2. National Health Insurance Corporation;

2. The plaintiff's claim against the defendant National Health Insurance Corporation is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant is borne by the said Defendant, and the part arising between the Plaintiff and the High National Health Insurance Corporation, respectively.

The following facts are not disputed between the parties, or may be recognized by comprehensively taking into account the purpose of the body of pleadings in Gap evidence Nos. 3, 6, and 7:

A. From 653-20 to 6th, Seoul △△△-dong, the Plaintiff opened and operated a Danal (hereinafter referred to as the “instant member”) which is a medical care institution under the National Health Insurance Act (hereinafter referred to as the “Act”).

나 . 피고 보건복지부장관은 2003 . 8 . 29 . 부터 2003 . 9 . 3 . 까지 이 사건 의원에 대하 여 국민건강보험 현지조사를 한 결과 , 원고가 2002 . 6 . 1 . 부터 2003 . 2 . 28 . 까지의 진료 기간 동안 간경화증 등의 상병에 급여 대상인 간기능 검사 , 전혈구 검사 등을 실시하 고 규정된 본인 부담금을 초과하여 15 , 000원 내지 20 , 000원씩을 징수하고 , 라에넥주 , 네오미노화겐씨주 20㎖ , 삐콤헥사주사 , 광명아스코르빈산주사 , 제일 염산치아민주사액 등을 생리식염수에 혼합하여 주사하고 규정된 본인 부담금을 초과하여 1회분 투여당 80 , 000원 내지 130 , 000원씩을 징수하는 등 수진자들로부터 본인 부담금 168 , 296 , 150원 을 과다하게 징수하였다는 이유로 , 2005 . 9 . 27 . 법 제85조 제1항에 기하여 1년 ( 2005 . 10 . 24 . 부터 2006 . 10 . 23 . 까지 ) 의 요양기관 업무정지처분 ( 이하 ' 이 사건 업무정지처분 ’ 이라 한다 ) 을 하였다 .

C. The defendant National Health Insurance Corporation (hereinafter referred to as the "Defendant Corporation") was notified of the above fact, on October 17, 2005, and was 85,135,650 won (decision number 1 - 0142- - 200510 - 41 - 0016), 68, 919,070 won (decision number 2- 0142- - 2010- 41 - 41,0018), 14, 241, 430 won (decision number 3- 0142- 20510- 410- 00018), and recovered the instant disposition (hereinafter referred to as the "instant disposition of recovery") and the instant disposition of recovery.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff, as 2 years old in Japan, had no intention to collect the patient’s own share in excess of the patient’s own share, sought understanding from the patient in advance and treated it with his consent, and received the medical expenses. This merely resulted from the lack of understanding on the domestic health insurance system, and thus, the Plaintiff cannot be deemed to have committed a violation of Articles 85 and 52 of the Act.

(2) Since the Plaintiff received the instant disposition due to the excessive claim for expenses incurred in medical care, the Defendant’s Minister of Health and Welfare recognized the total amount of expenses incurred in providing medical care as KRW 16,367,930 and calculated the amount in comparison with the above amount, and calculated the unfair rate as 1,00% on 20% on 1,028. Thus, the unfair rate on which the instant disposition was based should be re-calculated on the premise that there is no request for examination of expenses incurred in providing medical care. In addition, even if the Plaintiff should be excluded from the amount of unfair amount, the Defendant calculated the unfair rate by viewing the entire remainder of the amount of expenses incurred in providing medical care as the unfair amount without consideration by the Defendant’s Minister of Health and Welfare.

(3) Article 52(4) of the Act provides that, when a medical care institution receives medical care benefit costs by deceit or other improper means from a policyholder or dependent, the Corporation shall, without delay, pay the amount from the relevant medical care institution to a female policyholder or dependent. Thus, in the event that the Plaintiff calculates the remainder after deducting the legitimate principal charges from the amount received from the recipient who was deemed to have voluntarily paid non-payment under the health insurance system, it shall be deemed that the Defendant’s charges arising from the Plaintiff’s medical care should be refunded to the Plaintiff. Thus, even though the Defendant Corporation should deduct the amount from the unfair amount, the redemption disposition of this case is unlawful.

