[2] The case holding that Article 201-77 and Article 2002-18 of the Ministry of Health and Welfare’s notice of the Health Insurance Medical Care Benefit Act and the unit price of its superior value-added allowance constitutes an administrative disposition subject to appeal litigation

[2] The case holding that Article 201-77 and Article 2002-18 of the Ministry of Health and Welfare's notice of the "unit price of health insurance medical care benefit act and its superior value-added allowance", which calculates the medical care benefit cost, are of a nature as an administrative disposition subject to appeal litigation, since it does not differ from that which direct change in the legal interest of the medical care benefit recipient, the medical care institution, etc., or direct change

2. All of the plaintiffs' primary and conjunctive claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

In the first place, in Article 201-77 of the Notification of the Ministry of Health and Welfare of December 31, 2001 publicly notified by the Defendant, “If the unit price for the point allowance is re-published within three months after the enforcement of the current notification, the unit price for the point allowance shall be the medical care benefit cost.” The notification is confirmed to be invalid, and Article 202-18 of the Ministry of Health and Welfare Notification of March 16, 2002, respectively. In the second place, the above notification shall be revoked.

[Reasons for Recognition: Facts without any dispute, Gap's 2-7 evidence, previous purport of pleading]

A. The president of the medical care benefit cost council and the National Health Insurance Corporation (hereinafter referred to as the “Corporation”) composed of the representatives of medical and pharmaceutical circles (hereinafter referred to as the “Corporation”) held a meeting to conclude the medical care benefit cost contract in 2002 under Article 42 of the National Health Insurance Act (hereinafter referred to as the “Act”) on December 18, 201, but failed to conclude the contract because it did not reach an agreement on the medical care benefit cost.

B. Accordingly, in accordance with Article 42(3) of the Act, the Defendant decided the medical care benefit cost through the deliberation of the Health Insurance Deliberation and Regulatory Committee (hereinafter “Deliberation and Regulatory Committee”), and organized the Regulatory and Regulatory Committee on December 19, 2001. On December 27, 2001, the Defendant determined the unit cost of health insurance medical care benefit and its large value-added allowance (hereinafter “point-value allowance unit cost”) as the unit cost of 5.4 won (the same as the unit cost of occupation in the preceding year), which is the government bill, and re-announces the unit cost of occupation allowance within 3 months, as the unit cost of health insurance benefit. The Defendant passed a draft on December 31, 2001, announced the above draft by the Ministry of Health and Welfare No. 201-777 (hereinafter “Public Notice No. 1”) and enforced from January 1, 2002.

C. On January 19, 2002, the Special Act on the Improvement of Financial Soundness of National Health Insurance (hereinafter referred to as the "Special Act") was promulgated and enforced from the date of its promulgation pursuant to Article 1 of the Addenda of the Special Act, the deliberation and resolution of medical care benefit costs under Article 42 (3) of the Act was transferred from the previous Deliberative and Regulatory Committee to the Health Insurance Policy Deliberative Committee (hereinafter referred to as the "Policy Deliberative Committee"), and the Policy Deliberative Committee was composed of eight representatives of medical and pharmaceutical circles, eight representatives of health insurance subscribers, eight representatives of health insurance subscribers, and eight representatives of public interest.

D. At the Policy Deliberative Committee held on February 15, 2002, there was an agreement on the draft medical calculation criteria, but it did not reach an agreement on the draft insurance premium adjustment, so re-determination was made through the sub-committee pursuant to Article 7(5) of the Special Act. On February 19, 2002, at the open sub-committee on February 19, 2002, the third proposal was submitted by the representative of the public interest, who is the representative of the insured with the unit price of the premium of KRW 5.5 won, and the third proposal of the representative of the medical sector with the unit price of the premium of KRW 6.57 won, but only the mutual position was confirmed and the Policy Deliberative Committee again deliberated on it by the policy Deliberative Committee.

E. Since then, the Policy Deliberative Committee had tried to hold several consultations on the veterinary adjustment proposal, but failed to conclude it, and the 5th Policy Deliberative Committee held on February 25, 2002 decided to present only the public interest representative's awareness and the identity of the subscriber's representative as the next opportunity, excluding the passive resolution proposal proposed by the medical circles representative in the absence of the medical circles.

