[2] In a case where a large amount of insurance money that can be actually paid is acquired by deception, whether fraud is established or not (affirmative), and the scope of establishment thereof (=total amount of insurance money paid)

[3] The case holding that an act of claiming excessive medical care benefit costs by inducing long-term hospitalization beyond the scope even if actual hospitalized treatment is required constitutes a crime of fraud as to the total amount of medical care benefit costs, since it cannot be accepted as a means of exercising social norms

[2] In the case of the exercise of rights by means of deception, if the act belonging to the exercise of rights and the deception belonging to such means are comprehensively observed to the extent that such deception cannot be acceptable as a means of the exercise of rights under social norms, the act of exercising rights constitutes fraud. However, even if there are grounds for payment of insurance proceeds, if excessive insurance proceeds are paid through long-term hospitalization, etc. with the intention to acquire a large amount of insurance proceeds exceeding the insurance proceeds actually receivable by means of deception, fraud is established against the whole insurance proceeds received.

[3] The case holding that the act of demanding excessive medical care benefit costs to the National Health Insurance Corporation by inducing long-term hospitalization by inducing patients who have less need to be hospitalized without properly performing medical treatment in accordance with the patient's health conditions by inducing them to be hospitalized, and by demanding them to discharge, etc., cannot be accepted as a means of exercising social norms, and thus, even if the actual hospitalization for a certain period of time is required, a crime of fraud is established against the total amount of medical care benefit costs for the pertinent

1. As to the facts constituting fraud against the National Health Insurance Corporation

A. As to the assertion regarding the violation of the rules of evidence regarding hospital treatment

In a case where continuous observation by a medical personnel is required with respect to side effects or incidental effects of a patient's disease which are very low resistance ability or that of a medicine administered, in a case where the continuous control is required for medication and food and plant, it is necessary to continuously administer medication and medicine so that the patient's pains are more inconvenience in treating the patient, or where the patient's condition is in a situation where the patient's condition is unable to cope with the patient's disease or where the patient's risk of infection exists, etc., and where the patient is staying in the hospital, it means receiving treatment under the observation and management of the medical personnel while the patient stays in the hospital for more than six hours pursuant to all the provisions such as "detailed matters on the criteria and method for the application of medical care benefits" as publicly notified by the Ministry of Health and Welfare (see Supreme Court Decisions 2004Do657, Jan. 12, 206; 2004Do6557, Jun. 29, 2017).

Examining the reasoning of the judgment below in light of the above legal principles, the court below is just to have determined that the patient of this case was hospitalized for a long time beyond the scope of the medical care benefit fee even though the patient of this case needs to be hospitalized or needs to be hospitalized for a short period of three to seven days, and that the defendant obtained it by claiming excessive amount of medical care benefit fee to the National Health Insurance Corporation, by comprehensively taking account of the following facts: the details of the patient's insurance coverage; the patient's symptoms, diagnosis and treatment contents; the patient's behavior such as symptoms, meals, outing outing, and gambling; the patient's condition of the patient's management, etc. according to the patient's hospitalization period; and accordingly, the court below did not err by violating the rules of evidence as to admissibility or probative value; and contrary to the allegations in the grounds of appeal, there is no error of law such as violation of the rules of evidence examination,

B. As to the assertion of misapprehension of the legal principles as to fraud fraud fraud fraud fraud fraud fraud fraud fraud

In the case of exercise of rights by means of deception, if such deception is to the extent that it is impossible to be acceptable as a means of exercise of rights by means of deception, the act belonging to the exercise of rights and the act of exercise of rights constitutes fraud (see, e.g., Supreme Court Decision 2002Do6410, Jun. 13, 2003). In addition, even if there are grounds for payment of insurance proceeds, if excessive insurance proceeds are paid by means of long-term hospitalization with intent to acquire a large amount of insurance proceeds exceeding the insurance proceeds that can be actually paid by means of deception, fraud is established against the total insurance proceeds received (see, e.g., Supreme Court Decision 2007Do2134, May 11, 2007).

