A. On October 18, 2013, the part of the Defendant’s disposition to recover expenses for long-term care benefits exceeding 11,482,271 won against the Plaintiff is revoked.

B. The plaintiff's remaining claims are dismissed.

2. 4/5 of the total litigation costs is borne by the Defendant, and the remainder by the Plaintiff, respectively.

The Defendant’s disposition to recover expenses for long-term care benefits rendered to the Plaintiff on October 18, 2013 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as a whole in the descriptions and images of Gap evidence 1, Gap evidence 4-1, Eul evidence 4-5, Eul evidence 1, Eul evidence 3, Eul evidence 4-1, 2, Eul evidence 4-2, Eul evidence 9, Eul evidence 10, Eul evidence 13, Eul evidence 14-1 through 7, Eul evidence 15-1, and Eul evidence 15-1.

A. Operation of the Plaintiff’s long-term care institution

On December 5, 2010, the Plaintiff and Nonparty 1 were designated as a long-term care institution by the head of Seodaemun-gu Seoul Metropolitan Government (hereinafter referred to as the “Seoul Metropolitan Government”) on December 5, 2010 (hereinafter referred to as the “head of Seodaemun-gu and the head of Seodaemun-gu; hereinafter all other heads of the Gu shall also be indicated in the aforementioned manner) and operated the “Sabridge Medical Center” (hereinafter referred to as the “instant medical care center”).

B. Provision of visiting medical care services to Nonparty 2 and Nonparty 3

① Nonparty 4, who is a pastor of the Eunpyeong-gu Seoul Metropolitan ○○ church located in the same Dong, is operating a “living home for the disabled with the disabled” (hereinafter “instant facilities”) with Nonparty 5, who is his spouse. The instant facilities are detached houses with an exclusive area of 241.08 square meters.

② From October 1990, Nonparty 4 had disabled persons, etc. live in the instant facility. around September 2005, Nonparty 4 obtained authorization from the head of Eunpyeong-gu as a communal home for disabled persons under the Act on Welfare of Persons with Disabilities.

③ Nonparty 2 (the 1942th and 2nd degree of brain disease) was admitted to each of the instant facilities from January 2003 to Nonparty 3 (the 1935th and the 1st degree of disability). From September 2009, Nonparty 3 was living in each of the instant facilities.

④ Although the fixed number of the instant facilities is nine, eight persons, including Nonparty 2 and Nonparty 3, are living together with a basic livelihood recipient, who have a physical disability, mental disability, brain disease, or visual disability.

⑤ Persons who reside in the instant facilities, including Nonparty 2 and Nonparty 3, shall be paid KRW 50,00 to Nonparty 4 every month as living expenses. The instant facilities are operated with money and donation support that persons living therein paid and do not receive subsidies from the State or a local government. Moreover, there is no room for the Defendant to provide facility benefits under the Long-Term Care Insurance Act for the instant facilities.

6) The Plaintiff, the Nonparty 6, the Nonparty 7, the Nonparty 8, and the Nonparty 9 provided visiting care services to the instant facility for those who work in the instant facility.

7) The Plaintiff claimed expenses for long-term care benefits to the Defendant on the ground that Nonparty 2 and Nonparty 3 provided visiting care services from February 2, 2011 to April 2013, and received KRW 41,490,800 from the Defendant.

C. Provision of visiting medical care services to Nonparty 10

① From April 201 to April 2013, Nonparty 11 and Nonparty 12: (a) provided the beneficiary Nonparty 10 with a visiting care for 5 hours a day from April 201 to May 2013; and (b) recorded the record of the provision of benefits that the beneficiary provided 4 hours a day from May 201 to May 201; and (c) recorded that the beneficiary provided a visiting care service even on Saturdays that did not provide the actual service. As indicated in the record of the provision of benefits, the Plaintiff claimed expenses for long-term care benefits to the Defendant and received KRW 2,09,110 from the Defendant.

② From February 2011 to May 2012, 201, Nonparty 13 provided visiting care services to Nonparty 10 for more than two hours, by means of residing in Nonparty 10’s home, a day-to-day recipient, and the Plaintiff provided visiting care services twice a day. Under the premise that the Plaintiff provided visiting care services twice a day, Nonparty 13 claimed expenses for long-term care benefits from the Defendant and received KRW 961,751 from the Defendant.

D. Provision of visiting bathing services to Nonparty 14 and Nonparty 15

① Nonparty 16 and Nonparty 17 provided the beneficiary Nonparty 14 and Nonparty 15 with a bathing service. Nonparty 14 is the father of Nonparty 16, and Nonparty 15 is the husband of Nonparty 17.