F. The 7th Policy Deliberative Committee, which was held on February 27, 2002, was in progress in the presence of the representative of the Korean Medical Association. However, the 6.7% increase of the insurance premium presented by the representatives of the medical circles, 3.97% increase of the number of the insured, 6.7% increase of the insurance premium presented by the public representatives, and 2.9% increase of the number of the insurance premium proposed by the public representatives as the second proposal, was adopted.

G. On March 16, 2002, according to the results of the deliberation of the said 7th Policy Deliberative Committee, the Defendant announced the details of the medical care benefit cost of KRW 53.8 (hereinafter referred to as “instant notice”) by reducing the number by 2002-18 of the Ministry of Health and Welfare to 2.9%.

2. Relevant statutes;

Article 42 (Calculation, etc. of Medical Care Benefit Costs) (1) Expenses for medical care benefits shall be determined by a contract between the president of the National Health Insurance Corporation and the person representing the medical and pharmaceutical industry determined by the Presidential Decree.

(2) Where a contract has been concluded under paragraph (1), it shall be deemed to have been concluded between the Corporation and each individual medical care institution.

(3) The contract under paragraph (1) shall be concluded within three months before the expiration date of contract period, and if the contract is not concluded within such period, the amount determined by the Minister of Health and Welfare through the deliberation of the Deliberative and Regulatory Committee shall be the medical care benefit cost. In this case, the medical care benefit cost determined by the Minister of Health and Welfare shall be

(4) Where medical care benefit costs are determined under paragraph (1) or (3), the Minister of Health and Welfare shall publicly notify the details of the medical care benefit costs without delay.

Special Act on Financial Soundness of National Health Insurance

Article 7 (Meetings of Deliberation Committee) (3) Meetings of the Deliberation Committee shall be held with attendance of a majority of members present.

(4) The chairperson shall not participate in resolutions under paragraph (3): Provided, That when the numbers of votes of approval and disapproval are determined by the chairperson.

Article 10 (Claim for Medical Care Benefit Costs) (1) No medical care institution shall allow another person to file a request for examination (hereinafter referred to as the "request for examination") pursuant to Article 43 (2) of the National Health Insurance Act: Provided, That this shall not apply to medical care institutions determined and publicly announced by the Minister

(2) Where the medical care institutions referred to in the proviso of paragraph (1) intend to have their medical care institutions act on their behalf, they may have only the medical doctors' association, dentists' association, oriental medical society, midwife's association (including the reported branches and chapters) referred to in Article 26 of the Medical Service Act or the Pharmaceutical Association (including the reported branches and chapters) referred to in Article 11 of the Pharmaceutical Affairs Act act on their behalf.

3. Whether the lawsuit of this case is legitimate

A. Whether the notice of this case is subject to administrative litigation

(1) The defendant's assertion

The notice of this case does not have a specific nature of regulation for individual citizens, but has a general and abstract nature, so it does not constitute an administrative disposition which is subject to an appeal litigation, as it is apparent in the form or content of the provision.

(2) Determination:

(A) The legal nature of the instant notice

The legal nature of the notice does not uniformly determine, but it should be viewed differently at each specific case according to the contents contained in the notice. In other words, if the notice has a specific nature of regulation, it constitutes an administrative disposition, but if the notice has a general and abstract character, it constitutes an administrative order or administrative rule.

However, the instant notice constitutes a general standard to calculate the amount of medical care benefit when the Corporation or the person receiving the medical care benefit pays to the medical care institution, and thus, the specific rights and duties or legal relations between the Corporation, the medical care institution, and the insured are not formed just by the existence of the above general rule, but formed upon the occurrence of a series of factual acts or legal acts such as the patient’s internal medical care institution, the medical care institution’s implementation of medical care benefit and the Corporation, the claim for medical care benefit, the claim for co-payment against the person receiving the medical care benefit of the medical care institution, etc., and thus, the above notice has the nature as a statutory act.

