[1] In a case where a medical institution established by a person who is unable to establish a medical institution provides medical care benefits under the National Health Insurance Act and claims expenses for benefits, whether a disposition to collect unjust enrichment under Article 57 of the National Health Insurance Act is subject to the disposition to collect unjust enrichment under Article 57 (1) and (2) of the National Health Insurance Act (affirmative)

[2] Whether unjust enrichment collection under Article 57(1) and (2) of the National Health Insurance Act constitutes an act of discretionary discretion (affirmative), and in a case where a person who established a medical institution or a person who established a non-medical person collects the full amount of medical care benefit costs from a person who established a medical institution or a person who established a non-medical person without considering such circumstance, whether the person who established a medical institution or the person who established a non-medical person is deprived of

[1] According to the National Health Insurance Act, a medical care institution provides medical care benefits to policyholders, etc., and claims the National Health Insurance Corporation (hereinafter the “Corporation”), and the Corporation shall pay medical care benefit costs to a medical care institution (Articles 42 and 47). The Corporation shall collect all or part of the amount equivalent to the relevant care benefit costs from a medical care institution that received insurance benefit costs by deceit or other unjust means (Article 57(1)). If a person who cannot establish a medical institution, in violation of Article 33(2) of the Medical Service Act, constitutes a medical institution that establishes and operates a medical license or medical corporation, etc. under leased the name of a medical care institution, it may be jointly and severally liable to pay the money collectible from the person who established the medical institution (Article 57(2)). If the payment is not made, it may be collected in accordance with the example of disposition on national taxes in arrears (Article 81(1)

In addition, according to Article 40(1)1 of the National Health Insurance Act, health care benefit is provided at the "medical institution established under the Medical Service Act". According to Articles 33(2), 66(1)2, 87, and 90 of the Medical Service Act, the eligibility for the establishment of a medical institution is limited to a doctor, etc., and it is strictly prohibited to establish a medical institution by a person who is not qualified for the establishment of a medical institution.

In light of the contents, stay, etc. of the above provisions, given that a medical institution established by a person who is unable to establish a medical institution cannot be a medical care institution under the National Health Insurance Act, providing medical care benefits and claiming expenses for benefits under the National Health Insurance Act fall under “influence or any other unlawful means,” and thus, subject to a disposition of unjust enrichment collection pursuant to Article 57 of the National Health Insurance Act. In such cases, a person who established the relevant medical institution becomes the other party to the disposition of unjust enrichment collection pursuant to Article 57(1) of the National Health Insurance Act, and a person who actually established and operated the relevant medical institution by borrowing the name is the other party

[2] Article 57(1) of the National Health Insurance Act provides that “The National Health Insurance Corporation shall collect all or part of the amount equivalent to the relevant insurance benefits or expenses for insurance benefits from a person who has received the insurance benefits or a medical care institution that has received the insurance benefits costs by deceit or other fraudulent means.” This provision aims to ensure the soundness in the finance of health insurance and medical benefits through the maintenance of a desirable benefit system by preventing the medical care institution from claiming the payment of the expenses for benefits by unjust means. However, as a medical care institution, it has a characteristic of indivities because it results in the failure of the reimbursement of the expenses for health care benefits already provided due to the collection

Meanwhile, the previous National Health Insurance Act provides that only a medical institution that has received insurance benefit costs may collect unjust enrichment. However, Article 57(2) of the National Health Insurance Act newly established on May 22, 2013 provides that “Where a medical care institution that has received insurance benefit costs by deceit or other unjust means pursuant to paragraph (1) falls under any of the following subparagraphs, the National Health Insurance Corporation may require the person who has established the relevant medical care institution to pay money to such medical care institution jointly with the person who has established the medical care institution.” Article 33(2) of the Medical Service Act provides that “a medical institution established and operated by a person who is unable to establish a medical institution in violation of Article 33(2) of the Medical Service Act by borrowing the name of the medical person’s license or medical corporation, etc., and provides a basis for collecting unjust enrichment from the founder of a non-medical institution.” On the other hand, Article 33(2) of the Medical Service Act provides that a non-medical person who has established and operated the medical institution shall not be subject to a fine of 00 billion won or less.

