed upon the occurrence of a series of factual acts or legal acts such as the patient’s internal medical care institution, the medical care institution’s implementation of medical care benefit and the Corporation, the claim for medical care benefit to the medical care institution, and the claim for co-payment to the person who received the medical care benefit from the medical care institution. Thus, the above notice has the nature as a statutory act

If the notice of this case has the nature of legal order, in principle, it does not have the nature of administrative disposition subject to appeal litigation unless there is a direct change in the specific rights and duties or legal interests of a specific person without any separate enforcement act. In other words, since the statute generally infringes on the legal interest only by mediating a specific enforcement act, an individual whose legal interest has been infringed is requested to take the procedure of remedy first as the object of enforcement act. Therefore, if there is an enforcement act based on the statute, an individual first has committed the enforcement act, and then, may seek remedy by filing an administrative lawsuit against the enforcement act. However, if there is no enforcement act based on the statute, even if there is no enforcement act, it is merely a formal form, and there is no direct infringement on the legal interest or the enforcement of the law, it shall be deemed that an administrative litigation can be instituted directly against the law.

However, in this case, the term "execution act" does not mean an act of facts of an individual, such as the implementation of medical care benefits, within a medical care institution, and the implementation of medical care benefits of a medical care institution, but is an act of an administrative agency that applies the notification of this case, i.e., administrative act, which applies the notification of this case (if it is not interpreted, there is no way to dispute about an act of fact of an individual

(B) Part of co-payment

According to Article 41 of the Act, a person who receives medical care benefits shall bear part of the expenses, as prescribed by the Presidential Decree, and Article 22(1) of the Enforcement Decree of the Act provides that the person who receives the medical care benefits shall bear the burden of the expenses himself/herself, and Article 22(2) of the Act provides that the person who receives the medical care benefits shall pay the expenses to the medical care institution at the request of the medical care institution or his/her dependent.

According to the above statutory provisions, a person who received medical care benefits in a medical care institution must immediately pay the amount of co-payment among the medical care benefits determined by the instant notice, etc., so from the standpoint of a person who received the medical care benefits, it would immediately have a direct impact on the legal interest, such as the determination of the specific amount of co-payment, without any involvement of the administrative agency by the instant notice, and the medical care institution that received the co-payment from the said medical care institution, is also directly affected by the instant notice

In addition, in cases where a person who receives medical care benefits or a medical care institution that receives individual co-payment from such person is legally infringed upon due to the instant notification, there is no other remedy except directly disputing the instant notification due to the absence of a separate administrative agency.

Thus, the notice of this case has the nature of administrative disposition, and it should be viewed that the notice of this case can directly institute administrative litigation against the notice of this case.

(C) The Corporation's claim portion

(1) Request procedures for medical care benefit costs.

When claiming medical care benefit costs, medical care institutions file a claim with a computer program called so-called "electronicized" distributed by the Corporation when claiming medical care benefit costs, which is already within the value of the notice of this case. Accordingly, if the medical care institution records only the prescription act and prescription medicine items in the above program, it automatically calculates the amount of medical care benefit cost claim according to the above program and automatically damages it on the computer screen and makes it available to the Corporation. In other words, the entry of the medical care institution at the time of claiming medical care benefit costs is merely merely a "brue, the type and quantity of prescription medicine," and the remainder is automatically processed by the computer program.

(2) Possibility of relief

For example, for the medical care institution to consider it appropriate, the medical care benefit cost calculated based on the unit cost of the point allowance in 2001 is claimed to the Corporation, and the Corporation's refusal to accept it seems to be able to dispute the appropriateness of the notice in this case while disputing the rejection disposition.

However, as seen above, medical care institutions are merely able to determine and enter only prescribed acts and prescription drugs in the process of claiming medical care benefit costs, and the remainder is automatically treated by computer programs, and thus, even if it is deemed that the unit price for the point is unreasonable, no other method exists to claim. If medical care institutions claim medical care benefit costs in any other way than by the aforementioned computer program, it is clear that the Corporation is a claim that does not fit the method

Therefore, even if the notice of this case on the unit price of allowance is unfair, the medical care institution has no opportunity to dispute the notice of this case.

