[1] Requirements for considering the circumstances asserted by the parties as to the property status when there was no illegal act in calculating the amount of property damage caused by the illegal act

[2] The case holding that the National Health Insurance Corporation's tort liability against the National Health Insurance Corporation was established on the ground that a medicine manufacturer actively committed deception in order to apply the special provisions on the direct production of raw materials when publicly notifying medicines subject to health care benefit under the National Health Insurance Act and the maximum amount thereof

[3] Whether a person who intentionally committed a tort by using the victim's care can assert the offsetting of negligence on the ground of the victim's care (negative)

[4] In a case where the National Health Insurance Corporation seeks a claim for damages due to a tort against a pharmaceutical company that sold medicines to a medical care institution, whether Article 43(3) of the National Health Insurance Act can be applied or applied by analogy (negative), and whether the provision of office management under Article 734 of the Civil Act or the provision of the same Act can also claim damages for excess co-payment due to the cooking (negative

[1] Property damage caused by a tort refers to the difference between the property disadvantage caused by an illegal harmful act, i.e., the property condition that would have existed without the illegal act and the current property condition that caused the illegal act. In calculating the amount of damages, first of all, the property condition that would have existed if the illegal act had not been committed. Considering the circumstances to be considered in considering the property status of the case where the illegal act had not been committed can be acknowledged by a reasonable trend comprehensively taking into account the various circumstances before and after the illegal act. If the circumstances asserted by the parties are not recognized by such trend, it may not be considered to present the property status of the case where the illegal act had

[2] The case holding that when an administrative agency publicly announces the medicine subject to medical care benefits and its upper amount subject to medical care benefits under the National Health Insurance Act and the National Health Insurance Act and publicly notifies the manufacturers of complete medicines to produce the raw materials, the above special provisions apply to not only the direct production of the raw materials, but also the case where the manufacturer holds more than a majority of the company producing the raw materials through authoritative interpretation of the special provisions on the "special cases on the direct production of the raw materials" which acknowledges the highest price for the manufacture of the raw materials, the above special provisions apply to the case where the manufacturer of the medicines has obtained the highest price for the medicines without intent to continuously hold the majority of the stocks of the raw materials manufacturer, but also requested the examination agency to apply the above special provisions as if the manufacturer continues to acquire the stocks of the raw materials manufacturer with intent to return them temporarily and formally, while submitting the evidentiary documents on the possession of the stocks at the discretion of the examination agency, such special provisions constitute a fraudulent act which led to the examination of the above special provisions or omission of the Health Insurance Review & Assessment Service or the Minister of Health and Welfare in mistake, the amount of damages should be calculated based on the difference between the medical care benefit cost amount actually paid.

[3] If the victim's negligence is acknowledged in a lawsuit claiming damages, the court shall take such factors into account in determining the liability for damages and the amount thereof, and even if the person liable for damages does not assert the victim's negligence, the court shall ex officio examine and determine it in the event that the victim's negligence is recognized by the litigation materials. However, if a person who intentionally committed the tort by using the victim's care and care makes a claim to reduce his/her liability on

[4] Article 43(3) of the National Health Insurance Act provides that the National Health Insurance Corporation shall deduct excess of the cost of health care benefit from the payment to the health care institution and refund such excess amount to the subscriber. However, it is only a provision prepared for procedural convenience in recovering the excess amount of co-payment paid in the course of the Corporation's health care benefit payment to the health care institution. In a case where the Corporation seeks a claim for tort damages against the pharmaceutical company that sold the drug to the health care institution, the above provision may not be applied or applied by analogy, and it cannot be deemed that the Corporation may exercise another person's right in the lawsuit by its administrative management provision or cooking, or the right to conduct litigation for the health insurance subscribers.