② Nonparty 16 and Nonparty 17, when taking Nonparty 14 and Nonparty 15 for bath, were together arranged for bath, provided assistance in the time of taking a bath, and arranged the surrounding areas after taking clothes.

③ Nonparty 14, as well as Nonparty 16, does not fit for others to make themselves a cleaning agent, Nonparty 17, when Nonparty 16 takes Nonparty 14 at a bath room, she helps others outside the bath room.

④ Nonparty 15 also 17, as well as Nonparty 17, did not put himself in a cleaning agent, most of Nonparty 17 took Nonparty 15 as a cleaning agent, and Nonparty 16 aided Nonparty 16 outside a bathing room.

⑤ From February 2011 to April 2013, Nonparty 16 and Nonparty 17 provided Nonparty 14 and Nonparty 15 with bathing care services. The Plaintiff claimed expenses for long-term care benefits to the Defendant and received KRW 4,462,189 from the Defendant.

E. Provision of visiting bathing services to Nonparty 18

① The beneficiary Nonparty 18 is Nonparty 19’s spouse and Nonparty 20 is Nonparty 19’s caregiver.

② From February 2011 to June 201, 2011, Nonparty 18 provided Nonparty 18 with a visiting bath service, and Nonparty 20 did not visit at the time of actual bathing. However, the Plaintiff claimed expenses for long-term care benefits as Nonparty 19 and Nonparty 20 provided a visiting bath service, and received KRW 659,568 from the Defendant.

F. Provision of visiting medical care services to Nonparty 21, Nonparty 22, Nonparty 23, and Nonparty 24

The Plaintiff was paid KRW 7,761,891 in total by the Defendant, rather than by Nonparty 25, Nonparty 26, and Nonparty 27, from September 201 to April 2013, 2013, to Nonparty 21, Nonparty 22, Nonparty 23, and Nonparty 24, who actually provided visiting care services.

G. On-site investigation and recovery decision of the Defendant’s medical center of this case

① From June 10, 2013 to June 13, 2013, the Defendant and the head of Seodaemun-gu conducted an on-site investigation into the instant medical center by setting the investigation period from February 10, 201 to April 2013.

② On October 18, 2013, the Defendant notified the Plaintiff of the restitution decision of KRW 57,435,260, total expenses for long-term care benefits on the following grounds (hereinafter “instant disposition”).

Part I of the Notice on Long-Term Care Expenses, etc. (amended by Ministry of Health and Welfare No. 2013-160, Oct. 16, 2013; hereinafter “the Notice”). Paragraph 3 of Article 1 provides that “the expenses shall not be calculated for long-term care benefits provided to the beneficiaries admitted to social welfare facilities pursuant to other Acts and subordinate statutes” (the designation of December 1, 2005; hereinafter “the facility of this case”) is not only the beneficiary of this case who did not request the care expenses for the visit to Non-Party 1 and Non-Party 2, who provided Non-Party 1 and Non-Party 2 to Non-Party 1, who did not request the care expenses for the visit to Non-Party 5, who did not request the care expenses for the visit to Non-Party 2. The non-Party 1 and Non-Party 3 jointly provided the care expenses for non-Party 1’s accommodation to Non-Party 2, who actually visited the facility of this case and provided the care expenses for non-party 10 days.

2. Relevant statutes;

Attached Form "Related Acts and subordinate statutes" shall be as stated.

3. Determination on the recovery of expenses for long-term care benefits against Nonparty 2 and Nonparty 3

A. The plaintiff's assertion

1) The subject of the Act on Long-Term Care Insurance for the Aged may not be interpreted as limited to “family”. The instant facility ought to be included in the subject of the re-payment given that Nonparty 2 and Nonparty 3 actually engaged in daily life at home of the said contractor. Moreover, the recognition of the provision of the re-payment also accords with the principle of equality, given that the instant facility is a private facility that does not receive subsidies from the State or a local government, and thus, the Plaintiff’s provision of long-term care benefits to those who are located in the instant facility does not constitute double benefits.

2) Chapter I.3 of the instant notice provides that “The expenses for long-term care benefits provided to beneficiaries who are admitted to social welfare facilities under other Acts and subordinate statutes shall not be calculated.” However, Article 17(1) of the Enforcement Rule of the Long-Term Care Insurance Act provides that home care benefits, facility benefits, and special cash benefits may not be received in duplicate, and it does not prohibit payment in duplicate with benefits paid pursuant to Acts and subordinate statutes other than the Long-Term Care Insurance Act. Therefore, the prohibition of the supply of long-term care benefits by deeming the payment of long-term care benefits as duplicate benefits is null and void as it goes beyond the scope delegated by the Act on Long-Term Care Insurance for the Aged and the Enforcement Rule thereof.

