[1] Acts and subordinate statutes which serve as the basis for determining whether the cost that a medical care institution received in return for medical treatment constitutes excessive personal charges under Article 43-2 of the former National Health Insurance Act

[2] Whether the Health Insurance Review and Assessment Service’s excessive personal charges to be verified and notified pursuant to Article 43-2(1) and (2) of the former National Health Insurance Act include “expenses received by mutual agreement with the health care institution to conduct medical treatment at will and be treated as health care expenses with the insured, etc.” (affirmative in principle)

[3] In a case where a medical care institution conducts arbitrarily non-benefit medical treatment and does not constitute excessive personal charges, the medical care institution bears the burden of proving the expenses (=medical care institution)

[1] Article 43-2 (see current Article 48) of the former National Health Insurance Act (amended by Act No. 9386, Jan. 30, 2009) / [2] Article 43-2 (1) (see current Article 48 (1)) and (2) (see current Article 48 (2)) of the former National Health Insurance Act (amended by Act No. 9386, Jan. 30, 2009) / [3] Article 43-2 (1) (see current Article 48 (1)) and (2) (see current Article 48 (2)) of the former National Health Insurance Act (amended by Act No. 9386, Jan. 30, 2009)

[2] [3] Supreme Court Decision 2011Du3524 decided August 17, 2012 (Gong2012Ha, 1554)

See Attached List of Plaintiffs (Attorney Park Jong-soo et al., Counsel for the plaintiff-appellant)

Health Review Service

Seoul High Court Decision 2010Nu30361 decided April 26, 2011

The part of the judgment of the court below concerning the confirmation and notification of excessive charges is reversed, and that part of the case is remanded to the Seoul High Court. All remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the application of new medical technology

The court below rejected the first Plaintiffs’ assertion on a different premise, on the ground that the first instance court did not constitute a new medical technology under Articles 13(1) and 10(1) of the former Rules on the Standards for Medical Care Benefits under the National Health Insurance (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 129, Jul. 31, 2009; hereinafter “Rules on Medical Care Benefits Standards”) and that the first instance court did not constitute a new medical technology under Articles 13(1) and 10(1).

In light of relevant statutes and records, such determination by the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation or scope of “new medical technology” under Articles 13(1) and 10(1) of the Regulations on Standards for Medical Care Benefits.

2. As to the misapprehension of legal principles as to the application of amended Acts and subordinate statutes on medical care benefit standards

In light of the principle of the rule of law and the provisions of Article 13 of the Constitution, in the absence of special measures, such as establishing transitional regulations to apply the same in favor of the persons to whom the new law was amended, matters that occurred before the amendment shall be applied not by the new law after the amendment, but by the previous law before the amendment: Provided, That even if the new law was retroactively applied, where there is no direct relation to the interests of the general public, and where there are special circumstances, such as promoting the interests of the general public and removing disadvantages or pains, the retroactive application of the law shall be exceptionally allowed (see Supreme Court Decisions 2001Du3228, Dec. 10, 2002; 2004Da8630, May 13, 2005, etc.).

Therefore, whether a medical care institution’s expenses are excessive personal charges under Article 43-2 of the former National Health Insurance Act (amended by Act No. 9932, Jan. 18, 2010; hereinafter the same) shall also be determined in accordance with the relevant medical care benefit standards, etc., which were enforced when the medical care institution provides and receives the expenses. Barring any special circumstance, the Acts and subordinate statutes, such as the medical care benefits standards, which were amended after the medical care institution’s amendment, cannot be retroactively applied, barring any special circumstance. Furthermore, given that the interests arising from the amendment of the Acts and subordinate statutes, such as the medical care benefit standards, are inconsistent with those between the operator of the medical care institution and the national health insurance policyholder or his/her dependent (hereinafter “subscriber, etc.”). Thus, the foregoing amendment cannot be deemed as retroactively applied to the medical care benefit standards,

In the same purport, the court below was just to have determined that the provision of the Health Insurance Benefit and its relative value (amended by the Ministry of Health and Welfare No. 2000-67 of Dec. 8, 2000) should be applied to the instant in-depth inspection conducted prior to the enforcement of the detailed provisions on the criteria and method for the application of the Medical Care Benefit Act as notified by the Ministry of Health and Welfare No. 2009-45 of Mar. 10, 2009, not to be retroactively applied to the above notice, and there was no error of law by misapprehending the legal principles on the application of the amended Acts and subordinate statutes on the medical

3. As to the misapprehension of legal principles as to medical optional benefit

A. (1) According to Articles 41 and 43-2 of the former National Health Insurance Act, the insured, etc. of the National Health Insurance may request the Defendant to verify whether the insured, etc. of the National Health Insurance is exempt from the medical care benefits under Article 39(3) as prescribed by the Presidential Decree among the medical care benefits costs. Upon receipt of such request, the Defendant shall notify the relevant medical care institution of the purport that the verified costs constitute excessive principal charges, and the notified medical care institution shall, without delay, pay the excessive principal charges to the applicant for the verification.