(3) In addition, in terms of the concept, the administrative agency may think that the act of paying the medical care benefit cost by applying the instant notice to the medical care benefit cost claim by examining the medical care benefit cost claim. However, in reality, the examination of the medical care benefit claim is mostly conducted with respect to the prescription and adequacy of the prescription medicines of the medical care institution, and there is no relation with the application of the instant public notice. Since the instant public notice is meaningful and obvious, the enforcement agency is bound to perform certain enforcement acts according to the instant public notice without any possibility of examination and discretion, and the instant public notice is applied formally and automatically because the instant public notice is contained in the computer program, and thus, it is not different from the execution of the instant public notice.

In other words, since the notice of this case does not have room for examination and discretion by the executing agency in its application, it applies to the calculation of medical care benefit costs in mechanical form without any limit if there is an act of providing medical care benefits, and it affects the determination of medical care benefit costs. The increase or decrease in the medical care benefit costs brings about a change in the legal interest

(4) Therefore, it is reasonable to view that the above exceptional law is reasonable and obvious so that the enforcement agency shall perform a certain enforcement act without room for examination and discretion, and if there is no possibility of relief, it can be treated equally as the case where the specific rights and duties or legal interests of a specific person are changed directly, and that the pertinent law can be considered as the object of appeal litigation.

(D) Conclusion

If so, the notice of this case on the unit price of an allowance in this case does not differ from that which directly changes the legal interest of the person who received the medical care benefits and the medical care institution, or directly changes, and thus, it has the nature as an administrative disposition that is the object of an appeal litigation.

B. Plaintiff 1's standing to sue

(1) The parties' assertion

The Defendant asserted that Plaintiff 1 did not have any legal interest due to the instant public notice, and that Plaintiff 1 did not have standing to sue to seek invalidation or revocation of the instant public notice. Accordingly, Plaintiff 1 asserted that Plaintiff 1 had no legal interest in claiming for invalidation or revocation of the instant public notice, and that, under Article 10(1) and (2) of the Special Act, medical care institutions publicly notified by the Defendant are authorized to act on behalf of the society, etc. pursuant to Article 43(2) of the Act. As such, Plaintiff 1 is a person who can make a request for review of medical care benefit costs on behalf of the medical care

(2) Determination:

On the other hand, the above plaintiff is not the subject of the payment of the medical care benefit cost, because it is not the subject of the payment of the medical care benefit cost, and therefore, it cannot be said that any legal interest has been infringed due to the notice in this case (In addition, there is no evidence to acknowledge the fact that the above plaintiff was requested by the medical care institution to act as an agent for the medical care benefit cost claim), therefore, the above plaintiff has no standing to sue to seek the invalidation or

4. Whether the notice of this case is lawful

A. The plaintiffs' assertion

(1) According to the latter part of Article 42(1) of the Act, the term of the contract shall be one year. The latter part of Article 42(1) of the Act shall be deemed to be a mandatory provision inasmuch as the term of the contract at least one year is stipulated in policy consideration to guarantee the validity of the contract in a case where the contract for the medical care benefit cost was concluded, and the latter part of Article 42(1) of the Act shall be deemed to be a compulsory provision. In addition, since the medical care benefit cost determined by Article 42(3) of the Act is the same as the medical care benefit cost stipulated by the contract under paragraph (1), the provision on the term of the contract after the latter part of Article 42(1) of the Act shall apply

The notice No. 2 of this case was based on the proviso of the notice No. 1 of this case, and the notice No. 1 of this case is null and void, so the notice No. 2 of this case also becomes null and void.

(2) Even if the notice No. 1 is valid, the notice No. 2 of this case is a significant and apparent procedural defect as follows in the deliberation process of the 7th Policy Deliberative Committee, which is premised on the notice No. 2 of this case.

In other words, 23 members, including the chairperson, were present at the above Policy Deliberative Committee. However, the representative sexual interest members of the Korea Hospital Association, the representative standing members of the Korean Association of Dental Association, and the representative immigration members of the Korean Pharmaceutical Association did not vote on the matter on which they have been proposed to have a good objection to voting, and the chairperson dealt with the above sexual interest system, present skills, and immigration members as not attending the meeting and handled that only the remaining 19 members were present at the meeting, and the proposal of the public interest representative approved by 10 of them was passed.