In light of the contents of each of the above statutory provisions, stay and legislative purport, and the legal nature of collecting unjust enrichment, it is reasonable to view that the collection of unjust enrichment under Article 57(1) and (2) of the National Health Insurance Act is discretionary act. Moreover, it may be deemed that collecting the full amount of the medical care benefit from a medical institution’s founder or non-medical person in violation of the principle of proportionality, barring special circumstances, to the extent that the collection of the full amount of the medical care benefit from the medical institution’s medical care benefit provided (whether a qualified medical person implemented the medical care benefit, whether it falls under the category of the medical care benefit, whether it is an appropriate level, or whether it is so-called excessive medical treatment) and the amount of the medical care benefit provided by the medical institution, the role and illegality of non-medical person who established and opened the medical institution in the course of establishing and operating the medical institution, the degree of interest gained by the non-medical person and the

[1] Articles 40(1)1, 42, 47, 57(1) and (2), 81(1) and (3) of the National Health Insurance Act; Articles 33(2), 66(1)2, 87, and 90 of the Medical Service Act / [2] Articles 1, 57(1) and (2)1 of the National Health Insurance Act; Articles 33(2), 87, and 90 of the Medical Service Act; Article 27 of the Administrative Litigation Act

[2] Supreme Court Decision 2018Do10779 Decided November 29, 2018 (Gong2019Sang, 248) Supreme Court Decision 2015Du3996 Decided June 4, 2020 (Gong2020Ha, 1367), Constitutional Court en banc Decision 2010Hun-Ba375 Decided June 30, 201 (HunGong177, 943)

Jin medical and consumer cooperatives et al. (Law Firm No. al., Counsel for the plaintiff-appellant)

National Health Insurance Corporation (Attorney Cho Byung-chul, Counsel for defendant-appellant)

Gwangju High Court Decision 2017Nu4504 decided April 26, 2018

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Whether it is subject to the disposition of unjust enrichment collection;

A. According to the National Health Insurance Act, a health care institution provides health care benefit to policyholders, etc., and requests the National Health Insurance Corporation (hereinafter “Corporation”) to pay health care benefit costs to a health care institution (Articles 42 and 47). The Corporation shall collect, in whole or in part, an amount equivalent to the relevant health care benefit costs from a health care institution that has received insurance benefit costs by deceit or other unjust means (Article 57(1)), and in a case where a person who cannot establish a medical institution, in violation of Article 33(2) of the Medical Service Act, constitutes a medical institution that establishes and operates a medical license or medical corporation, etc. under leased the name of the medical institution, it may be jointly and severally liable for payment with the person who established the medical institution concerned (Article 57(2)), and if not, it may be collected in the same manner as delinquent national taxes are collected (Article 81(1) and (3)).

In addition, according to Article 40(1)1 of the National Health Insurance Act, health care benefit is provided at the "medical institution established under the Medical Service Act". According to Articles 33(2), 66(1)2, 87, and 90 of the Medical Service Act, the qualifications for establishing a medical institution are limited to doctors, etc., and it is strictly prohibited that a person who is not qualified for establishing a medical institution establishes a medical institution.

In light of the contents, stay, etc. of the above provisions, given that a medical institution established by a person who is unable to establish a medical institution cannot be a medical care institution under the National Health Insurance Act, providing medical care benefits under the National Health Insurance Act and claiming expenses for such medical institution’s benefits ought to be deemed to be subject to the disposition of unjust enrichment collection pursuant to Article 57 of the National Health Insurance Act, since such medical institution’s provision of medical care benefits and claiming the expenses for such medical care fall under “influencies and other improper means.” In this case, a person who established the relevant medical institution becomes the other party to the disposition of unjust enrichment collection pursuant to Article 57(1) of the National Health Insurance Act

B. Based on its stated reasoning, the lower court determined that the instant hospital’s medical institution was a medical institution established and operated by Plaintiffs 2, 3, and 4, who are unable to establish a medical institution, and thus, the medical care benefit costs paid to the instant hospital are subject to the disposition of collecting unjust enrichment. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the collection of unjust enrichment under the National Health Insurance Act, or by exceeding the bounds of the principle

2. Whether the discretionary authority is deviates or abused;

A. Whether an administrative disposition is a binding act or discretionary act ought to be determined individually by taking into account both the stay and form of the provision that serves as the basis of the relevant disposition and the text thereof, the main purpose and characteristics of the administrative sector to which the relevant disposition pertains, and the individual nature and type of the relevant disposition itself. Judicial review of discretionary act ought to take into account the possibility of determining public interests based on the discretion of an administrative agency, and examine only whether the relevant disposition is deviation from or abused by a court without making its own conclusion, and whether the pertinent disposition violates the principle of proportionality and equality (see, e.g., Supreme Court Decision 2014Du37702, Oct. 4, 2018).

