2014Nu67934 Revocation of the revocation of the license suspension

A person shall be appointed.

Attorney OOO-O

Law Firm ○○, Attorneys ○○○, and ○○○, Counsel for the defendant-appellant)

The Minister of Health and Welfare

Litigation performer ○○○

Seoul Administrative Court Decision 2014Guhap54332 decided October 30, 2014

September 2, 2015

October 7, 2015

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's suspension of qualification for two months against the plaintiff on February 27, 2014

The disposition shall be revoked.

1. Quotation of the first instance judgment

The reasoning for this Court regarding the Plaintiff’s assertion is as follows, except for adding the judgment as stipulated in Article 8(2) below to the Plaintiff’s assertion, the reasoning for the judgment of the first instance is as follows. Therefore, this Court cites it as it is in accordance with Article 8(2) of the Administrative Litigation

2. The further determination of this Court

A. As to the existence of the reasons for the disposition, (1) a summary of the Plaintiff’s assertion

In relation to the duties prohibited under Article 32(1)5 of the former Enforcement Decree of the Medical Service Act, there is an act of receiving money and valuables in addition to the provision of drugs, in order to fall under “an act of receiving money and valuables unfairly.” However, the Plaintiff was provided with drugs at an amount of approximately 31% lower than the upper limit of the drug cost publicly notified by the Defendant from 00 pharmaceutical drugs, and there is no fact of receiving money and valuables separately. Moreover, the Plaintiff did not receive any solicitation regarding the adoption or prescription of drugs from the 00 pharmaceutical drugs, and was unaware of the fact that the price of drugs was discounted, and thus, there is no relevance between the Plaintiff’s duties and the discount of the drug price.

Therefore, there is no ground for the instant disposition. (2) The instant disposition is determined.

In full view of the following circumstances known by the facts and evidence admitted earlier, the instant disposition is deemed to have the grounds for such disposition, and the written evidence No. 15-18 alone is insufficient to reverse the said judgment. The Plaintiff’s allegation in this part is not acceptable.

(A) The fact that the Plaintiff’s act of receiving money or goods does not separately provide money or goods to the Plaintiff while selling the drugs to the instant member, but at a discount on the sales price of the drugs itself, is recognized. However, Article 32(1)5 of the former Enforcement Decree of the Medical Service Act is understood as a provision prepared to ensure the non-purchase of medical practice by allowing medical personnel to maintain high integrity in relation to their duties in consideration of high level of public nature. Considering the legislative purpose and purport of Article 32(1)5 of the former Enforcement Decree of the Medical Service Act, it is reasonable to view this provision as prohibited not only the act of receiving money or goods directly by medical personnel but also the act of acquiring various types of economic benefits that can be assessed as identically legally. However, in the process of receiving drugs from the restriction of 00, the Plaintiff provided economic benefits to the Plaintiff who is exempted from the obligation to pay a discounted amount of money or goods at a discounted price, which is once this constitutes “the Plaintiff’s act of receiving money or goods” under Article 32(1)5(5)1)5 of the former Enforcement Decree of the Medical Service Act.

(B) There is no evidence to deem that the Plaintiff received explicit solicitation on the adoption or prescription of the pharmaceutical products sold by O restrictions from the side of 00 pharmaceutical drugs, or adopted and prescribed the pharmaceutical products sold by 00 pharmaceutical products on the basis of price discount. However, in light of the legislative purpose and purport of Article 32(1)5 of the former Enforcement Decree of the Medical Service Act, when the medical personnel received money in relation to one’s own duties such as the adoption or prescription of the pharmaceutical products, it does not necessarily mean that the medical personnel would satisfy the requirements prescribed in the above provision, and furthermore, it is not necessary to have a quid pro quo relationship between the individual act of duties and the receipt of money.

On the other hand, Kim0 is merely a nursing team of the instant member and cannot be adopted or prescribed without the involvement of the Plaintiff, who is a medical practitioner. Moreover, considering the trading period and size of the instant member and the Plaintiff’s career at a discount, the Plaintiff issued a tax invoice at a price discount and delivered it to the instant member, and the economic benefits accrued from the price discount belonged to the Plaintiff operating the instant member. Considering such circumstances, it is difficult to believe that the Plaintiff was unaware of the fact that the Plaintiff sold the instant member with a price discount. Furthermore, the maximum 00 employee of the instant 00 pharmaceutical gives a discount to the instant member to induce the adoption or prescription of the drugs sold by the instant member in the course of investigation. Furthermore, considering the fact that the instant member and the instant 00 pharmaceutical drug at a price discount, the Plaintiff also was sufficiently aware of the reasons and motive that the Plaintiff sold the instant pharmaceutical product at a price discount of 00 pharmaceutical products at a price for the instant member’s work in addition to the circumstances cited by the first instance court in relation to the duty.