3) The Defendant issued a written approval for long-term care to Nonparty 2 and Nonparty 3, and the head of Eunpyeong-gu Office, based on the written approval above, issued a “determination and request for use of a long-term care beneficiary institution” to the Plaintiff, and provided long-term care benefits to Nonparty 2 and Nonparty 3 with trust and trust. Therefore, the Defendant’s disposition of this case on the ground that the instant facility was a social welfare facility is late goes against the principle of trust and the principle of prohibition

B. Determination

1) The effect of the public notice that served as the basis for the instant disposition

A) The key issues of this part

Article 34(1) of the Constitution provides that “All citizens shall have the right to live a life worthy of human dignity,” and Article 34(5) provides that “The State shall be protected by the Act, as prescribed by the Act.” Accordingly, the Act on Long-Term Care Insurance for Older Persons who are unable to carry out alone due to elderly persons or sex diseases, etc. Accordingly, the Act on Long-Term Care Insurance for Older Persons who are 65 years of age or older shall be provided with home care benefits (long-term care benefits that a long-term care worker visits home, etc. of a beneficiary, and provides for the criteria, procedure, method, and scope of provision of long-term care benefits, and other necessary matters (Article 23(1)1(a) and (3)). The Enforcement Rule of the Act on Long-Term Care Insurance for Older Persons shall also stipulate matters necessary for the detailed method and items of calculation of such benefits (Article 39(3)). Accordingly, expenses for the long-term care benefits shall be calculated based on the hours of visit, and the Minister of Health and Welfare shall provide detailed guidelines.

However, Chapter I.3 of the instant notice, which is determined by the Minister of Health and Welfare, provides that “The cost of long-term care benefits (including welfare instruments) provided to beneficiaries admitted to a social welfare facility (including a facility established and operated without reporting pursuant to Article 34(2) of the Social Welfare Services Act) pursuant to other Acts and subordinate statutes shall not be calculated,” as a general principle for calculating cost of long-term care benefits, is excluded from the subject of calculation of cost of long-term care benefits.”

In this case, the issue is whether the right to receive long-term care benefits is in violation of the Constitution and whether the right to receive long-term care benefits is illegal beyond the delegation scope of the Act on Long-Term Care Insurance for the Aged Corporation and the Enforcement Rule of the Act on Long-Term Care Insurance for the Aged Corporation for the Aged Corporation for the Aged and Non-Party 3 were admitted without receiving subsidies from the State or local governments.

In accordance with Article 107(2) of the Constitution of the Republic of Korea, this Court should judge whether the part concerning the non-party 2 and the non-party 3 among the disposition of this case regarding the violation of the Constitution of the Republic of Korea among the "social welfare facilities pursuant to other Acts and subordinate statutes" under Chapter I. 3 of the Public Notice of this case, which is the basis of such determination, is unconstitutional or unlawful (hereinafter "public notice of this case").

B) Whether the public notice of this case subject to adjudication is unconstitutional or invalid by infringing the right to equality under Article 11(1) of the Constitution

(1) The scope of protection under Article 11(1) of the Constitution and the limitation of constitutional rights

Article 11(1) of the Constitution provides, “All citizens shall be equal before the law, and no person shall be discriminated against in all areas of political, economic, social, or cultural life on the basis of gender, religion, or social status.” The principle of equality based on which the principle of equality is based is prohibited, in essence, from arbitrarily treating the same thing, and it means not only in the application of statutes but also in the enactment of statutes (see Supreme Court en banc Decision 2007Du8287, Nov. 20, 2008).

However, the instant public notice subject to the adjudication provides that a beneficiary who is admitted to a social welfare facility which does not receive subsidies from the State or a local government (hereinafter “facility beneficiary”) shall not receive long-term care benefits, thereby allowing the beneficiary to be treated differently from the beneficiary who lives in his/her own (hereinafter “self-beneficiary”).

The right of facility beneficiaries to receive long-term care benefits without discrimination falls under the scope of protection under Article 11(1) of the Constitution. The subject matter of adjudication in this case is to restrict the right to equality guaranteed by Article 11(1) of the Constitution by preventing a facility beneficiary from receiving long-term care benefits even if the social welfare facility is not provided by the State or a local government on the ground that the facility beneficiary is admitted to the social welfare facility.

(2) Whether restrictions on equal rights guaranteed by Article 11(1) of the Constitution are justified, etc.

(A) Criteria for adjudication on constitutionality

In general, the examination requirement of the principle of prohibition of arbitrary rights, which is the standard for determining whether the right to equality is infringed under Article 11(1) of the Constitution, can be seen as the existence of discrimination related to whether the same is treated differently in essence.