In light of the above legal principles, the defendant's act of claiming excessive expenses for medical care benefits to the National Health Insurance Corporation by inducing long-term hospitalization by inducing patients who have less need to be hospitalized without proper medical treatment according to the patient's health condition and by inducing them to receive discharge, etc. Thus, even if it is necessary to actually hospitalized treatment for a certain period, it shall be deemed that a crime of fraud is established against the whole amount of the medical care benefits expenses for the pertinent period of hospitalization including such part. In this regard, the court below is just in taking measures not separately calculated and deducted the medical care benefits expenses and the medical care benefits expenses for the case where the necessity of hospitalization is recognized from the amount obtained by the National Health Insurance Corporation after the fact that the result of the examination by the National Health Insurance Corporation is not recovered from the amount obtained by deceit of the defendant for the National Health Insurance Corporation.

2. As to the crime of aiding and abetting fraud

A. As to whether the facts charged are specified

The phrase “date” of a crime under Article 254(4) of the Criminal Procedure Act, which prescribes the specific method of the facts charged, requires a statement to the extent that it does not conflict with the principle of double prosecution or prescription, and “place” requires a statement to the extent that it represents the territorial jurisdiction, and “the method” requires three specific elements of the facts charged. The purport of the law requiring three specific elements of the facts charged is to limit the scope of the defendant’s defense to facilitate the defense right by limiting the scope of the defendant’s defense, and therefore, the facts charged should be stated to the extent that it is possible to distinguish the specific facts that meet the above three specific elements of the crime (see, e.g., Supreme Court Decision 2005Do2003, Jul. 29, 2005).

In light of the facts charged as to the defendant's fraudulent aiding and abetting the 16 patients of this case on the ground that the non-indicted 1 is the representative and the defendant's aiding and abetting and aiding and abetting the 16 patients of this case, stating that "the defendant does not actually have the patients undergo hospital treatment," ② in order to assist the patient in claiming hospitalization benefits, etc. for the insurance company due to the reason that the patient was hospitalized, ③ prepare and deliver a written confirmation of hospitalization as to whether the patient was properly hospitalized, ④ the patient was informed of the receipt of insurance money from the insurance company based on the written confirmation of hospitalization, ④ the date and time of claiming insurance money for each period of hospitalization of the patients, the insurance company, the type of the insurance products subscribed, the type of the insurance products subscribed, the existence and degree of the necessity of hospitalization, etc., are specified as the attached list of crimes. The argument in the grounds for appeal that this part of the facts charged did not constitute an obstacle to the defendant's exercise of his right to defense is not acceptable.

B. As to the assertion regarding the violation of the rules of evidence regarding the subjective elements of aiding and abetting crime

After finding the facts as stated in its reasoning, the court below acknowledged that ○○ Hospital: (a) once the defendant knew of symptoms of the patient who had been at the hospital and recommended the hospitalization of the patient in the process of pre-entry into the hospital; and (b) requested the original director and staff to obtain approval from the hospital by giving written diagnosis and receipt; (c) the defendant decided whether to discharge the patient; (d) the patient has the authority to make diagnosis and written confirmation of hospitalization; (e) the defendant prepared a medical certificate or written confirmation of hospitalization for a disease at which the patient can claim insurance money at the request of the patient; (e) the defendant recommended the hospitalization of the patient whose symptoms are not serious; (g) the patient was to be discharged after hospitalization; (g) the defendant recommended the hospitalization to be re-hospitalize; (g) the long-term hospitalization had no interests with the patient who did not incur a heavy burden on the hospital expenses; and (g) the defendant appears to have lawfully been aware of the fact that there were no reasonable reasons for the defendant's request for examination to increase the number of inpatients; or (g) the defendant's request to provide examination to the patient at the time of illness.

On the other hand, the judgment of the court below is added to the fact that the defendant was aware of the fact that the above patient was being covered by multiple insurances, and at least it was somewhat inappropriate for the defendant to have sufficiently predicted such circumstances. This is not an expression of intent to commit fraud, but it is understood as an expression of willful negligence in the context before and after, therefore, it is not acceptable to the allegation in the grounds of appeal that there was an error of misunderstanding of legal principles in this part.

3. On the charge of fraud against non-life insurance companies

The court below acknowledged the fact that the defendant ordered the above hospital's office members and employees to claim the amount of automobile insurance per day with 100,000 won or more, and found that the additional rate of radiation photographing reading fees was additionally collected or falsely claimed. Accordingly, it is sufficiently acceptable in light of the evidence duly examined at the court below, and there is no error of law that found the facts without using evidence as alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)