A. (1) The National Health Insurance Act was enacted for the purpose of contributing to the improvement of national health and the promotion of social security by providing citizens with insurance benefits for the prevention, diagnosis, and rehabilitation of diseases and injury, for childbirth and death, and for the improvement of health (Article 1). The National Health Insurance Act provides health care benefits for diseases, etc. of the insured and their dependents, including “medical examination, examination, medicine (pharmaceuticals), provision of materials for medical treatment, treatment, surgery, and other treatment, etc.” (Article 41(1)), and the National Health Insurance Corporation shall pay the costs of health care benefits provided by health care institutions, including “medical institutions established under the Medical Service Act” (Articles 42(1) and 47(1)).

In addition, the Medical Service Act was enacted for the purpose of protecting and improving health of the people by providing for matters necessary for national medical fees so that all the people can benefit from high-quality medical treatment (Article 1); and, in addition, Article 33(2)1 provides that only a doctor, dentist, oriental medical doctor, or midwife (hereinafter “medical person”); medical personnel shall not establish and operate at least two medical institutions (the main sentence of Article 33(8); hereinafter “the prohibition of double establishment”); medical personnel shall not establish or operate a medical institution under the name of another medical personnel (Article 4(2); hereinafter “the prohibition of double establishment”); and in combination with the main sentence of Article 33(8), the medical personnel shall not establish or operate a medical institution (hereinafter “the prohibition of double establishment”).

Meanwhile, Article 33(2) of the Medical Service Act provides a penal provision (Article 90) for a person employed by not only a person who has established a medical institution but also a person who is not eligible to establish a medical institution, as well as a person who has been employed by a “person who is not eligible to establish a medical institution.” On the other hand, in the case of violation of Article 33(8), there is a penal provision for a medical person who established and operated two or more medical institutions, but there is no penal provision for a person employed by the medical person, and there is no penal provision for a person who performed a medical act. In the case of violation of Article 4(2), there is no penal provision for a medical person who established and operated

(2) As can be seen, the National Health Insurance Act and the Medical Service Act are the same purpose in that they are the Act for the Protection and Promotion of Public Health and Health, but the National Health Insurance Act provides for the provision of medical care benefits suitable for the treatment of diseases, whereas the Medical Service Act provides for medical personnel, medical institutions, and medical care to ensure that all citizens enjoy high-quality medical care, and it is difficult to view that the legislative purpose and the subject of regulation is the same. Therefore, the scope of “medical institutions established under the Medical Service Act,” which are recognized as medical care institutions under the National Health Insurance Act, ought to be determined by taking into account the difference between the National Health Insurance Act and the Medical Service Act, as an institution that provides

In addition, each of the instant provisions of the Medical Service Act limits the establishment and operation of at least two medical institutions, and the establishment or operation of a medical institution under the name of another medical person. However, there is no intrinsic difference in that such medical institution was established by a medical person permitted to establish a medical institution. Moreover, it is difficult to readily conclude that there is a qualitative difference in the medical care benefits for treating diseases compared with those for which a person who established a normal medical institution falls short of, or exceeds, the standards for medical care benefits prescribed in the National Health Insurance Act, barring any other circumstances such as falling short of, the standards for medical care benefits prescribed in the National Health Insurance Act. The Medical Service Act, in violation of each of the instant provisions of the Medical Service Act, did not stipulate any penal provision against

In full view of such circumstances, if a person qualified and licensed as a medical person opens a medical institution pursuant to the Medical Service Act and provides health insurance policyholders or their dependents with health care benefit prescribed in the National Health Insurance Act, even if a medical person who has already established and operated another medical institution actually established and operated the medical institution, or a medical person who established and operated the medical institution under the name of another medical person violates the Medical Service Act, such circumstance alone should not be viewed as refusing the payment of health care benefit on the ground that the medical institution does not constitute “medical institution established under the Medical Service Act,” which is a health care institution that can provide health care benefit under the National Health Insurance Act, or refusing the payment of health care benefit benefit on the ground that the medical institution’s receipt of health care benefit falls under “the act of receiving the health care benefit by fraud or other improper means.”

B. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court reveals the following facts.

(1) The Plaintiff’s Intervenor 1 and the Nonparty obtained permission to establish the “○○ Hospital” (hereinafter “instant hospital”) from the mayor of Ansan around 2008.

(2) On August 24, 2012, the title holder of the instant hospital was changed to the name of the Plaintiff following two changes. However, even after the change in the name of the Plaintiff, the Intervenor 1 operated the instant hospital, and the Plaintiff was merely the intention employed by the Intervenor 1 (On the other hand, the Intervenor 1 opened the hospital called “○○ Hospital” in Gangdong-gu, Seoul on August 31, 2012).

(3) On April 1, 2014, the Defendant rendered a decision to recover the “medical care benefit benefit paid to the instant hospital” from August 24, 2012 to December 10, 2013 on the ground that “the Plaintiff’s Intervenor 1 established the instant hospital in the name of the Plaintiff and established two or more medical institutions, thereby violating Articles 33(8) and 4(2) of the Medical Service Act” (hereinafter “instant disposition”).

(4) Meanwhile, the Plaintiff’s Intervenor 1 employed the Plaintiff and established the instant hospital, etc. in the name of the Plaintiff, etc., and was convicted of having committed a crime of violation of the Medical Service Act, such as that the Plaintiff directly operated the hospital.

C. Examining these facts in light of the legal principles as seen earlier, if the Plaintiff, who is qualified and licensed as a medical personnel, obtained permission to establish the instant hospital in its name under the Medical Service Act, and received medical care benefits from the Defendant after providing health insurance policyholders or patients who are their dependents with medical care benefits for the treatment of diseases, etc. at the instant hospital, the instant hospital cannot recover the amount equivalent to the medical care benefits on the ground that the Plaintiff’s medical institution operated overlappingly by the Plaintiff’s Intervenor 1, or the Plaintiff’s establishment and operation was lent to

D. The lower court determined that the instant hospital constitutes a medical care institution under the National Health Insurance Act, and that the medical care benefit cost received by the Plaintiff is not the subject of restitution of unjust enrichment. In so doing, the lower court did not err by misapprehending the legal doctrine on the “medical institution established under the Medical Service Act” under Article 42(1)1 of the National Health Insurance Act and the restitution of unjust enrichment under Article 5

2. Determination as to whether the application by the Intervenor 2 and the Intervenor 3 for intervention by the Plaintiff is lawful

In order to intervene in a specific litigation case in order to assist one of the parties, there must be an interest in the outcome of the pertinent litigation, and the term “interest” refers to legal interest, not in fact, economic or emotional interests, but in legal interests (see, e.g., Supreme Court Decision 2007Da16885, Jun. 28, 2007). The interest asserted by the Plaintiff Intervenor 2 and the Plaintiff Intervenor 3 cannot be deemed as a legal interest in the outcome of the instant lawsuit. Thus, the said application for intervention is unlawful because it does not meet the requirements for participation.

3. Conclusion

Therefore, the appeal shall be dismissed, and the application for intervention by the Intervenor 2 and the Intervenor 3 shall be dismissed, and the costs of the appeal shall be borne by the Defendant, including the part arising from the intervention by the Intervenor 1, and the costs of the intervention by the Intervenor 2 and the Intervenor 3 shall be borne by the Intervenor 2 and the Intervenor 3. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)