(4) Article 52(1) and (4) of the Act purporting to prohibit a medical institution from being free to choose whether to designate a medical institution as a medical care institution under the designation system of a medical care institution, which prevents a medical doctor from performing medical treatment with the consent of a patient and collecting medical expenses. Since Article 52(1) and (4) of the Act excessively limits a doctor’s freedom to perform occupational duties and infringes on the patient’s right to receive medical treatment, the instant disposition based on such

(5) Even if not, in light of the fact that the Plaintiff was active in Japan for a long period of time and did not know well the domestic medical reality, that the claim for medical expenses was made under the direction of B, and that B committed a crime of fraud and occupational embezzlement, thereby causing a lot of damages to the Plaintiff, and most patients who received medical treatment from the Plaintiff satisfied the results of medical treatment and were paid medical expenses, the instant disposition was unlawful by abusing discretion.

(b) Relevant statutes;

As shown in the attached Form.

(c) Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap evidence of 1 through 3, Gap evidence of 5, 6, 8, 9, Eul evidence of 2, Eul evidence of 3 and 4, Eul evidence of 5-1, 2, and Eul evidence of 5-1, 6, and Eul of this court's fact inquiry into the chief of the National Health Insurance Review Board of this Court, and the whole purport of the arguments as a result of the fact inquiry into the chief of the National Health Insurance Board of this Court.

( 1 ) 원고는 1954 . 9 . 20 . 일본 교토에서 한국인 아버지와 어머니 사이에서 태어 난 재일교포 2세로서 1980년 일본 ㅁㅁㅁ 대학에서 의학박사 학위를 취득하였고 , 1981 . 6 . 20 . 한국에 와서 보건사회부장관 ( 당시 명칭으로 현재의 보건복지부장관 ) 으로 부터 대한민국 의사면허증을 발급받았다 .

(2) After that, the Plaintiff was active as a doctor for 20 years in Japan’s △△△, and was engaged in the opening of a medical institution in Korea in early 2001 and around June 2001. On July 22, 2001, the Plaintiff opened a ○○○ clinic on the 653-20th floor of Seoul △△△-gu, Seoul, △△△△△-gu, and reported the establishment of a medical institution on June 24, 2002 as the specialized department for medical treatment. < Amended by Act No. 6538, Jun. 24, 2002>

(3) The Plaintiff claimed that Defendant Corporation pay KRW 18,298,870 as medical care benefit costs in relation to the issuance of examination fees and extinctive prescription for ex officio ex officio patients, and Defendant Corporation paid KRW 16,367,930 as the cost of mass benefit on the ground of excessive claim and error in standard.

( 4 ) 원고는 간경화증 등의 상병으로 내원한 수진자들에게 간기능 검사 , 총콜레스 테롤정량 , 빌리루빈정량 검사 등을 실시하고 15 , 000원 내지 20 , 000원을 징수하고 , 주사 제 라에네주 , 네오미노화겐씨주 20ml , 삐콤헥사주사 , 광명아스코르빈산주사 , 제일염산 치아민주사액 등을 생리식염수에 혼합하여 사용하고 1회 주사시마다 별도로 치료약제 비용으로 80 , 000원 내지 130 , 000원씩을 징수하는 등 요양급여 대상인 간경화증 등의 상 병과 관련하여 시행한 약제 , 검사 , 처치 , 주사 등을 임의로 요양급여에서 제외하고 관 계 법령에서 정한 정당한 본인 부담금 ( 사용한 모든 약제를 보험약가로 산출하여 법정 본인부담률 30 % 를 적용 ) 을 초과하여 합계 168 , 296 , 150원을 수진자들로부터 부당하게 지급받았다 .

(5) Around June 2002, the Plaintiff employed B as the head of the office who is in charge of the public relations and general accounting of the instant Council members and the accounting affairs. B embezzled not only 80,500,000 won from the Plaintiff as the loan money or the street funds related to the establishment of a social welfare foundation in Korea, but also embezzled 25 times in total from February 22, 2003 to September 17, 2003 by voluntarily withdrawing the deposit amount under the Plaintiff’s name from the passbook to September 25, 2003.

(6) Examining the calculation details of a one-year period of suspension of business against the Plaintiff by the Defendant Minister of Health and Welfare, the total amount of the medical care benefit cost for the investigation period from June 1, 2002 to February 28, 2003 is KRW 16,367,930, the total amount of the medical care benefit cost for the investigation period from February 1, 2003 is KRW 16,367,930, the total amount of the unfair amount is KRW 168,296,150, the average monthly amount is KRW 18,69,572, and the unfair rate is KRW 1,028.

(7) The medical personnel who received the treatment from the Plaintiff had the effect of the treatment, but the medical expenses were too high to suspend the treatment.

