Notification of the Ministry of Health and Welfare

[24-1(B) KCCR 754, 2010Hun‐Ma716, June 27, 2012]

The Constitutional Court, in this case, held that the relevant provision of the 'Detailed Guideline for Application Standard and Method for Medical Care Benefits' of the Notification No. 2010‐20 of the Ministry of Health and Welfare, which makes only A‐type hemophiliacs who were born after January 1, 1983, eligible for medical care benefits regarding gene recombination products, infringes on the rights to equality of the complainants, A‐type hemophiliacs whowere born before January 1, 1983 and, thus, is against the Constitution.

Background of the Case

(1)The Ministry of Health and Welfare, which is delegated pursuant to Article 39 Section 2 of the National Health Insurance Act and Article 5 Section 2 of the 'Regulations for Standard of Medical Care Benefit of National Health Insurance,' made the 'Detailed Guideline for Application Standard and Method for Medical Care Benefits' (hereinafter, the "Detailed Guidelines") with Notification and has been providing medical care benefits regarding A‐type hemophilia medicines. However, in terms of recombination of gene products such as 'Recombinant' and 'Advate' among those medicines, the patients eligible for such benefits are limited to those patients who: i) receive that medication for the first time; ii) are HIV‐positive whose immune function is slowed and thus at high risk of infection; or iii) were born after January 1, 1983.

(2)As a result, the complainants, A‐type hemophiliacs who were born before January 1, 1983, have not been eligible for medical care benefits regarding recombination of gene products and thus, they have been eligible for medical care benefits only regarding blood products.

(3)In response, the complainants filed this constitutional complaint with the Constitutional Court on November 24, 2010, arguing that the Detailed Guideline infringes on their rights to equality because such Guideline makes medical care benefits regarding recombination of gene products be provided only to the A‐type hemophiliacs who were born after January 1, 1983.

Provision at Issue

The question presented to us is whether the part of "born after January 1st of 1983" of Article II Section 2 Item 339 (hereinafter, the 'Instant Notification Provision') of the Detailed Guideline (Notification No. 2010‐20 of the Ministry of Health and Welfare, January 29, 2010), as one of criteria for patients' eligibility for other blood and body fluid injection products of Recombinant blood coagulation factorVIII(products name: 'Recombinant' and 'Advate'), infringes on the complainants basic rights and thus violates the Constitution and the contents of the Instant Notification Provision are as following:

'Detailed Guideline for Application Standard and Method for Medical Care Benefits'(Notification No. 2010‐20 of the Ministry of Health and Welfare, January 29, 2010)

II. Medicines

2. Detailed standard and method for eligibility based on medicine

[339] Other blood and body fluid injection products

Summary of the Decision

1. Court Opinion

While, in the past, A‐type hemophiliac patients were not eligible to medical care benefits in terms of recombination of gene products, those patients, who either receive a medication for the first time or are HIV‐positive whose immune function is slowed and thus at high risk of infection, became eligible through the Instant Notification Provision. And, later, the Instant Notification Provision also made ‘the patients born after January 1, 1983' eligible to those benefits in terms of recombination of gene products. This amounts to be a gradational improvement of system and, thus, setting the limit on the patients to be eligible to those benefits itself does not infringe on the right to equality of the patients not eligible to. However, even in the instances of that limit, the standard for that limit shall have such reasonable grounds that it does not damage on the right to equality of the patients not eligible to. In the instant case, however, one of the criteria of restriction on the patients to be eligible to the benefit, the birth dates of patients, is not reasonable because those birth dates differs only relying on an incidental circumstances of the dates when their parents got married, their mother got pregnant or gave births and, thus, we cannot consider that the necessity of medical care benefits for A‐type hemophiliac patients in terms of recombination of

gene products varies from those incidental circumstances.

Thus, we found that it is not a different treatment based on reasonable grounds that the A‐type hemophiliac patients are differently treated depending on their birth dates with respect to their eligibility to medical care benefits in terms of recombination of gene products. Therefore, the Instant Notification Provision infringes on the complainants' right to equality.

2. Dissenting Opinion of Justice Lee Dong‐Heub

In the event that a certain system or standard based on statutes such as fixed benefit fee per day in terms of medical care benefits under the National Health Insurance Act infringes on citizens basic rights and thus, statute of limitation for the claim against such infringement starts to run, the afterward partial changes in that system or standard shall not suspend that statute of limitation nor a new statute of limitation shall start to run so far as those changes does not amount to the causes of new infringement on the basic right. Accordingly, in the instant case where the complainants are A‐type hemophiliacs, the cause of their basic right infringement occurs on July 1, 2007 when the 'Detailed Guideline for Application Standard and Method for Medical Care Benefits' is amended by the Notification No. 2007‐54 of the Ministry of Health and Welfare so that the patients eligible for medical care benefits regarding gene recombination products are limited to those patients who were born after January 1, 1983. Later then, gene recombination products subject to medical care benefits are extended on April 29, 2009 by the Notification No. 2009‐79 of the Ministry of Health and Welfare but the complainants do not contend that the latter change infringed on their basic right. Given the facts described above, in my view, the statute of limitation which started to run from July 1, 2007 shall not be suspended by the execution of such Notification No. 2009‐79 in order to make new statute of

limitation run. Therefore, the complainants' claim for constitutional review in the instant case filed on the date when the statute of limitation, one year after the date when its cause arises, has already lapsed.