Law Firm Han-gu, Attorneys Kang Dong-dong, and Yil-chul, Counsel for defendant-appellant

Attorney Park Jae-ho, Counsel for the defendant-appellant

1. As to the existence of the reasons for the disposition

A. The judgment of the court below

The lower court determined that the grounds for the instant restitution disposition were not recognized on the following grounds.

(1) At the time of the instant on-site investigation, the Defendant: (a) requested a written confirmation to the effect that “only one of the two caregivers, including the beneficiary D, participates in the body cleaning machine of the beneficiary; and (b) the beneficiary E, etc., did not actually take a visit bath; and (c) even if the beneficiary E, the Defendant requested that the beneficiary take a total of KRW 351,523,110 of the cost of long-term care benefit to the beneficiary (hereinafter “the instant written confirmation”); (d) however, it is difficult to deem that the Plaintiff signed the instant written confirmation with the intent to fully recognize the details stated therein.

(2) It is difficult to recognize the credibility of the response written by the joint investigation team against the beneficiary or his/her guardian, as it appears that the response written by the joint investigation team against the beneficiary or his/her guardian was induced by the investigator. Moreover, the fact that the beneficiary or his/her guardian prepared is also difficult to believe

(3) The joint investigation team is likely to require a caregiver to prepare a confirmation document stating the same content, based on the beneficiary’s response from the questions leading to a specific answer, or to enter it in the confirmation document, and the caregiver seems to have prepared a confirmation document to the effect that, upon such a request, an abstract and general gender does not directly tension other recipients.

(4) There is insufficient evidence to acknowledge that the instant medical care institution did not offer visit bathing to all of the recipients listed in the list of recipients of false claims on February 2014.

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) In the course of an on-site investigation, an administrative agency received a written confirmation from the other party to the investigation to a specific violation, and the written confirmation is not written against the will of the originator, and it is not difficult to take the written confirmation as evidentiary materials of the specific fact due to lack of its content, etc., the value of the written confirmation cannot be readily denied (see Supreme Court Decision 2015Du2864, Jul. 11, 2017).

According to these legal principles, examining the following circumstances revealed by the facts and records admitted by the court below, it is difficult to see that the instant confirmation document was drafted forcibly or falsely, and it is difficult to consider the content itself as evidentiary materials for specific facts.

① On April 11, 2014, the Plaintiff signed the instant certificate and issued it to the Defendant on April 11, 2014, which was the last day of the instant field investigation.

② A public official Q belonging to the South Maritime Affairs and Fisheries Office, who was present at the time of demanding a written confirmation from the Plaintiff, was present as a witness at the court below to the effect that the Plaintiff refused to sign and affix a seal at that time, but he stated to the effect that it was not a coercive atmosphere.

③ When the Plaintiff transferred the list of false claims, and thereafter the Plaintiff raised an objection that several recipients had actually taken a visit bath, it is recognized that the employee belonging to the Defendant excluded the Plaintiff from the list by reflecting this on the list.

④ The Defendant, only when the Plaintiff’s employees, beneficiaries, and guardians’ written answers and written confirmations are provided, was included in the investigation results and finally confirmed by the Plaintiff himself/herself. ⑤ It seems that the Plaintiff, who operates a long-term care institution, could have sufficiently predicted the fact that the Plaintiff could receive a disposition for restitution of unjust enrichment if any violation was discovered through the instant on-site investigation.

(6) Furthermore, from the time of the instant on-site investigation to the original trial, the Plaintiff’s primary argument was that “the overall process of visiting bathing is conducted by two male and female caregivers, and only the body cleaning process is conducted by only one caregiver with the same gender, the overall visit bathing should be recognized as having been provided by two caregivers,” or that even in such a case, it is harsh to recover and dispose of them at a rate in violation of the notification provision.”

(2) There are questions, answers, and confirmations, in support of the confirmation document of this case signed by the Plaintiff. In lieu, the content of this case’s medical care institution includes a clear statement that “The physical cleaning process was provided only by a caregiver with the same gender, although two care workers visit and take care of the remaining and female caregivers in the case of the instant medical care institution.”

On the other hand, the content of the confirmation document drawn up eight months after the instant on-site investigation is prepared to the effect that, instead, two caregivers have taken a bath in the bathing vehicle. However, it is difficult to conclude that the content of the confirmation document is about the body cleaning process provided between July 201 and February 2014, on the grounds that no mentions about the timing and circumstances of providing the body cleaning machine to the relevant beneficiary.

Furthermore, a public official under the jurisdiction of the defendant seems to be ordinarily necessary to verify whether two caregivers provided the body process to the beneficiary or guardian, and it is difficult to view the content thereof as an inquiry that leads the beneficiary or guardian to feel a sense of sexual humiliation or to make an inaccurate response.

(3) The purport of the confirmation document of this case exists, and the purport of the confirmation document is that only one caregiver, who supports the confirmation document of this case, is natural, providing a body cleaning agent. It is difficult to find out data to deem that the confirmation document prepared by the caregiver, was prepared by meeting or pressure of the investigative team. Even if it is found that the caregiver prepared a confirmation document in the situation of psychological decline, it cannot be readily concluded that the document was drafted by coercion immediately, and it cannot be denied the credibility of the content merely because the document was prepared in the state of psychological decline (see Supreme Court Decision 94Nu3421 delivered on September 23, 1994).

