The purpose of introducing the National Health Insurance Act Article 41(2) of the National Health Insurance Act, Article 8(2) of the Regulations on the Standards for Medical Care Benefits in National Health Insurance, and the Ministry for Health, Welfare and Family Affairs’s “the list of health insurance benefit, non-benefit benefit, and relative point value” as publicly notified by the Ministry for Health, Welfare and Family Affairs is to introduce the system for dietitians, cooks’ additional dues, selective additional dues, and selective additional dues / Whether a dietitian, dietitian, or cook is a “affiliated” of a health care

According to Article 41(2) of the National Health Insurance Act and Article 8(2) of the Regulations on the Standards for Medical Care Benefits in National Health Insurance under Article 41(2) of the National Health Insurance Act and Article 8(2) of the Regulations on the Standards for Medical Care Benefits in National Health Insurance, “the list of health insurance act benefits, non-paid benefits and relative value points” (wholly amended by the Ministry of Health, Welfare and Family Affairs No. 2008-168, Dec. 26, 2008; hereinafter “public notice”), nutrition and cooking shall be calculated according to the number of full-time dietitians and cooks belonging to a health care institution, and selective acid shall be calculated in cases where at least one dietitian belonging to a health care institution is full-time (hereinafter referred to as “nutrition, cook’s additional dues, and selective additional dues”). Additional dues system aim at ensuring the stability of the employment of professional personnel and improving

Examining the provisions of the National Health Insurance Act and the National Health Insurance Act in light of the purport of the introduction of the additional dues system, whether dietitians and dieticians (hereinafter “nutritions, etc.”) belong to a medical care institution should be determined based on whether the medical care institution actually employs dietitians, etc. and directs and supervises them, instead of whether the medical care institution has entered into a formal employment contract with dietitians, etc. Furthermore, in order to determine this, the following should be comprehensively taken into account: (a) the process of employing dietitians, etc.; (b) preparation of meals group; (c) preparation and inspection of food materials; (d) preparation and inspection; (e) preparation procedures; (e) management of cooking and cooking hygiene; and (e) whether the medical

Article 41(1) and (2), and Article 115(2)5 of the National Health Insurance Act; Article 8(2) of the Regulations on the Standards for Medical Care Benefits in National Health Insurance; Article 347 of the Criminal Act

Defendant 1 and 15 others

Defendants and Prosecutor

Attorneys Son Ji-yol et al.

Seoul High Court Decision (Chuncheon) 2015No16 decided June 3, 2015

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendants’ grounds of appeal

A. As to the grounds of appeal on the facts charged

Examining the reasoning of the judgment below in light of the evidence duly adopted by the court below or the relevant legal principles, it is just to determine that the court below, on the grounds stated in its reasoning, deeming that it is inevitable to comprehensively indicate personal information and the amount of damage as to the crime of defraudation of victimized patients among the facts charged in this case, and that there is no hindrance to the exercise of the defendants' right to defense, and that this part of the facts charged was specified. There is no error of law by misapprehending the legal

B. As to the ground of appeal on the requirement of additional payment

(1) According to Article 41(2) of the National Health Insurance Act and Article 8(2) of the Regulations on the Standards for Medical Care Benefits in National Health Insurance, the list of health insurance benefit and non-paid benefit and relative value points (wholly amended by the Ministry of Health, Welfare and Family Affairs No. 2008-168, Dec. 26, 2008; hereinafter the “instant notice”), dietitians and cookss shall be calculated based on the number of full-time dietitians and cooks belonging to the relevant medical care institution, and selective acids shall be calculated based on the number of full-time dietitians and cooks belonging to the relevant medical care institution (hereinafter the “instant additional dues”). The instant additional dues system is to secure professional human resources to promote the qualitative stability of patient awareness and improve services, and thus to compensate expenses actually borne by the hospital.