On the other hand, the determination of whether two comparative groups are essentially identical to the above conditions is based on the meaning and purpose of the relevant provisions of the Constitution and the relevant provisions of the law, and in relation to the requirements for (b) (see, e.g., Constitutional Court Order 2001HunBa64, Jan. 30, 2003). In addition, in order to say that discrimination is based on reasonable grounds in relation to the rights under the Constitution, the purpose of the discrimination should be a legitimate purpose in conformity with the Constitution, and the criteria for discrimination should be a substantial relationship for the realization of the purpose, and the degree of discrimination should be appropriate (see, e.g., Constitutional Court Order 93HunBa57, Aug. 29, 196).

(B) Identity of comparative groups

Since it is necessary to receive support for physical activities, household activities, nursing care, etc., or cash payment in lieu thereof as a result of difficulties in performing daily life alone due to reasons such as elderly persons or elderly persons, as long as long as the requirements for the supply of long-term care benefits under the Act on Long-Term Care Insurance for the Aged are met, the two are essentially similar groups

(C) Whether there are reasonable grounds for discrimination

In full view of the following circumstances, comprehensively taking account of Article 34(1) and (5) of the Constitution and the provisions related to the Long-Term Care Insurance for the Aged, etc., the instant public notice subject to adjudication is unconstitutional and invalid by infringing on the right to equality under Article 11 of the Constitution, as it excludes a facility beneficiary from the beneficiary of long-term care benefits without reasonable grounds.

(1) The reason why the Act on Long-Term Care Insurance for Older Persons included the home care benefits for visiting long-term care benefits is to support the physical activities or household activities of older persons, etc. who are difficult to carry out daily life alone due to elderly persons or gender diseases

(2) A facility beneficiary needs to support physical or household activities. If a facility beneficiary is able to visit a home only when he/she visits a home of the beneficiary, there is no substantial room to look at the beneficiary, and in cases of a facility beneficiary who resides in a communal living home of the disabled and has no family member, there is unreasonable result that he/she is unable to receive a visiting care among the benefits for long-term care insurance

③ The subject matter of the instant judgment appears to be not to provide long-term care benefits under the Act on Long-Term Care Insurance for the Aged because social welfare facilities under other Acts and subordinate statutes are able to be provided with daily life support, etc. corresponding to the long-term care benefits. The instant facilities are merely operated with the places where Nonparty 4 personally operates with Nonparty 5, his wife, and the amount paid by persons residing therein (the residents of the instant facilities pay KRW 550,000 to Nonparty 4 every month for living expenses) and donation support payments, etc., and there is no need for the Defendant to provide facility benefits under the Act on Long-Term Care Insurance for the Aged of the instant facilities.

④ Nonparty 2 and Nonparty 3, who live in the instant facility, need to provide long-term care benefits under the Act on Long-Term Care Insurance for the Aged with a disability who suffers from brain diseases, disorders, etc.

⑤ Even if a person who resides in the instant facility including Nonparty 2 and Nonparty 3 is a basic living beneficiary, the benefits therefrom are separate from long-term care benefits under the Act on Long-Term Care Insurance for Older Persons, and thus, it is difficult to deem that the benefits were paid in duplicate to Nonparty 2 and Nonparty 3.

(6) The Defendant issued a written approval for long-term care to the beneficiaries despite being admitted to the instant facility by Nonparty 2 and Nonparty 3. Based on the written approval, the head of Eunpyeong-gu issued a written approval for long-term care to the Plaintiff on the basis of the foregoing recognition, and the head of Eunpyeong-gu issued a long-term care benefit to the Plaintiff and Nonparty 2 and Nonparty 3. As such, taking advantage of the Plaintiff’s belief that not only the beneficiaries of home care but also the beneficiaries of facilities who were not supported by the State or the local government as beneficiaries of long-term care benefits, there is no reasonable ground for discrimination among them, and the Defendant’s late disposition of this case on the ground that the instant facility was “social welfare facilities under other Acts and subordinate statutes.”

C) Whether the instant public notice subject to adjudication exceeded the delegation scope of the Act on Long-Term Care Insurance for the Aged and its Enforcement Rules, and is unlawful and invalid

(1) Relevant legal principles

Where a provision of a statute grants authority to determine the specific matters of the statute to a specific administrative agency and an administrative agency does not specify the procedure or method of exercising its authority, and the delegated administrative agency specifically determines matters that are to be the contents of the statute in the form of a public notice, which is an administrative rule, the public notice is effective as an external binding order, unless it goes beyond the delegated limit of the pertinent statute (see, e.g., Supreme Court Decisions 2007Du4841, Apr. 10, 2008; 2012Du2658, Apr. 11, 2013).

