Plaintiff (Law Firm Closts, Attorneys Hong Sung-l et al., Counsel for the plaintiff-appellant)

National Health Insurance Corporation and one other

December 12, 2019

Seoul Administrative Court Decision 2018Guhap83215, 2018 Guhap89817 (Consolidated) Decided July 4, 2019

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

The judgment of the first instance court is revoked. Defendant National Health Insurance Corporation’s disposition to recover medical care benefit costs rendered against the Plaintiff on December 16, 2016, and the Minister of Health and Welfare’s disposition to suspend the operation of the medical care institution as of March 28, 2018 and the disposition to suspend operation of the medical care institution as of May 8, 2018 are revoked.

1. Details of the disposition;

The reasoning for this part of this Court is that the relevant part of the reasoning of the judgment of the court of first instance is the same as that of the relevant part, except as follows. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ 11 and 12 pages 2 deleted the part “The period subject to investigation shall be from December 2, 2012 to February 2, 2013, and from September 2015 to November 2015”.

○ 2 15 lines “For the Plaintiff” added the phrase “with respect to the Computerization of the Computerization Team, the examination fee, and the fee for the shooting photography, etc., consisting from December 23, 2010 to November 30, 2012.”

○ 3 The parts (amounting to KRW 377,719,750) in the following 1 and 2 pages “(amounting to KRW 377,719,750)” are raised as “(amounting to KRW 377,719,750 from December 2, 2012 to November 2015).

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The reasoning for this part of this Court is that the relevant part of the reasoning of the judgment of the court of first instance is the same as that of the relevant part of the reasoning, except for those written or added as follows. Thus, this part of the reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of

○ 5. The following shall be added to the next 12 lines:

“C) Each of the instant dispositions was based on the fact that each of the instant dispositions provides that a medical specialist in the non-exclusive image department shall work at least once a week in accordance with the operating guidelines of the Rules on the Installation and Operation of Special Medical Equipment (hereinafter “Operational Guidelines”). However, since the Operational Guidelines do not have any external binding force, each of the instant dispositions was made without the basis of statutes and was unlawful.

○ 5 14-16 The part that “the Plaintiff shall not be externally binding.”

○ 5. The following shall be added to the 18 line below:

3) The assertion on the instant restitution disposition

The restitution disposition of this case is unlawful in violation of Article 23(1) of the Administrative Procedures Act, since the specific grounds and reasons for the disposition are not specified.

B. Relevant statutes and facts of recognition

The reasoning for this part of the judgment of the court of first instance is the same as that of the relevant part of the reasoning of the judgment of the court of first instance. Thus, this part of the reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article

C. Whether the grounds for the instant restitution disposition are presented

1) When an administrative agency issues a disposition, it shall, in principle, present the basis and reasons for the disposition to the party concerned (Article 23(1) of the Administrative Procedures Act). In such cases, an administrative agency shall specifically specify the facts causing the disposition and the relevant statutes or municipal ordinances and rules, which serve as the basis for the disposition (Article 14-2 of the Enforcement Decree of the Administrative Procedures Act): Provided, That in light of the basis and purpose of the disposition that excludes the arbitrary decision of the administrative agency, and allows the party concerned to properly cope with the administrative remedy procedure, and the purpose of the system to suggest reasons to the extent that the party concerned can be aware of the grounds, the disposition cannot be deemed unlawful, unless the grounds and reasons for the disposition are specified specifically. In such a case, the term “case where a reason is presented” means a case where it is sufficiently known that the party concerned at the time of the disposition is made on any ground and its overall process until the disposition is made, and thus, it is deemed that there was no particular hindrance to the administrative remedy procedure (see Supreme Court Decision 2016Du64975, January 31, 2019).

(ii) the facts of recognition

A) Around August 2015, employees of the Defendant Corporation visited the instant member to conduct on-site verification, and confirmed the fact that Nonparty 1, who was reported to the instant member as a medical specialist in the non-exclusive film department, was the founder of the ○○○○○ Radiological Team located in the luminous-si, and did not entirely visit the instant member.