(8) Meanwhile, on July 23, 2004, the Plaintiff closed the instant member of the Council.

D. Determination

(1) Determination as to the assertion of the above A. (1)

Article 85 (1) 1 of the Act provides that "if a medical care institution causes an insurer, a policyholder, or a dependent to bear medical care benefit costs by deceit or other improper means, it may order the medical care institution to suspend its business for a specified period not exceeding one year." Article 52 (1) of the Act provides that "the Corporation shall collect all or part of the amount equivalent to the amount of the insurance benefit costs from the medical care institution that has received the insurance benefit costs by deceit or other improper means." Thus, the above provision does not apply where a medical care institution receives insurance benefit costs from the insurer, the insurer, the organization, or the insured in excess of the medical care benefit standard and the medical fee amount prescribed in the medical care benefit standard and the medical care benefit standard, it does not follow the criteria and procedure set forth in the medical care benefit standard, and it does not conform to the above criteria, and thus, it does not constitute a violation of the medical care institution's normal understanding that the medical care institution would have obtained consent from the patient himself/herself without deceiving himself/herself (see, e.g., Supreme Court Decision 2001Du394.

In addition, sanctions against violations of administrative laws are sanctions against the objective fact of violation of administrative laws by putting a view on the achievement of administrative purposes, and thus, they may be imposed even if there is no intentional negligence on the part of the violator, unless there is a justifiable reason not to mislead the violator of his/her duty (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). Thus, even if the plaintiff is two years in Japan, Japan, Japan, and Japan, and the plaintiff cannot be deemed to have a justifiable reason.

Therefore, the plaintiff's above assertion is without merit.

(2) Determination as to the assertion of the above A. (2)

First of all, the argument that the plaintiff's request for review of the costs of health care benefit corresponds to the case where the plaintiff did not request for review of the costs of health care benefit and that the defendant Corporation should deduct the costs of health care benefit and calculate the unfair amount. According to the above facts, the plaintiff can be found to have received KRW 16,367,930 upon the claim of the costs of health care benefit from the defendant Corporation, and it is unfair to deduct the defendant Corporation's charges from the amount paid in excess of the costs of health care benefit. As such, the plaintiff's allegation in this part is without merit.

Next, we examine the unfair rate of business suspension in the instant case.

Article 61(1) [Attachment 5] 1. A. of the Enforcement Decree of the Act provides that the unfair ratio (%) (total amount of medical care benefit costs x 100 %) shall be calculated. Paragraph (3) of the same Article provides that the total amount of medical care benefit costs shall be the aggregate amount of total medical care benefit costs falling under the period subject to investigation, but if it is impossible to calculate the total amount of medical care benefit costs due to the lack of a request for review of medical care benefit costs, the total amount of unfair medical care benefit costs shall be considered as the total amount of medical care benefit costs. [This is deemed to be determined by considering the quantitative average amount as a quantitative requisition, and the unfair ratio as a qualitative requisition, and the standard for business suspension is a statutory order. However, in light of the content and purport of the delegation provision (Article 85(1) of the Act) of the mother Act and the principle of criticism under the Constitution, etc., the period of business suspension shall be determined not only by the total amount of average average amount, but also by the total amount of personal, social, and non-profit period of 20.

However, in calculating the foregoing unfair ratio, the total cost of health care benefit (the cost directly claimed by the insurer to the Corporation as the insurer’s charge) can be included in the calculation of the amount of 1 million won per minute (the person’s charge that is not directly proportional to the above cost and the medicine cost (the medical care institution is a medical institution) by the issuance of the out-of-the-counter prescription may cause extremely unfair consequences due to lack of reasonable connection between the mother and the molecule. (i.e., one million won was claimed from the Corporation as the insurer’s charge and the remainder of 500,000,000 won was legally claimed from the Corporation, but the unfair ratio would be 50% per annum if the amount of 100,000 won was lawfully claimed from the insurer without performing medical treatment at all, and the unfair ratio would be 50% per cent more than the average amount of 10,000 won per annum and more than the insurer’s charge.

In this case, if the defendant's total amount of 168, 296, 150 won as stated in the disposition by the Minister of Health and Welfare, and 16, 367, and 930 won, which is the total amount of medical care benefit costs for the investigation period, are charged with the above unfair ratio conversion formula, the unfair ratio is 1,028 20% [((168, 296, 150 won 16, 367, 930 won) x 100%) x 100%). Thus, the plaintiff's claim on the method of calculating the unfair ratio is justified within the above scope.

