Law Firm LLC et al., Counsel for the defendant-appellant

Attorney Lee Jong-ho et al., Counsel for the defendant

The costs of appeal shall be borne by the plaintiff.

1. Matters subject to disposition of unjust enrichment collection;

A. If medical care benefits have been provided at a medical institution that was not lawfully established in violation of Article 33(2) of the Medical Service Act, inasmuch as the given medical institution does not constitute a medical care institution that is entitled to claim medical care benefits under the National Health Insurance Act, the given medical care benefits cannot be included in the subject of medical care benefits under the National Health Insurance Act (see Supreme Court Decision 2014Da229399, May 29, 2015).

B. The lower court determined that the medical care benefit cost paid to a medical care institution established by a non-medical person under the name of a person qualified to establish a medical institution is subject to a disposition of unjust enrichment collection. Such determination of the lower court is based on the principle of illegality, and it did not err by misapprehending the legal doctrine on the collection of unjust enrichment under the National Health Insurance Act.

2. The founder of a medical institution determined that the instant hospital was a medical institution that was established and operated under the name of the medical consumer cooperative (the original co-Plaintiff; hereinafter referred to as the "social cooperative") of 000 on March 28, 2014, by the Plaintiff, who is unable to establish a medical institution on the grounds as indicated in its holding. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the due diligence, contrary to logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. Deserting or abusing discretionary power;

A. Article 57(1) of the National Health Insurance Act provides that "the Corporation shall collect all or part of the amount equivalent to the expenses for insurance benefits or insurance benefits from a person who has received insurance benefits or a medical care institution that has received insurance benefits by deceit or other unjust means." The above provision provides that it is possible to collect part of the language and text. The legislative intent is to ensure the soundness of the finance for health insurance and medical benefits through the maintenance of a desirable benefit system by preventing a medical care institution from claiming the payment of expenses for benefits by unjust means (see Constitutional Court Order 2010Hun-Ba375, Jun. 30, 201). However, given that a medical care institution as a medical care institution is unable to receive the expenses for the medical care benefits already provided due to the collection of unjust enrichment, it is infinite nature. Considering the content and stay of such unlawful provisions, legislative intent, and legal nature of the collection of unjust enrichment, it is reasonable to deem that the collection of unjust enrichment under Article 57(1) of the National Health Insurance Act is discretionary act.

B. Meanwhile, the former National Health Insurance Act only stipulates that the person who is unable to establish a medical institution in violation of Article 33(2) of the Medical Service Act can collect unjust enrichment only from the medical institution that received insurance benefit costs. However, Article 57(2) of the National Health Insurance Act newly established on May 22, 2013, which was newly established on the ground that “Where the medical institution that received insurance benefit costs by deceit or other unjust means pursuant to Article 57(1) falls under any of the following subparagraphs, the Corporation may require the person who established the relevant medical institution to pay money in accordance with the same provision jointly with the medical institution.” The first provision provides that “a medical institution established and operated by a person who is unable to establish a medical institution in violation of Article 33(2) of the Medical Service Act by borrowing the name of the medical person’s license or any other medical corporation, and provided the basis for collecting unjust enrichment from the non-medical person who established the medical institution in full. In the instant case, the Defendant rendered the full disposition to the non-party 2 that was paid to the Plaintiff:

The unjust enrichment collection stipulated in Article 57 (2) of the National Health Insurance Act is also a discretionary act.

However, “the act of establishing a medical institution by non-medical persons” prohibited under Article 33(2) of the Medical Service Act means the act of primarily managing the facilities and personnel of the medical institution by non-medical persons, including the recruitment and management of the medical institution and the establishment report, the performance of medical business, the raising of necessary funds, and the reversion of the performance of the management (see Supreme Court Decision 2018Do10779, Nov. 29, 2018). Therefore, in determining whether collecting the total amount of medical care benefits for non-medical persons, who are de facto founders, within the scope of discretionary authority, the circumstances such as the fact that the non-medical person is in charge of the leading role in the process of establishing and operating the medical institution, the degree of illegality thereof, and the fact that profits and losses from the operation of the medical institution are attributed to the founder of non-medical persons.

C. Examining the circumstances revealed in the record and the judgment of the original court, the following facts are revealed: “The Plaintiff, who is a de facto founder, established the instant hospital in the name of the non-party living cooperative despite the absence of the entitlement to establish the medical institution, and (Violation of the Medical Service Act); and (i) concealed the fact that the instant hospital was established and operated in the name of the Plaintiff without the entitlement to establish the medical institution due to the lack of the substance of the non-party living cooperative; and (ii) was paid by the Defendant for medical care benefits by means of the Defendant (Fraud), who was sentenced to a suspended sentence of three years in January 1 and June; (iii) was sentenced to a suspended sentence of three years for criminal facts; and (iv) was well aware that the Plaintiff was able to establish the medical care institution only with the qualification of the Plaintiff, such as medical personnel; (iv) however, the instant disposition was deemed to constitute deviation from and abuse of discretionary power.

We affirm the judgment of the court below that the decision of the court below was not made. In so determining, the court below did not err by misapprehending the legal principles on the principle of proportionality, deviation and abuse of discretionary power, etc.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-hyung

Justices Min You-sook of the District Court

Justices Lee Dong-won