(4) In the course of the instant on-site investigation, N submitted a confirmation letter to the effect that no visiting bathing was provided after January 2014, and the Defendant, after February 2014, determined that N did not recognize the grounds for disposition against the Plaintiff as a whole. The lower court determined that N did not recognize the grounds for a disposition against the Plaintiff, inasmuch as N’s confirmation of fact was drafted by force pressure against his own will, it is reasonable to conclude that N’s claim for expenses for visiting bathing care after February 2014 ought to be made by fraudulent claim. In fact, if other women’s caregiver performed visiting bathing in the course of inputting the claim for expenses for visiting bathing, such special circumstance should be proved by the assertion, but the Plaintiff did not assert or prove any assertion. Notwithstanding the above circumstances, the lower court erred by misapprehending the logical rule and the empirical rule, thereby adversely affecting the bounds of the principle of free evaluation of evidence.

2. As to the meaning of the notice clause which provides the physical cleaning process to two or more caregivers

A. A. A subordinate statute shall be construed to conform to the superior statute by comprehensively examining the content, legislative purport, and history of the relevant statute, except where the said provision clearly conflicts with the superior statute and becomes null and void (see, e.g., Supreme Court Decision 2016Du33186, Jun. 10, 2016). Such interpretation principle may also be applied to the supplementary administrative rules of the statute.

B. Article 23(1)1 of the Act on Long-Term Care Insurance for Long-Term Care (the Act on Long-Term Care Insurance for Long-Term Care) provides for the term “long-term Care Benefits” as one of the types of long-term care benefits, and provides for the term “long-term care benefits for long-term care workers to visit their home, etc. using bathing equipment (Article 23(1)1(b) of the Act on Long-Term Care Insurance for Long-Term Care (the term “long-term Care Insurance for Long-Term Care Workers”) and Article 39 of the Act on Long-Term Care Insurance for Long-Term Care (the term “long-Term Care Insurance for Long-Term Care Insurance for Long-Term Care).” According to the delegation, the Minister of Health and Welfare shall determine and publicly notify the types of benefits and the specific method of calculation and items, etc. (Article 32 of the Enforcement Rule of the Act on Long-Term Care Insurance for Long-Term Care Insurance for the purpose of calculating the number of visits.”

Accordingly, Chapter II 5 of the former Public Notice on Expenses for Long-Term Care Benefits (wholly amended by the Ministry of Health and Welfare No. 2014-97, Jun. 26, 2014) provides that "the process of the body cleaning agent must be provided by at least two caregivers for the safety of beneficiaries" (hereinafter referred to as the "public notice provision of this case") shall be included in preparation for bathing, preparation for bathing, movement of bathing, movement of bathing, body cleaning agent, hair, clothes, and surrounding arrangement after bathing.

On the other hand, the National Health Insurance Corporation shall collect an amount equivalent to the cost of home care benefits if the person who received the cost of home care benefits by fraud or other improper means collects the cost of home care benefits (Articles 43(1)3 and 37(1)4 and (3)3 of the Act on Long-Term Care Insurance for the Aged).

C. According to the aforementioned legal doctrine, if the meaning of the provision of the instant notification provision is interpreted organically and systematically based on the content, structure, and purport of the relevant statutes, it is reasonable to view that the process of the body cleaning is to be provided by more than two caregivers in consideration of the safety of the recipients in visiting bathing. However, in cases where a reasonable opposing opinion is explicitly indicated by the recipient and special circumstances are recognized to ensure the safety of the recipient, it is reasonable to view that the provision may be provided by one caregivers exceptionally. The reasons are as follows.

(1) The purpose of the long-term care insurance system is to improve the quality of life of older persons, etc. who are unable to carry out daily life alone (Article 1 of the Long-Term Care Insurance for Older Persons Act). Therefore, long-term care benefits should be provided appropriately within the necessary scope in comprehensive consideration of the mental and physical conditions and living conditions of older persons, etc., as well as the desire and choice of older persons, etc. and their families (Article 3(1) of the Long-Term Care Insurance Act). Furthermore, beneficiaries may have differences in their mental and physical conditions, degree of health, disability, etc.

② In ordinary cases, it is necessary to thoroughly prepare for the conditions or accidents that may occur in the body of a beneficiary who is unable to carry out daily life on his/her own due to the characteristics of elderly or elderly diseases. From this perspective, for the safety of the beneficiary, it is recognized that there is a sufficient rationality to ensure that the process of physical cleaning is provided by more than one caregiver in principle.

(3) On the contrary, it is difficult to deem that there is a reasonable reason to compel a manager to proceed only by two or more caregivers, on the ground that the recipient refuses to participate in a different caregiver on the ground of a sense of shame, or demands the participation of only a caregiver with a high friendship, such as relatives, etc., to participate in the body cleaning process. Even if one caregiver provides the body cleaning process, it is difficult to deem that there is a reasonable reason to force a manager to proceed only by two or more caregivers, unless there is any particular problem to the safety of the recipient.

④ Therefore, in principle, considering safety issues, the purport of the provision compelling the process of physical cleaning by two or more caregivers is sufficiently reasonable. However, if the beneficiary explicitly refuses the body of two or more caregivers due to a sense of shame, it is an exceptional circumstance, and thus, it is sufficient to completely deny the above provision as being unconstitutional or the above law, not to completely deny its validity, but to resolve the problem by interpreting it in conformity with the Constitution and superior statutes.

D. Accordingly, the court below should have determined the legitimacy of the instant disposition against the Plaintiff by examining whether there are special circumstances, such as whether one caregiver provided the process of physical cleaning to the beneficiary as a reasonable objection explicitly expressed by the beneficiary, including D, and whether the Plaintiff’s claim for medical care benefit costs by unlawful means under Article 43(1)3 of the Act on Long-Term Care Insurance for the Aged and Long-Term Care.

Nevertheless, the lower court did not interpret the meaning of the instant notice provision in conformity with the superior laws and regulations, without immediately concluding that the instant disposition was unlawful, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee

Justices Min Min-young

The chief Justice Justice shall mobilized