In a case where a statute delegates a certain matter to a subordinate statute, the determination of whether the subordinate statute complies with the limits of delegation ought to be made by comprehensively examining the legislative purpose and contents of the relevant provision, the structure of the provision, and the relationship with other provisions. Even though the delegation provision itself has made clear the limits of delegation by using terms with which the meaning can be accurately known, if the enforcement decree exceeds the limits of its literal meaning, or if it is deemed that a new legislation was made beyond the stage of embodying the contents of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the limits of its literal meaning, it is not allowed as it deviates from the limits of delegation. Nevertheless, the subordinate statute that deviates from the scope of delegation is null and void, and thus, a disposition based on the invalid subordinate statute is deemed unlawful.

(2) As examined in the above paragraph (a), the instant notice is determined pursuant to delegation of the Act on Long-Term Care Insurance for the Aged and the Enforcement Rules thereof, and considering the following circumstances as a whole, the instant notice subject to the adjudication exceeded the delegation scope, and the instant notice subject to the adjudication is unlawful and invalid since it exceeded the delegation scope of the Act on Long-Term Care Insurance for the Aged and the Enforcement Rules thereof.

① Article 23(1)1(a) of the Act on Long-Term Care Insurance for Long-Term Care Workers provides that long-term care workers are long-term care benefits to visit a beneficiary’s “family, etc.” to provide support for physical activities and household activities. In other words, given that a beneficiary who is admitted to a social welfare facility pursuant to other Acts and subordinate statutes needs to support his/her physical activities and household activities, such inclusion in the beneficiary’s expenses for long-term care benefits is in accord with the legislative intent.

② Article 39(1) of the Long-Term Care Insurance Act provides that “The Minister of Health and Welfare shall determine and publicly announce expenses for home care and institutional care benefits after deliberation by the Long-Term Care Committee under Article 45 according to the type of benefits, long-term care class, etc.” and Article 39(2) provides that “The Minister of Health and Welfare may consider whether the State or a local government has received subsidies for the establishment of a long-term care institution, as prescribed by Presidential Decree, when determining expenses for home care and institutional care benefits pursuant to paragraph (1).” Here, considering whether the State or a local government has received subsidies for the establishment of a long-term care institution in calculating expenses for home care benefits, it appears to the purport of restricting long-term care benefits only to cases where a beneficiary is admitted to a social welfare facility subsidized by the State or a local government in order to prevent overlapping benefits from receiving benefits from the State or a local government. Therefore, restricting long-term care benefits even in cases where the social welfare facility does not receive subsidies or establishment expenses from the State or a local government does not violate the legislative intent of Article 39(1) and (2).

(3) The purpose of the Act on Long-Term Care Insurance for Older Persons is to improve the quality of life of citizens by providing for matters concerning long-term care benefits, such as physical activities and support for household activities, which are provided to older persons who are difficult to carry out alone on their daily lives on their own due to elderly diseases, etc. In order to improve the quality of life of citizens by promoting the improvement of health of older persons and stabilizing their livelihood stability, and lowering the burden on their families. For reasons such as family care rather than home care recipients who live together with their family members, there is a need for beneficiaries of facilities admitted to social welfare facilities, especially social welfare facilities where establishment expenses or subsidies are not provided by the State and local governments, to be more eligible for long-term care benefits. It is difficult to view that the Enforcement Rule of the Act on Long

D) Therefore, given that the instant public notice subject to adjudication is inconsistent with the Constitution and is null and void beyond the scope of delegation of the Act on Long-Term Care Insurance for the Aged and its Enforcement Rules, the “the relevant part between Nonparty 2 and Nonparty 3” based on the public notice subject to adjudication of the instant disposition is unlawful.

2) The Defendant’s assertion that the Plaintiff’s provision of visiting medical care benefits for all visitors to the instant facility could not be calculated against the instant public notice.

A) The defendant's argument

Part 1 of the Notice No. 7.7 (c) of this case provides that "home visit benefits shall be provided entirely to one beneficiary during the pertinent visiting hours, and where home visit benefits are provided simultaneously or in succession to two or more beneficiaries, no allowance shall be calculated." The plaintiff and caregiver provided visiting medical care benefits to the non-party 2 and the non-party 3, and since the plaintiff and caregiver provided visiting medical care benefits to both applicants of the instant facility, the costs for visiting medical care benefits provided by the plaintiff and caregivers to the non-party 2 and the non-party 3 cannot be calculated.