B. As to the size of the economic profit (1) summary of the Plaintiff’s assertion

The details and methods of claiming medical expenses for patients are entirely different depending on whether the National Health Insurance Act applies to the case involving sexual surgery, such as the instant member, and the amount claimed as medical care benefit costs to the National Health Insurance Corporation among the instant medicines supplied by the Plaintiff from 00 pharmaceutical drugs is 316,155 won.

Therefore, the plaintiff's economic profit is about 98,00 won ( = 316,155 won x 0.31). (2)

In rendering the instant disposition, the Defendant merely took the grounds for disposition that the Plaintiff received money or goods from the National Health Insurance Corporation in relation to his/her duties at a discount from 00 pharmaceutical drugs, and did not take the grounds for disposition that the Plaintiff received medical care benefits from the National Health Insurance Corporation by fraud or other improper means. In addition, Article 66(1)1 of the former Medical Service Act and Article 32(1)5 of the former Enforcement Decree of the Medical Service Act comprehensively prohibit medical personnel from receiving money or goods in relation to their duties, and do not vary depending on whether medical personnel’s duties are medical care benefits for national health insurance.

However, as seen earlier, the Plaintiff was supplied with drugs equivalent to KRW 12,315,300 over ten times from January 4, 201 to March 18, 2011, and the Plaintiff received a discount of KRW 3,879,140, the amount of money and valuables received by the Plaintiff is KRW 3,879,140. Therefore, the Plaintiff’s assertion on this part is without merit.

C. As to the deviation and abuse of discretionary power, the summary of the Plaintiff’s assertion (1)

The instant disposition is not only an excessively harsh sanction against the Plaintiff, but also an administrative disposition standard prescribed by the former Rules on Administrative Dispositions related to medical care, so it constitutes a case where discretion is exceeded and abused.

(2) Determination

Whether a punitive administrative disposition deviates from or abused the scope of discretionary power under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the act of violation as the ground for the disposition, the public interest purpose to be achieved by the relevant act of act, and various circumstances. In such cases, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed within the administrative agency’s internal business rules, and thus externally binding upon citizens or courts. Thus, the legality of the pertinent disposition shall be determined not only by the above criteria for disposition but also by the provisions and purport of the relevant Acts and subordinate statutes. Therefore, the pertinent disposition cannot be deemed legitimate merely because it conforms to the criteria for disposition. However, unless there are reasonable grounds to believe that the above criteria do not conform with the Constitution or laws, or that the result of the application of the said criteria is significantly unreasonable in light of the content of the act of violation and the purport of the relevant Acts and subordinate statutes, it shall not be readily determined that the disposition in accordance with such criteria has exceeded or abused discretionary power (see, etc.

However, Article 4 of the former Rules on Administrative Dispositions related to Medical Services, which is the defendant's business practice rules

[Attachment Table 2.A-A’s disposition is conducted in accordance with the disposition standards set forth in Article 2.35 of the same Table, and there is no circumstance to deem that the above disposition standards do not conform with the Constitution or laws by itself. Moreover, the Plaintiff’s assertion on this part is not acceptable, in addition, when the amount of money and valuables received by the Plaintiff in relation to his/her duties reaches KRW 3,879,140, and the issue is less complicated. In addition, considering the level of morality borne by the Plaintiff as a medical person, occupational duties, and the need for public interest to eliminate the practice of offering money and valuables to the pharmaceutical company, the Plaintiff’s assertion and evidence presented by the Plaintiff alone cannot be deemed to have exceeded the scope of discretion given to the Defendant or have abused discretionary power. Accordingly, the Plaintiff’s assertion on this part

3. Conclusion

The plaintiff's claim shall be dismissed on the ground that it is without merit. The judgment of the court of first instance is justifiable with this conclusion. Therefore, the plaintiff's appeal is dismissed on the ground that it is without merit.

Judges Kim Jong-tae

Judges Dok-ho

Judges Yoon Jong-dae