2015Guhap57901 Revocation of disposition on recovery of medical care benefit costs

1. A;

2. B

[Defendant-Appellant] Defendant 1

National Health Insurance Corporation

Attorney Kim Han-su, Counsel for the defendant-appellant

September 3, 2015

2015, 100.22

1. The plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s disposition to recover KRW 238,254,820 of the medical care benefit cost provided to Plaintiff A on December 2, 2014 and the disposition to recover KRW 401,690,300 of the medical care benefit cost provided to Plaintiff B shall be revoked.

1. Details of the disposition;

A. From November 1, 201 to June 13, 2013, Plaintiff A, an oriental medical doctor, established a 'D Hospital' in Gangdong-gu Seoul Metropolitan Government (hereinafter "the instant hospital") under his/her name, and performed medical practice at the instant hospital. Plaintiff B, an oriental medical doctor, established the instant hospital in its name from June 14, 201 to June 13, 201, and performed medical practice at the instant hospital after opening the instant hospital in its name.

B. On December 2, 2014, the Defendant issued a disposition to recover medical care benefit costs of KRW 238,254,820 (the portion paid from August 2, 2012 to June 13, 2013) to the Plaintiff on the ground that “E established and operated the instant hospital under the name of the Plaintiffs and violated Article 4(2) of the Medical Service Act” (hereinafter collectively referred to as “instant disposition”), and to recover KRW 401,690,300 (the portion paid from July 25, 2013 to August 26, 2014).

C. On December 3, 2014, the Plaintiffs filed an objection against the instant disposition with the Defendant, but the Defendant dismissed the Plaintiffs’ objection on January 28, 2015.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including branch numbers in case of additional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The Plaintiffs merely established and operated the instant hospital by running their business with E and jointly, and did not lend their names to E.

2) Article 4(2) of the Medical Service Act aims to prevent a medical person from establishing a medical institution at multiple places with the license of another medical person. Even if the Plaintiffs leased their names to E, it did not violate Article 4(2) of the Medical Service Act, as such, since Article 4(2) of the Medical Service Act was established and operated only the instant hospital.

B. Relevant statutes

/ Medical Service Act

Article 4 (Duties of Medical Personnel and Heads of Medical Institutions)

(2) No medical person shall establish or operate a medical institution under the name of another medical person.

Article 33 (Establishment, etc.)

(2) No person other than those falling under any of the following subparagraphs shall establish a medical institution. In such cases, a medical doctor may establish a general hospital, hospital, convalescent hospital or clinic, a dentist may establish a dental hospital or dental clinic, an oriental medical doctor may establish an oriental medical hospital, convalescent hospital or oriental medical clinic, and a midwife may establish a midwifery clinic only

1. A doctor, a dentist, a herb doctor, or a midwife;

(8) No medical person referred to in paragraph (2) 1 shall establish and operate two or more medical institutions under any pretext: Provided, That where a person who has not less than two medical licenses intends to establish a clinic-level medical institution, he/she may also establish a medical institution in one place only.

C. Determination

1) Determination on the first argument

In light of the following circumstances, Gap evidence 6, 7, and 8, Eul evidence 9-1, 11, and 13-1, and 2, Eul leased the building where the hospital was located in the name of its wife and bears the whole amount of funds to establish the hospital, such as lease deposit, and Eul concluded a contract with the plaintiff Eul on June 13, 2013 to transfer all of the permitted rights and facilities of the hospital, but Eul did not receive any consideration from the plaintiff Eul, and it was reasonable to view that the defendant was not involved in the personnel affairs and financial affairs of the hospital of this case, and the police officer of the hospital of this case to whom the plaintiff 6-1 was actually aware of the fact that the plaintiff 6-1 was actually aware of the fact that the police officer of the hospital of this case and the defendant 6-1, and that the plaintiff 6-1, who was finally aware of the fact that the police officer of this case had been assigned to the hospital of this case under the name of the plaintiff 6-1, 7, and the defendant 6-2, who was investigated.

2) Judgment on the second argument

Article 4 (2) of the Medical Service Act provides that "no medical person shall establish or operate a medical institution under the name of another medical person", and the main sentence of Article 33 (8) of the Medical Service Act provides that "no medical person shall establish or operate two or more medical institutions under any pretext."

The Plaintiffs asserts that Article 4(2) of the Medical Service Act aims to prevent medical personnel from establishing a medical institution at many places by licensing another medical personnel. However, Article 33(8) of the Medical Service Act prohibits medical personnel from establishing multiple medical institutions. As such, Article 4 of the Medical Service Act prohibits medical personnel from establishing multiple medical institutions.

Article 4(2) of the Medical Service Act overlaps with Article 33(8) of the Medical Service Act, and has no particular meaning. Moreover, since a medical person is likely to commit a violation of the Medical Service Act or operate a medical institution for the purpose of profit-making after lending his/her old age or credit from a medical person, it is necessary not to prohibit a medical person from establishing one medical institution under the name of another medical person. Therefore, Article 4(2) of the Medical Service Act does not prevent a medical person from establishing a number of medical institutions, but rather prevents a medical person from establishing a medical institution under the name of another medical person. Therefore, it is reasonable to deem that Article 4(2) of the Medical Service Act aims to protect the health of the people and promote the sound operation of the National Health Insurance by preventing a medical person from violating his/her obligations under the Medical Service Act.

Therefore, E’s act of establishing and operating the instant hospital under the name of the Plaintiffs violates Article 4(2) of the Medical Service Act.

3) Determination on the third argument

Article 4(2) of the Medical Service Act does not violate the principle of clarity because it is sufficiently anticipated that an act may be sufficiently expected if a person has a sound common sense and ordinary legal sentiment. Moreover, Article 4(2) of the Medical Service Act is for the public interest such as the protection of national health and the sound operation of the National Health Insurance, and the prohibition of establishing a medical institution under a name of another medical person is justifiable and its legislative purpose is appropriate as a means to achieve the above legislative purpose, and the foregoing provision may infringe on the medical person’s freedom of business. However, the public interest to achieve the above provision does not violate the principle of excessive prohibition, and thus, it does not violate the principle of excessive prohibition.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, judges and vice-ranking

Judges Kim Yong-han

Judges Seo-chul