B) Determination

The purpose of Chapter II.7. (c) of the instant notification is to prevent the Plaintiff from claiming the cost of visit medical care benefits for all beneficiaries after visiting the same place at the same time or in order.

According to evidence Nos. 14-1 through 7 of evidence Nos. 14-7, considering that the plaintiff and caregiver visited the facility of this case where the non-party 2 and the non-party 3 are admitted to the facility of this case, the plaintiff and caregiver provided the non-party 2 and the non-party 3 with the visit medical care benefits, such as taking care of their good faith, taking care of the interview, taking care of the plaintiff and the non-party 2 and the non-party 3, taking care of the fact that the plaintiff and the caregiver provided the non-party 2 and the non-party 3 with the meals of other inmates, the plaintiff et al., and providing them with the other prisoners in good faith, the defendant's assertion cannot be accepted, since the plaintiff and the caregiver provided the medical care benefits at the same time or in order.

3) Sub-determination

Therefore, among the dispositions in this case, “the part related to Nonparty 2 and Nonparty 3” should be revoked in an unlawful manner.

4. Determination on the recovery of expenses for long-term care benefits against Nonparty 10 by beneficiaries

A. The plaintiff's assertion

According to Chapter I.1.(b) of the Notice of this case, when a medical care is provided twice a day, 4-hour visit care is provided at intervals of 4-hours after 4-hour visit care is provided. The above 2-hours ought to be considered as the break time of caregivers. Therefore, even if a caregiver continued to reside in his/her home, 4-hour visit care is provided after 4-hour visit care and 4-hour visit care is provided again for 4-hours after 4-hour visit care is provided.

B. Determination

Part I.1 (a) of the instant notification provides that “The expenses for the care of visit shall be calculated on the basis of the hours for which the care of visit is provided for 30 minutes or more,” and that KRW 11,110 shall be calculated on the basis of the hours for which the care of visit is provided, KRW 17,060, and KRW 42,440 shall be calculated on the basis of the period for which the care of visit is provided for 4 hours or more per visit. According to Article 2.1(a) of the instant notification, even if the care of visit is provided for 4 hours or more per visit, the expenses for the care of visit shall be calculated within the scope of KRW 42,40 shall be calculated on the basis of the period for which the care of visit is provided for 4 hours or more per visit, and the period for the visit shall be two hours or more per day. Where the period for which the care of visit is provided for less than 2 hours, the total period for each care of visit shall be calculated on the basis of the distance from the near place of residence.”

As such, ① Expenses for medical care benefits are not calculated in accurately in proportion to the time when the visit medical care was provided, and even if the visit medical care was provided for more than four hours, it should be calculated within 42,440 won at the same time as the visit medical care was provided for four hours. ② In light of the fact that the visit medical care was provided by a long-term care worker who visited the beneficiary’s home, etc. to support physical and household activities, it is reasonable to deem that the visit medical care expenses include expenses, such as transportation expenses, etc. for visiting the beneficiary’s home.

In cases where a visiting medical care worker provided a visiting care for four hours, and takes a rest for two hours and provides a visiting care again for four hours, the costs of transportation, etc. included in the expenses for the visiting medical care benefits are not required. As such, since the visiting medical care worker provided a visiting care for four hours, the costs of the visiting medical care worker cannot be calculated equally in cases where the visiting medical care worker provided a visiting care for four hours at the home, etc. of the beneficiary and then visited the beneficiary's home, etc. after two hours, and then visiting the beneficiary's home, etc.

Therefore, even if Nonparty 13 provided visiting care for 4 hours to Nonparty 10 and stayed in Nonparty 10’s home, etc. for 2 hours, and again provided visiting care for 4 hours, the cost of visiting care benefits should be calculated once in accordance with Chapter I.1(b) of the instant notice. The Plaintiff’s assertion on this part is without merit.

5. Determination on the recovery of expenses for long-term care benefits against Nonparty 14 and Nonparty 15

A. The plaintiff's assertion

1) Summary of the Plaintiff’s assertion

Part II.5 No. 5 of the instant notice provides a visiting bath, which provides that “The physical cleaning process shall be provided by two or more caregivers (hereinafter “the instant notice”). However, there are many cases where the beneficiary, a beneficiary, feel a sense of shame in exposing the body to a person other than his/her family or a person other than his/her family, in Korean culture that does not seem easily to the other. Nevertheless, the instant notice of the subject of judgment violates the human rights of the beneficiary, thereby infringing upon the beneficiary’s human rights, and thus, it is unconstitutional and invalid against Article 34(4) of the Constitution which provides for the State’s duty to implement policies to improve the welfare of the elderly, and thus, the part concerning Nonparty 14 and Nonparty 15 of the instant disposition based on the unconstitutional and invalid notice should be revoked.