In a case where an administrative agency grants a certain discretion to determine the requirements and effects of a disposition, but an administrative agency took a disposition without balancinging the public interest to achieve the remaining disposition that was erroneous to have no discretion and the content and degree of the disadvantage suffered by the other party to the disposition, this is a non-exercise of discretionary power and thereby constitutes an illegal cause to revoke the relevant disposition due to the deviation and abuse of discretionary power (see, e.g., Supreme Court Decisions 2014Du45956, Aug. 29, 2016; 2017Du3874, Jul. 11, 2019).

The proportionality doctrine is the basic constitutional principle naturally derived from the principle of a constitutional state (see Constitutional Court en banc Decision 92Hun-Ga8, Dec. 24, 1992). The means to achieve the administrative purpose should be effective and appropriate for the accomplishment of the objective, and should be the minimum infringement as possible, and the introduction of the means should not lead to the public interest in which the infringement is intended (see Supreme Court Decision 96Nu10096, Sept. 26, 1997). In particular, in a case of a disciplinary measure taken for the breach of duty by the other party to the disposition, the relation should be recognized in full view of the violation of duty and the determination of sanctions, and in a case where the imposition of sanctions significantly lose validity under the social social norms because of the excessive imposition of sanctions compared to the violation of duty, it should be deemed that the act constitutes a deviation or abuse of discretionary authority (see, e.g., Supreme Court Decision 2012Du48298, Sept. 26, 2019).

B. Article 57(1) of the National Health Insurance Act provides that “The NHIS shall collect all or part of the amount equivalent to the relevant insurance benefits or expenses for insurance benefits from a person who has received insurance benefits or a medical care institution that has received expenses for insurance benefits by deceit or other unjust means.” The legislative purpose of the aforementioned provision is to ensure the soundness of the finance for health insurance and medical benefits through the maintenance of a desirable benefit system by preventing a medical care institution from claiming the payment of expenses for benefits in an unjust manner (see Constitutional Court en banc Decision 2010Hun-Ba375, Jun. 30, 201). However, as a medical care institution as a result of a failure to recover the expenses for health care benefits already provided due to the collection of unjust enrichment, it is in an infinite nature.

Meanwhile, the previous National Health Insurance Act provides that only a medical institution that has received insurance benefit costs may collect unjust enrichment. However, on May 22, 2013, Article 57(2) of the National Health Insurance Act newly established as of May 2, 2013 provides that “Where a medical care institution that has received insurance benefit costs by deceit or other unjust means falls under any of the following subparagraphs, the Service may require the person who has established the medical care institution to pay an amount to be collected under the same paragraph jointly with the medical care institution.” Under Article 33(2)1 of the Medical Service Act, “a medical institution established and operated by a person who is unable to establish a medical institution, in violation of the provisions of Article 33(2) of the Medical Service Act, under the name of a medical person’s license or medical corporation, provides a basis for collecting unjust enrichment from an opener of a non-medical institution.” On the other hand, the person who has established and operated the medical institution can only be punished by imprisonment with labor and a fine under the name of the person who has established and operated the medical institution.

In light of the contents of each of the above statutory provisions, stay and legislative purport, and the legal nature of collecting unjust enrichment, it is reasonable to view that the collection of unjust enrichment under Article 57(1) and (2) of the National Health Insurance Act is a discretionary act. Furthermore, it may be deemed that collecting the full amount of medical care benefit from a person who establishes and opens a medical institution without considering the medical institution’s content (whether a qualified medical person has provided medical care benefits, whether it falls under the category of medical care benefits, whether it is appropriate, whether it is so-called excessive medical treatment or not, etc.) and the amount of medical care benefit cost provided by a medical institution, the role and illegality of a non-medical person who establishes and opens a medical institution in the course of establishing and operating a medical institution, degree of belonging to the medical institution’s operational performance, degree of benefits earned by a non-medical person and an establisher of a non-medical institution, and other cooperation with the investigation, barring any special circumstances, is in violation

C. Nevertheless, without examining the above circumstances, the lower court determined that each of the instant dispositions, which collected the full amount of medical care benefit costs from the account holder or non-medical person founders, did not contravene the principle of proportionality. In so determining, the lower court erred by misapprehending the principle of proportionality and the legal doctrine on deviation and abuse of discretionary power, thereby adversely affecting the conclusion of the judgment. The Plaintiffs’ ground of appeal

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)