If the notice of this case has the nature of legal order, in principle, it does not have the nature of administrative disposition subject to appeal litigation unless there is a direct change in the specific rights and duties or legal interests of a specific person without any separate enforcement act. In other words, since the statute generally infringes on the legal interest only by mediating a specific enforcement act, an individual whose legal interest has been infringed is requested to take the procedure of remedy first as the object of enforcement act. Therefore, if there is an enforcement act based on the statute, an individual first has committed the enforcement act, and then, may seek remedy by filing an administrative lawsuit against the enforcement act. However, if there is no enforcement act based on the statute, even if there is no enforcement act, it is merely a formal form, and there is no direct infringement on the legal interest or the enforcement of the law, it shall be deemed that an administrative litigation can be instituted directly against the law.

However, in this case, the term "execution act" does not mean an act of facts of an individual, such as the implementation of medical care benefits, within a medical care institution, and the implementation of medical care benefits of a medical care institution, but is an act of an administrative agency that applies the notification of this case, i.e., administrative act, which applies the notification of this case (if it is not interpreted, there is no way to dispute about an act of fact of an individual

(B) Part of co-payment

According to Article 41 of the Act, a person who receives medical care benefits shall bear part of the expenses, as prescribed by the Presidential Decree, and Article 22(1) of the Enforcement Decree of the Act provides that the person who receives the medical care benefits shall bear the burden of the expenses himself/herself, and Article 22(2) of the Act provides that the person who receives the medical care benefits shall pay the expenses to the medical care institution at the request of the medical care institution or his/her dependent.

According to the above statutory provisions, a person who received medical care benefits in a medical care institution must immediately pay the amount of co-payment among the medical care benefits determined by the instant notice, etc., so from the standpoint of a person who received the medical care benefits, it would immediately have a direct impact on the legal interest, such as the determination of the specific amount of co-payment, without any involvement of the administrative agency by the instant notice, and the medical care institution that received the co-payment from the said medical care institution, is also directly affected by the instant notice

In addition, in cases where a person who receives medical care benefits or a medical care institution that receives co-payment from such person is legally affected by the instant notification, there is no other remedy except directly disputing the instant notification due to the absence of a separate administrative agency’s enforcement.

Thus, the notice of this case has the nature of administrative disposition, and it should be viewed that the notice of this case can directly institute an administrative litigation against the notice of this case.

(C) The Corporation's claim portion

(1) Request procedures for medical care benefit costs.

When claiming medical care benefit costs, medical care institutions file a claim with a computer program called so-called "electronicized" distributed by the Corporation when claiming medical care benefit costs, which is already within the value of the notice of this case. Accordingly, if the medical care institution records only the prescription act and prescription medicine items in the above program, it automatically calculates the amount of medical care benefit cost claim according to the above program and automatically damages it on the computer screen and makes it available to the Corporation. In other words, the entry of the medical care institution at the time of claiming medical care benefit costs is merely merely a "brue, the type and quantity of prescription medicine," and the remainder is automatically processed by the computer program.

(2) Possibility of relief

For example, for the medical care institution to consider it appropriate, the medical care benefit cost calculated based on the unit cost of the point allowance in 2001 is claimed to the Corporation, and the Corporation's refusal to accept it seems to be able to dispute the appropriateness of the notice in this case while disputing the rejection disposition.

However, as seen above, medical care institutions are merely able to determine and enter only prescribed acts and prescription drugs in the process of claiming medical care benefit costs, and the remainder is automatically treated by computer programs, and thus, even if it is deemed that the unit price for the point is unreasonable, no other method exists to claim otherwise. If medical care institutions claim medical care benefit costs in any other way than by the aforementioned computer program, it is clear that it is a claim that does not conform to the method

Therefore, even if the notice of this case on the unit price of allowance is unfair, the medical care institution has no opportunity to dispute the notice of this case.

③ Also, in light of the concept, the administrative agency may think that the act of paying the medical care benefit cost by applying the instant notice to the medical care benefit cost claim by examining the medical care benefit cost claim. However, in reality, the examination of the medical care benefit claim is mostly conducted with respect to the prescription act and adequacy of prescription drugs by the medical care institution, and there is no relation with the application of the instant notice. Since the instant notice is a sole and obvious, the enforcement agency is bound to perform certain enforcement acts according to the instant notice without any possibility of examination and discretion, and the instant notice is applied automatically and automatically by being contained in the computer program. Therefore, it is difficult to say that there is no enforcement act of the instant notice.