(3) Determination as to the assertion of the above A. (3)

In a case where a medical care institution conducts at will non-benefit medical treatment without following the criteria and procedure set forth in the health insurance benefit standard and medical fee standard, and receives medical expenses in excess of the patient’s charge from the recipient, the insurance benefit cost received by deceit or other unlawful means cannot be deemed as an amount obtained by deducting the insurer’s charge from the medical expenses received from the recipient by deducting the patient’s principal charge calculated by the health insurance cost, or an amount obtained by deducting the insurer’s charge from the above amount (Supreme Court Decision 2003Du13434 Decided October 28, 2005).

see, e.g., see).

Therefore, the plaintiff's above assertion is without merit.

(4) Determination on the assertion of the above A. (4)

Article 52 (1) of the Act provides that "the Corporation shall collect all or part of the amount equivalent to the relevant benefits or expenses for benefits from a person who has received insurance benefits by deceit or other improper means or a medical care institution that has received insurance benefit costs, and Article 52 (4) provides that "if a medical care institution receives medical care benefit costs from a policyholder or dependent by deceit or other improper means, the Corporation shall collect them from the medical care institution concerned and pay them without delay to the policyholder or dependent."

On the other hand, the compulsory designation system of medical care institutions shall provide citizens with adequate medical care benefits for diseases and injuries, and for this purpose, the State, which shall perform the obligation to provide medical care benefits, such as securing a proper number of medical technicians who can provide medical care benefits, and a pharmacy, intends to secure all medical institutions necessary for medical care benefits by compulsorily incorporating all medical institutions into the national health insurance system, thereby guaranteeing the right to receive health insurance for all the insured through which it is justifiable in its purpose, and thus, it cannot be deemed as excessively restricting the freedom of vocational exercise of medical institutions or excessively infringing the right to self-determination of medical consumers (see, e.g., Constitutional Court en banc Decision 99Hun-Ba76, 200Hun-Ma505, Oct. 31, 200).

In addition, since the purpose of health insurance is to guarantee the right to health care benefits of all beneficiaries to improve national health and promote social security, it is necessary to promote equality in the level of benefits in the most economic way in order to provide appropriate health care benefits for diseases and injuries to the people and to ensure the right to health insurance for the people in the reality that the insurance premiums paid by the people and the national treasury's limited financial resources should be provided.

Therefore, as seen in the above D. (1), even if the medical care institution did not comply with the criteria and procedures set forth in the medical care benefit standard and the medical care standard and received non-benefit treatment at will between the patient himself/herself and the patient himself/herself, even if the medical care institution received the medical care expense from the patient himself/herself by mutual agreement, such restriction cannot be deemed to violate each of the above criteria, and thus, even if Article 52(1) and (4) of the Act is governed by Article 52(1) of the Act, such restriction cannot be deemed to have excessively infringed on the patient’s freedom of occupation or the patient’s right to receive medical care, as it is for the sake of

Therefore, the plaintiff's above assertion is without merit.

(5) Determination on the assertion of the above A. (5)

(A) Whether the act of discretion is discretionary

First of all, Article 85 (1) 1 of the Act, which provides that "if a medical care institution imposes medical care benefit costs on an insurer, insured or dependent person by deceit or other improper means, it may order the medical care institution to suspend its business for a fixed period not exceeding one year." Thus, in light of the language, meaning, meaning, purport, etc. of the above provision, it shall be deemed discretionary action.

Next, Article 52 (1) of the Act, which forms the basis for the instant restitution disposition, provides that the Corporation shall collect all or part of the amount equivalent to the relevant benefits or the leisure cost from the medical care institution that received the insurance benefit cost by deceit or other improper means, and Article 52 (4) of the Act provides that "if the medical care institution receives the leisure cost from the insured or dependent by deceit or other improper means, the Corporation shall collect it from the medical care institution concerned and pay it without delay to the insured or the dependent. In light of the language, meaning, meaning, place of employment, etc. of the above provision, it shall be deemed as a continuous act.

(B) The subject of a deviation or abuse of discretionary authority

As above, the disposition of this case’s suspension of business is considered as discretionary act, while the disposition of this case’s suspension of business is considered as binding act, as a result of this case’s recovery disposition, there is no room to intervene in the discretion of Defendant Corporation, and there is no room to regard it as deviation or abuse.

Therefore, the issue of deviation or abuse of discretionary power is limited to the disposition of business suspension in this case.

