[업무정지처분취소][미간행]
[1] The legal nature of the criteria for the disposition of business suspension and the imposition of penalty surcharge under Article 61(1) [Attachment 5] of the Enforcement Decree of the National Health Insurance Act under Article 85(1) and (2) of the same Act, and the meaning of the period of business suspension or the amount of penalty surcharge (=the maximum limit)
[2] The standard for determining whether a punitive administrative disposition deviates from or abused the scope of discretion
[1] Article 85 of the National Health Insurance Act, Article 61 (1) [Attachment V] of the former Enforcement Decree of the National Health Insurance Act (amended by Presidential Decree No. 17476 of Dec. 31, 2001) / [2] Article 1 of the Administrative Litigation Act / [general] Articles 1 and 27 of the Administrative Litigation Act
[2] Supreme Court Decision 2001Du7138 Decided February 5, 2002 (Gong2002Sang, 684) Supreme Court Decision 2002Du219 Decided July 12, 2002 (Gong2002Ha, 1968) Supreme Court Decision 99Du1519 Decided September 24, 2002 (Gong2002Ha, 2570) Supreme Court Decision 201Du1083 Decided December 12, 2003
Plaintiff (Law Firm Boll, Attorney Park Jae-sung, Counsel for the plaintiff-appellant)
The Minister of Health and Welfare
Seoul High Court Decision 2004Nu18476 delivered on August 24, 2005
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
Article 61(1) [Attachment 5] of the Enforcement Decree of the National Health Insurance Act (amended by Presidential Decree No. 17476 of Dec. 31, 2001) under Article 85(1) and (2) of the same Act (amended by Presidential Decree No. 17476 of Dec. 31, 2001) provides a statutory order. However, even if a violation of the same type is committed in light of the content and purport of the delegation provision of the parent law, the principle of excessive prohibition under the Constitution and the principle of equality, etc., even if the violation of the same type is committed, the appropriate period of suspension of business and the amount of penalty shall be determined depending on the case, comprehensively taking into account the individual circumstances of other circumstances and actors punished by other Acts due to such violation, and the size of illegal gains generated from such violation
In addition, whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing the degree of infringement of public interest and the disadvantage suffered by an individual due to the disposition by objectively examining the content of the act of violation, the purpose of the public interest to be achieved by the act of disposition, the relevant circumstances, etc. (see Supreme Court Decision 2001Du11083, Dec. 12, 2003, etc.).
In light of the above legal principles, the court below's determination that the plaintiff operated the "non-permanent work" and the "non-permanent deliberation" mainly caused by the operation of the "non-permanent work" was 41,761,180 won or more than the reasonable claim amount under the non-permanent work of the court below, and that the non-permanent work of the court below did not unfairly require the plaintiff to observe the above non-permanent work of the Ministry of Health and Welfare for a period of six months from June 1, 2001 to November 30, 201. Thus, the court below's determination that the non-permanent work of the court below was 41,761,180 won more than the reasonable claim amount under the non-permanent work of the court below, or that the non-permanent work of the court below did not unfairly require the plaintiff to observe the above non-permanent work of the court below for a certain period of less than 6 hours after the non-permanent work of the court below, and that the non-permanent work of the court below can be deemed as unlawful.
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 Yang Sung-tae (Presiding Justice)