Examining the provisions of the National Health Insurance Act and the notice of this case in light of the purport of the introduction of the additional dues system, whether dietitians and dietitians (hereinafter “nutritions, etc.”) belong to the relevant medical care institution shall be determined not by whether the medical care institution has concluded a formal employment contract with dietitians, etc. but by whether the medical care institution has actually employed dietitians, etc. and is under the direction and supervision of them. Furthermore, to determine this, the following should be comprehensively taken into account: (a) the process of employing dietitians, etc.; (b) preparation of meals group; (c) preparation of food materials ordering and inspection; (d) preparation of cooking materials; (e) cooking procedures; and (e) management of cooking and hygiene; and (e) whether the medical care institution has actually controlled and

(2) The lower court acknowledged the facts and circumstances as indicated in its reasoning, such as the fact that ○○○○○○○○○○○ was again paid to the pertinent hospital as expenses for management and maintenance, etc., in accordance with a special agreement entered into with the instant consignment hospital, and determined that the relevant dietitian, etc. was subject to the direction and supervision of ○○○○○○○○○○○○○○, not the instant consignment hospital, notwithstanding the valid employment relationship between the instant consignment hospital and dietitians, on the ground that the relevant dietitian, etc. was not the instant consignment hospital, and thus, it was difficult to view that

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court and the aforementioned legal principles, the lower court’s determination is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding “the affiliation of a medical care institution,” which is a requirement for the payment of the instant surcharge, or by misapprehending the principle of logic and experience and free evaluation of evidence, or by

C. As to the grounds of appeal on deception and deception

The deception as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in the wide sense of trust and good faith in the transactional relationship. It is sufficient to say that such deception does not necessarily mean any false representation as to the important part of a juristic act, and it does not necessarily mean that it is the basis for judgment in order to have an offender take a disposition of property which he wishes to take by mistake. Therefore, in a case where it is recognized that a transaction would not take place if the other party to the transaction would have been notified of a certain situation, a person who receives property or acquires pecuniary benefits has a duty to notify the other party of such situation in advance in accordance with the principle of good faith. Nevertheless, failure to notify the fact that the other party would have to take place would induce the other party to commit fraud (see, e.g., Supreme Court Decision 2014Do9099, Oct. 15, 2014).

Meanwhile, insofar as the criminal intent of defraudation, which is a subjective constituent element of fraud, is not a confession of the defendant, it is inevitable to determine by comprehensively taking account of the objective circumstances such as the defendant’s financial history, environment, content of the crime, and process of transaction before and after the crime. The crime of fraud is also established by doluss negligence. It refers to the case where the possibility of the occurrence of the crime is uncertain as a subjective element of the constituent element of the crime, and the possibility of the occurrence of the crime is recognized, and there is a perception of the possibility of the occurrence of the crime in order to have the criminal intent. Furthermore, there is a need to deliberate on the possibility of the occurrence of the crime in order to allow the risk of the crime. Considering how the possibility of the occurrence of the crime is assessed by the general public based on the specific circumstances, such as the form of the act and the situation of the act, etc. being performed outside the country, the psychological condition should be confirmed from the perspective of the offender (see, e.g., Supreme Court Decisions 207Do8781, Jan. 18, 2008).

Examining the reasoning of the judgment below in light of the evidence duly adopted by the court of first instance and the legal principles as seen earlier, the court below acknowledged the circumstances as stated in its holding, and found that the Defendants’ act constitutes a deception, at least on the premise that the Defendants’ act constitutes a fraudulent act, by recognizing that the dietitians, etc. employed by the instant commissioning hospital falls under the category of ○○○○○ Group, and thus could not meet the requirements for the payment of the instant surcharge. In so doing, the court below did not err by misapprehending the legal principles on deception or fraud in fraud, or by misapprehending the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is just for the court below to determine that Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) concerning △△△ Hospital among the facts charged in this case against Defendant 1 constitutes a case where there is no proof of criminal facts. Contrary to the allegations in the grounds of appeal, there is no

Meanwhile, the prosecutor appealed on the part of the judgment below regarding the violation of the National Health Insurance Act. However, there is no specific ground of appeal as to this part of the petition of appeal or appellate brief.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)