2) In accordance with Article 107(2) of the Constitution, the Court shall make an adjudication on the unconstitutionality and illegality of the notice of this case, which served as the basis for the determination of whether the part concerning the non-party 14 and the non-party 15 among the dispositions in this case should be revoked illegally.

B. Determination

1) Whether the notice of this case subject to adjudication is unconstitutional or invalid because it infringes on the beneficiary’s constitutional rights

A) As seen in Article 3.2(1)(c) of the instant Notice, the public notice of the subject of adjudication has the form of administrative rules, but can be a legal order with external binding force. As seen in Chapter 3.2(1)(c) of the instant Notice, it is difficult to view that the provision of benefit is a provision providing a visiting bath. However, in cases where the State intends to exercise its influence on an individual’s decision-making by failing to meet the requirements for a specific act, the State’s exercise of its influence through the provision of benefit may be similar to the effect of an order in substantial effect. In such cases, not a legal enforcement such as an order, enforcement, sanctions, etc., but a de facto compulsory enforcement that takes place from the de facto dependence on the benefit. To ensure that the provision of benefit by the State has the nature of restricting the right to freedom, it should be recognized that it is similar to the effect of compulsory enforcement of a specific act to the specific requirements for the provision of benefit should be recognized as having the same effect as the effect of compulsory enforcement of the State.

However, due to the public notification of the subject of the instant case, the recipient is exposed to a third party (other than family caregiver, etc.) who does not wish to do so against his will when he receives a bathing of visit. Of course, the recipient may not be exposed to another person against his will by refusing to receive a bathing of visit, but in general, the recipient who is provided with bathing of visit needs to assist another person because it is difficult for the recipient to voluntarily take a bath. In addition, even if there is a family caregiver, there is only two family caregiver, and two family caregivers, who are unable to take a bath, are provided with bathing of visit. Accordingly, the recipient is practically forced to be exposed to another person by the public notification of the subject of the instant case unless two family caregivers are appointed. Accordingly, the subject of the instant public notification of the subject of the instant case can be recognized as a restriction on the right to freedom.

Meanwhile, Article 10 of the Constitution provides that “All citizens shall have dignity and value as human beings and have the right to pursue happiness.” Article 17 of the Constitution provides that “All citizens shall not be infringed on the secrecy and freedom of privacy.” Since the public notice subject to adjudication of this case allows others who do not want to feel a sense of shame by exposing their body against their will, thereby causing them to feel a sense of shame, the right not to infringe on the confidentiality and freedom of privacy protected by Article 17 of the Constitution and the general personal rights derived from the dignity and value of Article 10 of the Constitution (see, e.g., Constitutional Court Order 89HunMa160, Apr. 1, 1991; Constitutional Court Order 2008Hun-Ma517, Nov. 27, 2008).

B) The purpose of this case’s public announcement is to provide two caregivers with the process of unconstitutionality for the safety of the recipients. However, when two caregivers provide bathing benefits to the recipients, the recipients’ “persons who are their family members,” or “the same-sex caregivers who are the recipients,” and when two or more caregivers feel a sense of shame in the provision of visiting bathing services, it cannot be deemed an appropriate means to achieve the above purpose if the recipients are forced to provide the process of unconstitutionality for their safe bathing services (see, e.g., Supreme Court Decision 200Du1548, Apr. 2, 2006). However, given that two caregivers are forced to take care of the recipients’ personal rights to use the same-sex caregivers (see, e.g., Supreme Court en banc Decision 200Du1448, Feb. 2, 2008).

2) Whether the instant public notice subject to adjudication exceeded the scope of delegation by the Act on Long-Term Care Insurance for the Aged and its Enforcement Rules, and is unlawful and invalid

As examined above 3. B.(1)(A), the notice of this case is determined by delegation of the Act on Long-Term Care Insurance for the Aged and its Enforcement Rules. In full view of the following circumstances, the notice of this case exceeds the scope of delegation, and the related provisions can be comprehensively considered, the notice of this case is illegal and invalid since it exceeds the scope of delegation of the Act on Long-Term Care Insurance for the Aged and its Enforcement Rules.

① Article 39(3) of the Long-Term Care Insurance for the Aged Act provides that matters necessary for the detailed calculation method, items, etc. of the cost of home care benefits, such as visiting bathing, shall be prescribed by Ordinance of the Ministry of Health and Welfare. Article 32 Subparag. 1(b) of the Enforcement Rule of the same Act provides that the cost of home care benefits shall be calculated based on the number of visits, and detailed calculation standards shall be determined and publicly notified by the Minister of Health and Welfare. The said provision stipulates that detailed calculation standards for the cost of home care benefits shall be established in a

② Accordingly, Chapter 2.2. of the instant public notice, which the Minister of Health and Welfare determines, provides two or more caregivers with the visit bathing service, and the former part of Article 5. of the instant public notice provides that visiting bathing service shall include preparation for bathing, preparation for bathing, assistance in travelling at the time of bathing, body cleaning agent, hair strawing device, clothes strawing, and arrangement of surrounding areas after bathing.