In other words, since the notice of this case does not have room for examination and discretion by the executing agency in its application, it applies to the calculation of medical care benefit costs in mechanical form without any limit if there is an act of providing medical care benefits, and it affects the determination of medical care benefit costs. The increase or decrease in the medical care benefit costs brings about a change in the legal interest

④ As such, it is reasonable to view that an enforcement agency may perform a certain enforcement act without room for review and discretion, and, in the absence of possibility of remedy, the pertinent statutes can be deemed as the subject of appeal litigation by treating the same as the case where a specific person’s specific rights and duties or legal interests are directly changed.

(D) Conclusion

If so, the notice of this case on the unit price of an allowance in this case does not differ from that which directly changes the legal interest of the person who received the medical care benefits and the medical care institution, etc., or directly changes. Therefore, the notice of this case has the nature of administrative disposition which is the object of an appeal litigation.

B. Plaintiff 1's standing to sue

(1) The parties' assertion

The Defendant asserted that Plaintiff 1 did not have any legal interest due to the instant public notice, and that Plaintiff 1 did not have standing to sue to seek invalidation or revocation of the instant public notice. Accordingly, Plaintiff 1 asserted that Plaintiff 1 had no legal interest in claiming for invalidation or revocation of the instant public notice, and that, under Article 10(1) and (2) of the Special Act, medical care institutions publicly notified by the Defendant are authorized to act on behalf of the society, etc. pursuant to Article 43(2) of the Act. As such, Plaintiff 1 is a person who can make a request for review of medical care benefit costs on behalf of the medical care

(2) Determination:

On the other hand, the above plaintiff is not the subject of the payment of the medical care benefit cost, because it is not the subject of the payment of the medical care benefit cost, and therefore, it cannot be said that any legal interest has been infringed due to the notice in this case (In addition, there is no evidence to acknowledge the fact that the above plaintiff was requested by the medical care institution to act as an agent for the medical care benefit cost claim), therefore, the above plaintiff has no standing to sue to seek the invalidation or

4. Whether the notice of this case is lawful

A. The plaintiffs' assertion

(1) According to the latter part of Article 42(1) of the Act, the term of the contract shall be one year. The latter part of Article 42(1) of the Act shall be regarded as a mandatory provision inasmuch as the term of the contract at least one year is stipulated in policy consideration to guarantee the validity of the contract in a case where the contract for the costs of health care benefit was concluded, and the latter part of Article 42(1) of the Act shall be deemed as having the same nature as the costs of health care benefit as stipulated in the contract pursuant to Article 42(3) of the Act. In this case, the provision on the term of the contract after the latter part of Article 42(1) of the Act shall be applied even in such a case. The notice of this case

The notice No. 2 of this case was based on the proviso of the notice No. 1 of this case, and the notice No. 1 of this case is null and void, so the notice No. 2 of this case also becomes null and void.

(2) Even if the notice No. 1 of this case is valid, the notice No. 2 of this case is a significant and obvious procedural defect as follows in the deliberation process of the 7th Policy Deliberative Committee, which is premised on the premise, and thus void.

In other words, 23 members, including the chairperson, were present at the above Policy Deliberative Committee, but the representative non-party 1, the representative non-party 2, the representative non-party 3 of the Korean Medical Association, and the representative non-party 3 of the Korean Pharmaceutical Association did not vote on the agenda in which the objection to the vote was raised. The chairperson dealt with the non-party 1, non-party 2, and non-party 3 as being present at the meeting, and dealt with the non-party 1, non-party 2, and the non-party 3 as being present at the meeting, and the non-party 19 members agreed by

However, the above non-party 1, the non-party 2, and the non-party 3 members cannot be interpreted as not attending the meeting because they did not have a right to vote, and even if the non-party 1 member who left the voting place prior to voting by concession of a white number was not present at the meeting, it cannot be said that the non-party 2 and the non-party 3 members who were at the voting place at the time of voting were absent

Therefore, even if the members present at the meeting of the 7th Policy Deliberative Committee are excluded from the non-voting chairperson, 22 persons (21 persons even if they are excluded from the non-voting chairperson). Thus, in order to legally resolve the agenda at the Policy Deliberative Committee, at least 12 persons (11 persons even if the members present at the meeting are 21) who are the majority of the committee should be approved, and the resolution that the 10 members present at the meeting passed is significant and obvious.

