[1] The requirements for the disposition of recovery or collection of the National Health Insurance Corporation under Article 52 (1) of the National Health Insurance Act, and the burden of proof on such requirements (=National Health Insurance Corporation)

[2] Whether the scope of exceptional provisions for medical and pharmaceutical products under the Pharmaceutical Affairs Act is extended according to “medical and medical care benefit act and its relative value points” (No. 2005-88 of the Ministry of Health and Welfare’s notification) (negative)

[3] The case holding that, even if a medical care institution for a disease-specific medical treatment provides patients with a prescription after treating them and allows patients to purchase medicines at a pharmacy, it cannot be deemed that the medical care benefit cost was paid by means of death or other unlawful means

[1] The disposition to recover or collect the National Health Insurance Corporation under Article 52 (1) of the National Health Insurance Act is not immediately possible for the medical care institution to receive excessive medical care benefit costs compared to the medical treatment actually provided to patients, but it can be done when such excessive medical care benefit costs are provided by the medical care institution's fraud or other improper methods. In such a case, the responsibility to prove that the medical care institution received the medical care benefit costs by deceit or other improper methods is the National Health Insurance Corporation.

[2] The purpose of Article 8(3) of the former Regulations on the Standards for Medical Care Benefits in the National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 377 of December 29, 2006) is to set the scope of application of a comprehensive water system and the criteria for calculating medical fees for the disease group, and as such, it is difficult to view that the scope of exceptions to medical services under the Pharmaceutical Affairs Act is extended by the above notification.

[3] The case holding that it cannot be deemed that the medical care benefit cost was paid for each disease group under Article 52 (1) of the National Health Insurance Act, on the ground that the medical care institution for the medical care of the disease group, issued a prescription without directly preparing and paying discharged medicines to the patients who have returned home, and received the medical care benefit cost including medicine costs in accordance with the comprehensive number system by disease group

[1] Article 52 (1) of the National Health Insurance Act / [2] Article 8 (3) of the former Rules on the Standards for Medical Care Benefits in National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 377 of Dec. 29, 2006), Article 21 (1) and (5) of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007) / [3] Article 52 (1) of the National Health Insurance Act

[1] Supreme Court Decision 2008Du6981, 6998 Decided September 11, 2008

Plaintiff

National Health Insurance Corporation (Attorney Kim Han-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2008Nu38027 decided May 13, 2009

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

A disposition taken to recover or collect the National Health Insurance Corporation under Article 52 (1) of the National Health Insurance Act shall not immediately provide excessive medical care benefit costs on the ground that the medical care institution received excessive medical care benefit costs compared to the medical care provided actually to patients, but may provide such excessive medical care benefit costs by deceit or other unlawful methods of the medical care institution. In such a case, the responsibility to prove that the medical care institution received the medical care benefit costs by deceit or other improper means is the National Health Insurance Corporation (see Supreme Court Decision 2008Du6981, 698, Sept. 11, 2008).

According to the reasoning of the judgment below and the records, the defendant asserted that the plaintiff established and operated the "Mariwon" and designated as a medical care institution for the medical care of the disease group at the request of the plaintiff, and that the defendant issued a prescription to the patient who returned to the hospital, and had the patient purchase the medicine at the pharmacy without giving the prescription to the patient who returned to the hospital, and received the medicine equivalent to the medical care expenses paid by the disease group in accordance with the disease group system by fraud or other improper means. The court below determined that the disposition of this case is invalid on the ground that the purport of the disposition of this case is "the recovery and disposition of the medical care expenses itself paid by the defendant from the medical care institution, such as the pharmacy, by making the patient purchase the medicine at the pharmacy by the plaintiff's prescription and let the patient purchase the medicine at the pharmacy and thus collecting it from the plaintiff's medical care institution, etc.", and there is no legal ground for this case.

According to Article 21 (1) of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007), a person who is not a pharmacist or herb pharmacist is not allowed to prepare medicines, and a doctor may prepare medicines directly only in cases prescribed by each subparagraph of Article 21 (5) of the former Pharmaceutical Affairs Act, such as where he/she prepares medicines to an in-patient.

Meanwhile, Article 8(3) of the Regulations on the Standards for Medical Care Benefits in the National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 377 of Dec. 29, 2006) provides that all acts, medication, and materials for medical treatment for each disease group may be integrated into one act and publicly notified by the Minister of Health and Welfare. According to Article 8(3) of the Regulations on the Standards for Medical Care Benefits in the National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 2005-88 of the Ministry of Health and Welfare; hereinafter “instant notice”), health insurance benefit and its relative value (amended by Ordinance of the Ministry of Health and Welfare No. 2005-88 of the Ministry of Health and Welfare; hereinafter “the instant notice”), the disease group’s relative value and its dependent (hereinafter “subscriber, etc.”) apply to cases where the patient or its dependent was hospitalized into the disease group, but it is difficult to view the point of relative value of the instant medical treatment as an act delegated by the Pharmaceutical Affairs Act on the day it was performed or transferred.

Therefore, in this case where there is no evidence to support the fact that the plaintiff's patients returning to Korea after performing surgery such as dypology, salpology, salpology, and salpology, etc., are inpatients patients or fall under the exception to the pharmaceutical sector provided for in each subparagraph of Article 21 (5) of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007), the plaintiff's failure to directly prepare and pay discharged drugs to the patients can be deemed to have complied with the law of the pharmaceutical sector. Furthermore, in light of the essence of the comprehensive water processing system, the plaintiff can separately claim medical care benefit costs excluding the discharged medicines. Thus, even if the plaintiff issued a prescription without directly preparing and paying medicines to the patients, it cannot be said that the plaintiff received medical care benefit costs that include the medicine expenses, regardless of whether it can be claimed for the amount equivalent to the discharged medicines by means of fraud or other unfair methods provided for in Article 52 (1) of the National Health Insurance Act.

Therefore, the defendant's recovery disposition and collection disposition of this case on the premise that the plaintiff received medical care benefit costs equivalent to medicine costs by deceit or other improper means are illegal. The above judgment of the court below is inappropriate in its reasoning, but it is legitimate in its conclusion that the recovery disposition and collection disposition of this case are invalid due to unlawful acts. Thus, the ground of appeal is groundless.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)