[1] In a case where medical care benefits were provided at a medical institution that was not lawfully established in violation of Article 33(2) of the Medical Service Act, whether the above medical care benefits are included in the medical care benefits amount under the National Health Insurance Act (negative)

[2] Whether unjust enrichment collection under Article 57(1) of the National Health Insurance Act is a discretionary act (affirmative)

[3] Whether unjust enrichment collection under Article 57(2) of the National Health Insurance Act constitutes an act of discretionary discretion (affirmative)

[1] Article 33(2) of the Medical Service Act, Articles 41 and 42(1)1 of the National Health Insurance Act / [2] Article 57(1) of the National Health Insurance Act / [3] Article 57(2) of the National Health Insurance Act, Article 33(2) of the Medical Service Act

[1] Supreme Court Decision 2012Da72384 Decided May 14, 2015, Supreme Court Decision 2014Da229399 Decided May 29, 2015 / [2] Supreme Court Decision 2015Du3996 Decided June 4, 2020 (Gong2020Ha, 1367), en banc Decision 2010Hun-Ba375 Decided June 30, 201 (Hun-Gong177, 943) / [3] Supreme Court Decision 2018Do10779 Decided November 29, 2018 (Gong2019Sang, 248)

Plaintiff (Law Firm LLC, Attorneys Lee Jong-ho et al., Counsel for the plaintiff-appellant)

National Health Insurance Corporation

Busan High Court Decision 2017Nu23803 decided January 17, 2018

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

The grounds of appeal are examined.

1. Object of the disposition of unjust enrichment collection;

A. If medical care benefits were paid at a medical institution that was not lawfully established in violation of Article 33(2) of the Medical Service Act, the pertinent medical institution does not constitute a medical care institution that is entitled to claim for medical care benefits under the National Health Insurance Act, and thus the said medical care benefits cannot be included in the medical care benefits amount under the National Health Insurance Act (see Supreme Court Decision 2014Da229399, May 29, 2015).

B. The lower court determined that a non-medical person’s medical care benefit paid to a medical care institution established by borrowing the name of a person eligible for the establishment of a medical institution is subject to the disposition of unjust enrichment collection. The lower judgment is based on the foregoing legal doctrine, and did not err by misapprehending the legal doctrine on unjust enrichment collection

2. A founder of a medical institution;

The lower court, on the grounds indicated in its reasoning, determined that the instant hospital was a medical institution that was established and operated under the name of ○○○○○○○○○○○○ Cooperative (hereinafter “the Plaintiff’s common plaintiff”) on March 28, 2014. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. Deserting or abusing discretionary power;

A. 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 who has received expenses for insurance benefits by deceit or other fraudulent means.” The legislative purpose of the 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, 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, and thus, in light of the content and stay of the provision of the above Act, legislative intent, and legal nature of the collection of unjust enrichment, it is reasonable to deem the collection of unjust enrichment under Article 57(1) of the National Health Insurance Act as discretionary act (see Supreme Court Decision 2015Du3996, Jun. 4, 201).

B. Meanwhile, Article 57(2) of the National Health Insurance Act newly established on May 22, 2013 provides that only a medical care institution that received insurance benefit costs may collect unjust enrichment. However, the National Health Insurance Act provides that “Where a medical care institution that received insurance benefit costs by deceit or other unjust means pursuant to paragraph (1) falls under any of the following subparagraphs, the Corporation may require the person who established the relevant medical care institution to pay the money to be collected pursuant to the same paragraph jointly with the medical care institution.” Meanwhile, subparagraph 1 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 care corporation, etc., in violation of Article 33(2) of the Medical Service Act” and provides a basis for collecting unjust enrichment from a non-medical person founder. In this case, the Defendant issued a disposition to collect the full amount of the medical care benefit paid to the Plaintiff, a non-medical person who established the medical care

The collection of unjust enrichment under Article 57(2) of the National Health Insurance Act is also an act of discretionary discretion. However, “the act of establishing a medical institution by a non-medical person” under Article 33(2) of the Medical Service Act means that a non-medical person takes the lead of the recruitment and management of human resources and human resources of a medical institution, the establishment report, the performance of medical business, the raising of necessary funds, and the reversion of the operational performance (see Supreme Court Decision 2018Do1079, Nov. 29, 2018). Therefore, in determining whether collecting the full amount of medical care benefit costs for non-medical persons who have established a de facto medical institution within the scope of discretionary authority, the following should be considered: (a) the fact that the non-medical person takes the leading role in the process of establishing and operating the medical institution; (b) the degree of illegality; and (c) the profit and loss

C. Examining the circumstances revealed in the record and the judgment of the court below, we affirm the judgment below holding that the instant disposition does not constitute deviation or abuse of discretionary power, considering the following: “The Plaintiff, a de facto founder, was not entitled to establish a medical institution (violation of the Medical Service Act); the Plaintiff’s account that was unable to establish a medical institution due to lack of the substance of Nonparty’s biological consultation; the Plaintiff’s establishment and operation of the instant hospital was concealed; and the Defendant was paid medical care benefit costs (Fraud) by being sentenced to a suspended sentence of three years in January and June; and the Plaintiff was aware of the fact that only the Plaintiff, including medical personnel, was able to establish a medical care institution; however, the Plaintiff’s establishment of the instant hospital was well aware of the fact that the Plaintiff did not constitute deviation or abuse of discretionary power. In so doing, the court below did not err by misapprehending the legal principles on proportionality and abuse of discretionary power, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

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 Noh Tae-tae (Presiding Justice)