(3) Accordingly, primarily, seek revocation of the instant notice’s confirmation and its revocation as preliminary.

(b) Markets:

The primary claim and the conjunctive claim shall also be considered together.

(1) Whether Article 42(1) of the Act was violated

In full view of the purport of the oral argument in evidence Nos. 4-2, 9, and 10, the Corporation requested the Seoul National University Management Research Institute to conduct cost analysis based on the data on the balance of office members. As a result, the amount exceeding 16% to 30% of the average amount of 1.6% of the remaining medical treatment departments other than foreign departments has occurred, and the monthly provisional disposition income of the opening company is estimated to be approximately 7.7% to 9% of the income per worker in our country, and 7.7 times of the national income per capita, which is higher than that of the United States. According to the results of the above study conducted by the Deliberative and Regulatory Committee on Dec. 27, 2001, the Corporation has to sufficiently review the previous opinion within 20 months, which should be considered to be 3 months of the total amount of 1,000 won and to be 5.0% of the total amount of 1,000 won, and thus, it has to be considered to be 3 months of the above opinion.

According to the above facts, when determining a reasonable unit price for point allowance in 2002 through sufficient review of the above research findings and hearing opinions of interested parties, the above research results were examined for the three-month period with the consent of the members of the Deliberative and Regulatory Committee representing interested parties, and then the unit price for point allowance in 2002 shall be continuously maintained in 2001. Thus, the substance of the notice No. 1 of this case shall be deferred for three-month period by the defendant's decision on the medical care benefit cost to be determined under Article 42 (3) of the Act. Further, as shown in the circumstances where the notice No. 1 of this case was made, it cannot be said that the delay of the decision on the medical care benefit cost in order to have three-month period for determining the unit price for point allowance with the consent of interested parties violates good customs and other social order. Thus, it cannot be said that the notice No. 1 of this case violates the latter part of Article 42 (1) of the Act.

Therefore, the first argument of the plaintiffs is without merit.

(2) Whether procedural defects exist (whether Nonparty 1, Nonparty 2, and Nonparty 3 participated in the vote)

Comprehensively taking account of the reasons stated in Eul and Eul evidence Nos. 5 and 6, the witness's testimony held on February 27, 2002 with a view to setting the number of insurance policies in 202, the Policy Deliberative Committee was held on February 27, 2002, and the remaining 25 members of the Policy Deliberative Committee (including 23 members of the Policy Deliberative Committee), including two members of the Korean Medical Association, proposed that the number of medical and pharmaceutical circles should be put to the vote together, but it was decided that the voting should be put to the extent of the representative's inside the voting and the public interest representatives, and the voting should be put to the remaining 9 members of the Policy Deliberative Committee, but the remaining 3 members of the Policy Deliberative Committee did not appear to be the 9 members of the Policy Deliberative Committee before the voting was held, and the remaining 2 members of the Policy Deliberative Committee did not appear to be the 3 members of the Policy Deliberative Committee, and the 3 members of the Policy Deliberative Committee did not appear to be the 3 members of the Policy Deliberative Committee.

As above, the members who voluntarily left the meeting of the Policy Deliberative Committee before voting was held, and who clearly expressed their intention not to participate in voting (the right to vote is different from the right to vote to waive the voting on the proposal) are difficult to be considered as the members present at the meeting, and the second argument of the plaintiffs is without merit.

5. Conclusion

Therefore, the lawsuit of the plaintiff's Medical Association is unlawful, and it is dismissed. The remaining plaintiffs' primary and preliminary claims are dismissed as it is without merit.

Judges Cho Jong-jin (Presiding Judge) Kim Yong-sung