At the time, Nonparty 2, who was the chief of the Council of this case, stated in the questionnaire of questioning by Defendant Corporation (No visit / another day / No visit) and written “a remotely accuracy management or quality control report” in the questionnaire of questioning by Defendant Corporation (No. 2).

B) Upon Defendant Corporation’s request, a public official affiliated with the Ministry of Health and Welfare conducted a field investigation on February 18, 2016 to the instant member of the Council. On February 18, 2016, the Plaintiff submitted a written confirmation (a evidence No. 1-2, a evidence No. 4-1, a evidence No. 4-2, and a evidence No. 4-2) that “The Plaintiff submitted to the Defendant Minister a non-exclusive agreement with the instant member, and sent images using a remote transmission program on a real-time basis using a tele-transmission program, and there was no door-to-door printing.”

다) 당시 소외 2는 “CT 정도관리점검표, 임상영상평가표, 팬텀영상 또는 임상영상을 원격프로그램에 올려놓고, 점검표는 영상의학과 비전속의들 근무처에서 직접 작성하여 본원에 송부함”이라는 내용의 사실확인서(을나 제5호증)를 작성하여 피고 장관에게 제출하였다.

D) Based on the above confirmation statement, the field investigation team of the Ministry of Health and Welfare analyzed data such as computerized database, medical records, the documents related to the computer-based photographing device of this case, employment contract, medical image reading contract, etc. based on each of the above verification documents, and confirmed the period for which a medical specialist of non-exclusive image department did not work in the actual medical care institution and did so remotely. Accordingly, on February 22, 2016, the Plaintiff submitted a confirmation document (BB No. 6) stating the following matters from the Plaintiff.

Article 38(1) of the Medical Service Act, Article 3(1) [Attachment 1] of the Regulations on the Establishment and Operation of Special Medical Equipment / In accordance with the criteria for recognition of installation of special medical equipment, personnel operating computer-to-scriptive devices and operating personnel operating personnel for video-to-scriptive devices shall have at least one non-speed of each film department, at least one radiation-to-scriptive staff, and at least one non-scriptive staff at least once a week, and medical specialists in the video-to-scriptive department shall perform overall control and supervision of the quality control of medical images of special medical equipment, evaluation of video-to-scriptive reading, and clinical reading service under Article 3(2)1 of the Rules on the Installation and Operation of Special Medical Equipment.

From December 20, 2010 to November 30, 2015, in each operation of a film recording device and a film recording device, the person entered into a contract with Nonparty 1, etc. with the subject of video reading, and had them attend the meeting of the subject of the case in order to make a video reading, in violation of the human resources management rules, such as working in real time without having them attend the meeting of the subject of the case in order to request the reading using a remote transmission program, and working in the way of sending the records by remote transmission of the results of the video reading, but the person filed a report with a non-speed doctor to have worked in accordance with the standards for the installation and operation of special medical equipment and filed a claim for unfair medical care benefit costs, such as computer type diagnostic fees, fee for video photographing, etc.

E) On December 16, 2016, Defendant Corporation was served with the Plaintiff on December 16, 2016, on the basis of the pertinent decision, the “National Health Insurance Act”, “170,605,380 won”, “170,605,380 won”, “electronic verification error, unfair benefit reimbursement”, “computer-off”, and “electronic reimbursement method.” The aforementioned decision-making statement was accompanied by the “detailed on the determination of the reimbursement of medical care benefit cost”, in which the details of unfair benefit (the name, resident registration number, starting date of medical examination and treatment, the number of days of entry and exemption

F) Upon filing an objection and filing an administrative appeal against the instant restitution disposition, the Plaintiff argued to the effect that “The instant restitution disposition in accordance with the instant operational guidelines is an unlawful or abused disposition, since the operating guidelines that enable a medical specialist to visit once a week to the non-exclusive image department have no legal effect, and thus, it cannot serve as the basis for the instant disposition.”

