2. The costs of appeal shall be borne by the Defendant.

2. Purport of appeal: Revocation of the judgment of the first instance. The plaintiff's claim is dismissed.

The reasoning of this court's ruling is as follows, except for adding arguments and judgments in the defendant's trial, and is the same as the reasoning of the judgment of the court of first instance. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

▣ 제1심 판결문 27쪽 12째줄 다음에 아래 부분을 추가한다.

“(6) Defendant’s assertion and judgment thereon.”

(A) The Defendant asserts that even if the medical care benefit standard and its procedure are violated, if the medical care benefit standard and its procedure are allowed to be collected in full from a patient, the examination function of the Medical Care Assistance Act in relation to whether the medical care is properly performed is essentially impaired, and the entitlement to medical care as a social security system is infringed upon by the beneficiary of the medical care due to the patient’s burden of expenses for medical treatment, medicine, and materials subject to medical care, and the use of medicines and materials for medical treatment not permitted under the medical care benefit standard to a patient for clinical trials on new medicine, etc. Therefore, even in such a case, the Defendant asserted that the medical care provider constitutes “cases where the patient received the expenses for medical care by fraud or other improper means” under Article 29(1) of the Medical Care Assistance Act, but on the following grounds, the medical personnel selected medical care, medicine, and materials for medical care as deemed appropriate based on the patient’s condition, etc. at the time of the medical care, medicine, and materials for medical care, and thus, the patient’s burden should be borne by the medical care benefit costs and expenses.

① As the medical care benefits standard provides for the medical care benefits and non-benefit items, the upper limit of expenses and remuneration that the medical institution can receive as well as non-medical care benefits is individually listed in both the medical care benefits standard and non-medical care benefits, and medical care, medicine, and materials for medical treatment are not included in the medical care benefits standard, but also include medical care, medicine, and materials for medical treatment that do not fall under non-medical care benefits. As a result of the development of medical care technology, such matters are increased. In order to treat a disease, the medical care benefits cannot be claimed if the aforementioned voluntary benefit needs to be provided. Therefore, the medical care benefits cannot be claimed. In particular, it is inevitable for the medical care system to be implemented with the consent of the wounded person, and its cost and remuneration can not be directly claimed to the wounded person. In particular, as in the case of the mathy of this case, the early death rate is high, but the medical treatment rate is high as active treatment rate

② Article 11-4 of the Medical Care Assistance Act prohibits an eligible recipient from claiming expenses under any other name, such as deposit for hospitalization, in addition to expenses to be borne by him/her under this Act. However, the purport of this provision is to restrict the scope of claiming medical benefits and personal contributions within the framework of the medical care system. Therefore, if it is interpreted that the purport of prohibiting an additional payment from the recipient of medical care benefits exceeding the medical care standard, or from receiving the additional payment from the recipient of medical care benefits with the consent of the recipient, it cannot be deemed to infringe on the patient’s medical right and right to self-determination

③ In such cases, even if the grant of voluntary benefit does not necessarily lead to medical personnel to whether it is medical feasibility, it cannot be examined in the investigation and decision-making procedure for imposing the penalty surcharge by the Minister of Health and Welfare and for the disposition of restitution of unjust enrichment by the head of a Si/Gun/Gu, and it may be determined after considering the efficacy, effect, etc. of medical technology and medicine at that time.

(4) If a patient seeks sufficient explanation from a medical person about the details of voluntary non-performance benefits and consented to such implementation, the patient’s right to receive medical care is more than the right to receive medical care benefits where the patient receives medical care in accordance with the criteria for medical care and pays only the expenses therefor, so that the patient can provide the patient with all medical knowledge and medical technology for the treatment, etc. of a disease beyond the medical care benefits, and the patient himself/herself has selected the right to receive such treatment.

⑤ According to Article 5(1) [Attachment 1] 3 of the former Regulations on the Standards for Medical Care Benefits in National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 328 of Oct. 11, 2005), and Article 5(1) [Attachment 1] 3 of the former Regulations on the Standards for Medical Care Benefits in National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 328 of Oct. 11, 2005), where a public notice by the Minister of Health and Welfare, a public notice by the Health and Welfare, and a deliberation by the Health and Welfare Committee on severe diseases, etc. are given to patients with serious illnesses, it is possible to prescribe and administer drugs beyond the scope of the matters permitted or reported (e.g., efficacy, effect, usage, volume, etc.) under the Pharmaceutical Affairs Act. Thus, since the National Health Insurance Act recognizes prescription and administration beyond the scope of the license or reporting of drugs, such

(B) In addition, the Defendant asserts that since the advance application system for aviation cancer was enforced from January 9, 2006, the Plaintiff used the aforementioned system as medical care benefits or non-medical care benefits and did not follow such procedure, it should be deemed that the Plaintiff received insurance benefit costs by deceit or other improper means.

Since January 9, 2006, the pre-application system for aviation cancer was enforced. As seen earlier, medical care institutions can file effective pre-application only when the details of the medical care benefit standards are publicly notified. However, since the details of the medical care benefit standards have not been publicly notified at the same time as the establishment of the system, so it became possible to substantially use the above system for blood diseases, such as booms only during 2007. In the case of diseases requiring treatment over the village, such as booms, through the pre-application system, expecting the method of administration of aviation cancer after being recognized as medical care benefits or non-benefit benefits through the aforementioned pre-application system would only be considered in light of the patient’s medical care benefits and self-determination right, professional performance right, and professional performance right. However, even if medicines are prescribed and administered beyond the allowable scope ex post, the medical care institution’s imposition of penalty surcharges or investigation and decision procedure for restitution of unjust enrichment by the head of the Si/Gun/Gu, and it is medically reasonable to consider that the aforementioned pre-application system constitutes an unfair treatment provision.

2. Conclusion

The plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Sung Pung-tae (Presiding Judge)