However, it cannot be interpreted that a member of the above sexual dynasium, gynasium, and gynasium did not have the right to vote but did not appear at the meeting. Even if a member of the sexual dynasium who left the voting place before voting by giving a white concession is not present at the meeting, it cannot be said that he/she was absent from the meeting at the voting place at the time of voting.

Therefore, even if the members present at the meeting of the 7th Policy Deliberative Committee are excluded from the non-voting chairperson, 22 persons (21 persons even if excluding the non-voting member), so in order to legally resolve the agenda at the Policy Deliberative Committee, at least 12 persons (11 persons even if 21 members are present at the meeting) who are the majority of the committee should be approved, and there is a significant and obvious defect that the resolution is passed by the 10 members present at the meeting.

(iii)Therefore, as the case may be, seek revocation of the notices of this case primarily and as the preliminary one.

(b) Markets:

The primary claim and the conjunctive claim shall also be considered together.

(1) Whether Article 42(1) of the Act was violated

In full view of the purport of the oral argument in the evidence Nos. 4-2, 9 and 10, the Corporation requested the Seoul National University Management Research Institute to conduct cost analysis based on the data on the balance of office members, and as a result, the amount exceeding 16% to 30% of the average amount of 1.6% of the remainder of the medical treatment except for foreign departments has occurred, and the monthly provisional disposition income of the opening company is estimated to be approximately KRW 7.7 billion to KRW 9,50,000. This is the 5.9 times of the income per worker in our country, and KRW 7.7 times of the national income per head, which is higher than that of the United States. According to the results of the above study conducted by the Deliberative and Regulatory Committee on Dec. 27, 2001, the Corporation has to sufficiently review the previous opinion that the unit price should be determined as KRW 30,500,000,000 of the total amount of allowances for 2 months, and thus, it may sufficiently review the above opinion within 2 months.

According to the above facts, when determining a reasonable unit price for point allowance in 2002 through sufficient review of the above research findings and hearing opinions of interested parties, the above research results were examined for the three-month period with the consent of the members of the Deliberative and Regulatory Committee representing interested parties, and then the unit price for point allowance in 2002 shall be continuously maintained in 2001. Thus, the substance of the notice No. 1 of this case shall be deferred for three-month period by the defendant's decision on the medical care benefit cost to be determined under Article 42 (3) of the Act. Further, as shown in the circumstances where the notice No. 1 of this case was made, it cannot be said that the delay of the decision on the medical care benefit cost in order to have three-month period for determining the unit price for point allowance with the consent of interested parties violates good customs and other social order. Thus, it cannot be said that the notice No. 1 of this case violates the latter part of Article 42 (1) of the Act.

Therefore, the first argument of the plaintiffs is without merit.

(ii)whether procedural defects exist, whether he/she will take the vote of a member of the Egyptive System, strawing System, or Egyptive System;

In full view of the purport of the arguments, the 7th Policy Deliberative Committee was held on February 27, 2002 in order to determine the number of insurance policies, and the remaining 25 members of the Korea Hospital Association (including 23 members), except for the 25 members of the Policy Deliberative Committee, were present at the meeting, while the 25 members of the medical and pharmaceutical circles proposed that they should be put to the vote at the same time, the number of the members should be decided that they should be put to the vote at the same time, and the 13 members should be put to the vote in the open ballot, but the 10 members should have the right to vote at the open ballot, but the 13 members should be agreed to vote at the open ballot, so that the 10 members should not be present before the voting of the Korean Hospital Association's members and the 20th Chairperson should have the right to vote, and the 9th members should have the right to vote before the voting of the National Association's members and the 20th Chairperson should have the right to vote at this time.

As above, the members who voluntarily left the meeting of the Policy Deliberative Committee before voting was held, and who clearly expressed their intention not to participate in voting (the right to vote is different from the right to vote to waive the voting on the proposal) are difficult to be considered as the members present at the meeting, and the second argument of the plaintiffs is without merit.

5. Conclusion

Therefore, the lawsuit of the plaintiff's Medical Association is unlawful, and it is dismissed. The remaining plaintiffs' primary and conjunctive claims are dismissed as it is without merit.

Judges Cho Jong-jin (Presiding Judge) Kim Yong-sung