[Reasons for Recognition] Each of the evidence mentioned above, Eul's evidence Nos. 1, 2, Eul's evidence No. 3, Eul's evidence No. 2, 3, Eul's evidence No. 4-1, 2, Eul's evidence No. 5, Eul's evidence No. 6, and the purport of the whole pleadings

3) Determination on the instant case

According to the above facts, it appears that Defendant Corporation only stated in the Act and subordinate statutes based on Article 57 of the National Health Insurance Act and did not state specific reasons. However, it was sufficiently known that the Plaintiff’s ground for this case’s restitution disposition was the grounds for this case’s restitution disposition through the on-site verification and on-site investigation procedure by Defendant Corporation and Defendant Minister, which was conducted prior to the instant restitution disposition. Furthermore, this case’s restitution disposition contains specific details of medical care benefits subject to the instant disposition. Ultimately, it was possible for the Plaintiff to know how the instant restitution disposition was conducted through the overall process up to the instant disposition, including the contents indicated in the instant disposition, relevant Acts and subordinate statutes, and the overall process up to the relevant disposition. Accordingly, it is reasonable to view that Defendant Corporation fulfilled its duty of presentation of reasons under the Administrative Procedures Act. Accordingly, this part of the Plaintiff’s assertion on other premise is without merit.

(d) Whether the standards for human resources for the operation of a Computerization team recording device and a wired-out photographing device have been violated;

The reasoning for this part of this Court is that the relevant part of the reasoning of the judgment of the court of first instance is the same as that of the relevant part of the reasoning, except for those written or added as follows. Thus, this part of the reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of

○ 11 15 to 21 lines shall be deleted.

○○ 12 up to 12 lines “The part which, because of the absence of visit, it may be inferred that it did not conduct ....” is as follows.

『방문하지 않았다. 이에 따라 소외 1, 소외 3, 소외 4는 품질관리검사에 관한 사항 즉 환자 테이블의 이동간격 정확도 시험, 관전압 시험, 관전류 시험, 표준팬텀의 요건 및 표준 팬텀 촬영조건 등에 관하여 제대로 알지 못한 채 이 사건 전산화단층 촬영장치, 유방촬영용 장치를 통해 촬영된 영상만을 원격으로 보고 그 이상 여부를 판단할 수밖에 없었다.』

○○ 14 1-3 lines of “Written Confirmation (Evidence A 8-1, 2)” are as follows.

“A certificate (Evidence No. 8-1, 2) and a certificate (Evidence No. 27) written by Nonparty 1 as evidence. However, Nonparty 1’s recommendation for replacement cannot be believed in light of the absence of objective data that Nonparty 1 recommended replacement, the relationship between the Plaintiff and Nonparty 5, and Nonparty 1, and the time of preparation of each written confirmation.”

○ 16. The following shall be added to the 7th line below:

In full view of the contents of each of the instant dispositions in accordance with the facts as seen earlier, the developments leading up to each of the instant dispositions, and the content of the relevant statutes, the grounds for each of the instant dispositions are as follows: “The Plaintiff’s assertion on the premise that each of the instant dispositions is based on the operating guidelines under the premise that the instant dispositions is based on the operation guidelines under which the specialists of the non-exclusive image department, who are not effective, will not have visited the instant Council members once a week, shall not perform the overall and supervision of the quality control of the medical image of the special medical equipment, the evaluation of image image, and the clinical reading of the clinical image.” Therefore, the Plaintiff’s assertion on this part is without merit.

E. Whether the calculation of the improper amount of each of the instant dispositions of business suspension and the calculation of the recovery amount of the instant disposition is unlawful, and whether each of the instant dispositions of business suspension deviates from and abused discretion

The reasoning for this part of the judgment of the court of first instance is the same as that of the relevant part of the reasoning of the judgment of the court of first instance. Thus, this part of the reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article

F. Sub-committee

Each disposition of this case does not constitute an unlawful ground as alleged by the plaintiff.

3. Conclusion

The Plaintiff’s claim against the Defendants is without merit. The judgment of the court of first instance is justifiable with its conclusion. Thus, the Plaintiff’s appeal against the Defendants is dismissed as all of the grounds for appeal are without merit.

Judges gate Charter (Presiding Judge)