(C) Whether or not the discretionary authority is deviates or abused

In light of the fact that the Plaintiff was 2 years of age in Japan and did not know well of the domestic medical room for a long time, the unfair ratio itself, which is the premise for the instant disposition of the suspension of business, is unreasonable, the Plaintiff did not claim medical expenses with false content, and appears to have claimed for the purpose of the treatment agreed with the patient. The Plaintiff’s medical treatment appears to have no other damage except for the patient’s treatment effect and excessive collection, and the Plaintiff had already discontinued the Plaintiff’s member, the instant disposition of business suspension that ordered the suspension of business for a period under the provision of the said disposition of the suspension of business was unlawful by abusing and abusing its discretionary authority.

(6) Sub-decisions

Therefore, the Defendant Corporation’s recovery disposition of this case is legitimate, while the Defendant’s business suspension of this case is unlawful.

3. Conclusion

Thus, among the plaintiff's claim of this case, the claim against the defendant is justified.

The claim against the defendant Corporation is dismissed as it is without merit. It is so decided as per Disposition.

Judgment of the Supreme Court

Judges Hong Sung-chul

National Health Insurance Act

Article 39 (Medical Care Benefits)

(1) The following medical care benefits shall be provided for the disease, injury, childbirth, etc. of policyholders and their dependents:

1. Diagnosis and examination;

2. Provision of medicine and materials for medical treatment;

3. Treatment, operation and other treatment;

4. Prevention and rehabilitation;

5. Hospitalization;

6. Nursing;

7. Transfer.

(2) The standards for methods, procedures, scope, upper limit, etc. of health care benefit under the provisions of paragraph (1) (hereinafter referred to as "health care benefit") shall be prescribed by Ordinance of the Ministry of Health and Welfare.

(3) In determining the criteria for medical care benefits under paragraph (2), the Minister of Health and Welfare may exclude persons eligible for medical care benefits, such as diseases that have no difficulties in business or daily life, and other matters as prescribed by the Ordinance of the Ministry

Article 52 (Collection of Unjust Enrichment)

(1) The NHIS shall collect all or part of an amount equivalent to the relevant benefits or expenses for benefits from a person who has received insurance benefits or a medical care institution that has received insurance benefit costs by deceit or other fraudulent means.

(4) In the case of paragraph (1), if the medical care institution receives the medical care benefit costs by deceit or other improper means from the policyholder or dependent, the Corporation shall collect them from the medical care institution concerned and pay them without delay to the policyholder or dependent.

Article 85 (Penalty Surcharges, etc.)

(1) If a medical care institution falls under any of the following cases, the Minister of Health and Welfare may order the medical care institution to suspend its business for a fixed period not exceeding one year:

1. Enforcement Decree of the National Health Insurance Act (amended by Presidential Decree No. 18347 of March 29, 2004) that imposes medical care benefit costs on an insurer, policyholder, or dependent by deceit or other improper means;

Article 61 (Criteria for Administrative Disposition, including Penalty Surcharges)

(1) The criteria for the suspension of business of medical care institutions and for the imposition of penalty surcharge under Article 85 (1) and (2) of the Act shall be as shown in attached Table 5.

[Attachment 5] Criteria for the Suspension of Business and Imposition of Penalty Surcharges (Related to Article 61(1)

1. Criteria for business suspension;

(a) When a medical care institution causes the Corporation, insured, or dependent to bear medical care benefit costs by improper means, the period of suspension of business shall be as follows:

(unit: day)

1.The monthly average amount of money is to be paid to the Corporation by improper means during the investigation period.

A person shall be appointed.

Amount to be borne by the policyholder or dependent unfairly, and the shares to be borne by the policyholder or dependent.

The aggregate of the amounts shall be the amount obtained by dividing the number of months for the investigation period.

2. The unfair ratio (%) shall be calculated (total amount of medical care benefit costs / total amount of medical care benefit costs) ¡¿ 100.

3. The total amount of medical care benefit costs shall be the sum of the total medical care benefit costs under investigation period.

(1) The total costs of medical care benefits shall be the amount: Provided, That there is no request for review of medical care benefits costs;

If it is impossible to calculate, the total amount of unfair payment shall be deemed the total amount of medical care benefit costs.

4. Where the unfair ratio is at least five percent, the period of suspension of business shall be calculated by adding three days for each percent above, but such period shall be added.

It shall be deemed to be one percent of the decimal point in an unfair percentage. "Last"