③ Since there is a high risk that a beneficiary will be injured during the “time of moving,” it is possible to fully understand that two or more caregivers will be subsidized, and that if a beneficiary takes it, it will not be calculated as expenses for bathing benefits. It also conforms with the legislative intent of the Act on Long-Term Care Insurance for Older Persons. However, two caregivers will not make it difficult for a beneficiary to take care of his/her body and make it difficult for him/her to take care of his/her body and make it difficult for him/her to take care of his/her body and make it difficult for him/her to take care of his/her body and make it difficult for him/her to take care of his/her body and make it difficult for him/her to take care of his/her body and make it difficult for him/her to take care of his/her body and make it difficult for him/her to take care of his/her body and make it difficult for him/her to take care of his/her body after taking care of his/her body and body.

④ In the provision of visiting bathing services, two caregivers are required to prepare for bath, take a bath, wear clothes, take clothes, take bathing, and take other care of their surroundings. If one caregiver, among caregivers, feel a sense of shameing his body, only one caregiver, is required to take care of the body, and during that period, other caregivers are not calculated as expenses for visiting bathing pursuant to the notice subject to the judgment of the instant case, on the ground that the other caregiver, while waiting in the surroundings, performed another work, is not anticipated through the legislative intent of the Act on the Long-Term Care Insurance for the Aged or the Enforcement Rule thereof.

3) Sub-determination

Therefore, the public notice of this case subject to adjudication is inconsistent with the Constitution and is null and void beyond the scope of delegation of the Act on Long-Term Care Insurance for the Aged and its Enforcement Rules. As such, “the beneficiary Nonparty 14 and Nonparty 15,” based on the public notice of this case subject to adjudication, should be revoked illegally.

6. Determination on the recovery of expenses for long-term care benefits against Nonparty 18 by beneficiaries

A. The plaintiff's assertion

Although Nonparty 19 along with Nonparty 20, who is his father, did not take the bath of Nonparty 18, Nonparty 19 is considered to have taken the bath of Nonparty 18. However, Nonparty 19 is deemed to have taken the bath of Nonparty 18 at the time of Nonparty 18’s fraudulent act and her child’s mistake.

B. Determination

1) Relevant legal principles

Unless special circumstances exist, such as that if an administrative agency received a written confirmation from the other party to an investigation as to specific violation facts in the course of conducting an on-site investigation, it is difficult to readily deny the evidence of such written confirmation, barring special circumstances, such as that the written confirmation was forced against the will of the originator, or it is difficult to consider it as evidentiary materials for specific facts due to lack of details (see Supreme Court Decision 2001Du2560, Dec. 6, 2002).

2) Based on the legal principle of the above Paragraph 1, the following circumstances can be seen, i.e., the Plaintiff: (a) prepared to the head of Seodaemun-gu on June 13, 2013 a written confirmation that Nonparty 19 provided the married Nonparty 18 with bathing benefits; (b) drafted the written confirmation to the head of Seodaemun-gu on June 12, 2013; and (c) even if Nonparty 19 expressed Nonparty 18 with Nonparty 18 with Nonparty 18’s fraud or children, it is difficult to view that two caregivers were humping Nonparty 18; and (b) in light of the following circumstances, it is reasonable to deem that Nonparty 19 provided Nonparty 18 with bathing benefits, despite Nonparty 19’s offering Nonparty 19 with bathing benefits, the Plaintiff’s assertion that the Plaintiff provided Nonparty 20 and Nonparty 18 with bathing benefits.

7. Conclusion

Therefore, the part of the decision to recover KRW 41,490,80 as to Nonparty 2 and Nonparty 3 and the part of the decision to recover KRW 4,462,189 as to Nonparty 14 and Nonparty 15 as to Nonparty 15 is unlawful, and the remaining part of the decision to recover KRW 11,482,271 (=5,435,260 - 41,489,80 - 41,462,189) is legitimate.

The plaintiff's claim is justified within the scope of seeking revocation of the part exceeding KRW 11,482,271 of the disposition of this case, and the remainder is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is partially accepted and the judgment of the court of first instance is modified as above.

[Attachment] Relevant Statutes: omitted

Judges Kim Jong-soo (Presiding Judge)