Based on the purport of the national health insurance system, the system under the National Health Insurance Decree, such as the subject of and criteria for medical care benefits, the standards and procedures for payment of expenses, and the legal principle on non-benefit eligibility, etc., is examined. In principle, unless the so-called legal non-benefit treatment that is excluded from the subject of medical care benefits under Article 39(3) of the former National Health Insurance Act is not the legal non-benefit treatment, a health care institution shall provide health care benefits to policyholders, etc. in accordance with the standards and procedures prescribed by the Act and subordinate statutes on the criteria for recognition of medical care benefits. The scope of excessive charges that the Defendant shall confirm and notify pursuant to Article 43-2(1) and (2) of the former National Health Insurance Act includes not only “the expenses that the health care institution provided the insured, etc. with the health care benefit to the subscribers, etc. in accordance with the criteria and procedure prescribed by the Presidential Decree, but also the expenses that the insured, etc. should bear by itself by mutual agreement between the subscribers, etc.” (see, e.g., Supreme Court Decision 2012Du517Du.).

(2) However, on the other hand, given that a medical person, etc. is not obligated to perform the best medical treatment pursuant to a medical contract concluded with a subscriber, etc., as well as has the duty to endeavor to provide a patient with the best medical service pursuant to the Medical Service Act, and has the right to receive effective and appropriate medical treatment without any excessive burden of expenses for illness, injury, etc., patients such as the subscriber, etc. are also entitled to receive the medical care without any excessive burden of expenses, even in cases where the medical care institution arbitrarily provides non-benefit medical treatment outside the National Health Insurance framework and received the expenses from the subscriber, etc., (i) under the relevant Acts and subordinate statutes implemented at the time of the medical treatment, such as inclusion into the medical care benefit subject or non-benefit within the National Health Insurance framework or the procedure for reasonable adjustment of the relevant medical care benefit amount is not provided, or even if such procedure is provided, it is difficult to view that the medical care institution avoided it in light of specific circumstances such as the content and urgency of the procedure and the process, etc.

B. The court below rejected the plaintiffs' assertion that the plaintiffs' act of receiving the medical care costs is legitimate in light of the following reasons: the medical care institution conducts medical treatment and collects the expenses from the subscribers, etc., must follow the standards and procedures stipulated in the relevant Acts and subordinate statutes, and the insurer is not able to claim expenses from the patient because the medical care institution goes beyond the medical care benefits standards, and it does not change from the fact that the medical care institution was medically adequate acts; and the medical care institution was medically inevitable; and the competent administrative agency has selected the medical care benefits subject to the medical care benefits for a long time before the competent administrative agency has long recognized the necessity of the establishment

C. However, the above assertion by the Plaintiffs is that even if the instant visa inspection constituted the voluntary benefit treatment under the statutes at the time of its implementation, the cost does not constitute an excessive personal charge. Therefore, the lower court should have deliberated and determined whether the costs of the instant visa inspection cannot be deemed the excessive personal charge on the sole basis of the foregoing reasoning, rather than the rejection of the Plaintiffs’ assertion on the ground of the foregoing reasoning. In so doing, the lower court should have deliberated and determined further on whether there are circumstances in which

Therefore, the above judgment of the court below is erroneous in the misapprehension of legal principles on the objects of the confirmation and notification of excessive personal charges under Article 43-2 (1) and (2) of the former National Health Insurance Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

4. As to the misapprehension of legal principles as to infringement of constitutional rights

In light of the relevant legal principles and records, the court below is just in rejecting the plaintiffs' assertion on this part of the disposition of this case, on the grounds as stated in its holding, because it cannot be deemed that the disposition of this case infringed the plaintiffs' freedom to perform their duties, or infringe the plaintiffs' property rights, and even if the right to self-determination is partially restricted, it is difficult to conclude this part as illegal. In so doing, the court below did not err by misapprehending the legal principles as to the plaintiffs' freedom to perform their duties, property rights,

5. As to the misapprehension of legal principles as to health examinations at his own request

The lower court rejected the Plaintiffs’ assertion that, unlike health examinations, the act of diagnosis and treatment, including various tests corresponding to health care benefit, is conducted only when it is deemed necessary for medical treatment, and that it is conducted for limited medical treatment to monitor the state of pregnancy and fetus by measuring the heart breath of the fetus, such as this case’s non-suic examination is conducted for limited purposes of monitoring the state of pregnancy and fetus. It is difficult to view the instant non-suic examination as a health examination conducted for the purpose of checking the state of general health and preventing and early detection of diseases, and construing the non-suic examination as a general health examination as a legal non-suic examination in violation of the purport of the relevant public notice.

In light of relevant Acts and subordinate statutes and the records, the above judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to medical examinations at their wishes, as otherwise alleged in the grounds of appeal.

6. As to the order for refund of excessive charges

The plaintiffs also state this part of the petition of appeal as the subject of appeal, but the petition of appeal or the appellate brief does not state the legitimate grounds for appeal.

7. Conclusion

Therefore, the part of the judgment of the court below regarding the disposition of confirming and notifying excessive principal charges shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and all remaining appeals shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment] List of Plaintiffs: omitted

Justices Kim Yong-deok (Presiding Justice)