[1] Articles 393 and 763 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act; Article 14 of the former Rules on the Standards for Medical Care Benefits in National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 328 of October 11, 2005) / [3] Articles 396 and 763 of the Civil Act / [4] Articles 1, 734, and 750 of the Civil Act; Article 43 (3) of the National Health Insurance Act

[1] Supreme Court en banc Decision 91Da33070 Decided June 23, 1992 (Gong1992, 2235) Supreme Court Decision 2008Da37414 Decided September 10, 2009 (Gong2009Ha, 1621) Supreme Court Decision 2009Da91828 Decided April 29, 2010 (Gong2010Sang, 90Sang, 9Da50538 Decided January 21, 200 (Gong200Sang, 482), Supreme Court Decision 2005Da32197 (Gong205Ha, 1772) Decided October 7, 2005)

National Health Insurance Corporation (Law Firm Barun, Attorneys Kim Dong-dong et al., Counsel for the defendant-appellant)

Madvers Co., Ltd. (Attorney Park Jong-il, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na33596 decided January 22, 2010

Of the part of the judgment below against the plaintiff, the part on the claim for damages concerning the plaintiff's charge is reversed, and that part of the case is remanded to the Seoul High Court. The remaining grounds of appeal by the plaintiff

We examine the grounds of appeal.

1. As to the Plaintiff’s ground of appeal No. 1

A. Even if an administrative disposition is unlawful, the effect of the administrative disposition shall not be denied without permission for the reason of the defect, except where there is a reason to regard the defect as null and void because of its significant and apparent defect, and if the defect in the administrative act is merely a reason to revoke it, the benefit arising therefrom shall not be deemed to be a benefit without legal cause unless the disposition is revoked (see Supreme Court Decision 94Da2800, Nov. 11, 1994, etc.).

Meanwhile, in order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is in violation of the important part of the law, and the purpose, meaning, function, etc. of the law should be examined from a teleological perspective to determine whether the defect is significant and obvious, and at the same time, reasonable consideration should be made on the specificity of the specific case itself. In a case where an administrative agency has taken an administrative disposition by applying a certain provision of a law to a certain legal relation or factual relationship, despite the absence of room for dispute over the interpretation of the law, if the administrative agency made a disposition by applying the above provision, notwithstanding the lack of room for dispute over the interpretation, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation of the law because the legal principles on the legal relation or factual relations are not clearly revealed, it is merely erroneous as to the fact of the disposition (see, e.g., Supreme Court Decisions 2002Da68485, Oct. 15, 2004>

B. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and judged that even if the defendant gains any profit by performing drug transactions with the medical care institution on April 22, 2005, it cannot be deemed that the defendant obtained any profit without legal grounds, since the defendant not only held 52.5% of the shares of the Daehee Chemical Co., Ltd. (hereinafter referred to as the "Gyeongchemical"), but also the defendant's disposal of the above shares was before the date of the first public notice, it cannot be deemed that the first public notice of this case constitutes the invalidation due to significant and obvious defects. The second public notice of this case is a new administrative disposition changing the contents of the first public notice of this case, which is the previous administrative disposition, but it does not constitute revocation of the previous administrative disposition retroactively. In light of the above public notice, in light of the legal principles as seen above, it is just in light of the records, and there is no error in the misapprehension of legal principles as to unjust enrichment or administrative act as alleged in the ground of appeal.

2. As to the Defendant’s grounds of appeal Nos. 1 and 2

A. The lower court determined that: (a) unlike the general reproduction drug to compensate for efforts made by a manufacturer of an syeast drug in the event that the manufacturer of the syeast drug produces the drug as a raw material and to encourage the development of technology; (b) the administrative agency applied the special provisions of this case in cases where the manufacturer of the syeast drug directly produces the drug through interpretation of the special provisions of this case as well as where the manufacturer holds more than a majority of the drug manufacturer’s share; (c) if the Defendant actively demanded the application of the special provisions of this case on the ground that he holds more than a majority of the syeast chemical producer, it is obvious that the special provisions of this case would not apply; and (d) if there were changes in factual relations on the grounds of administrative disposition, such as disposal of the shares, the Defendant did not notify the administrative agency of such circumstances; and (d) In light of the fact that the upper limit was examined as KRW 109 won at the first stage of review by the Pharmaceutical Special Evaluation Committee, the Defendant did not take active action such as selling the drug shares at the Committee’s.

B. According to the reasoning of the judgment below and the record, the defendant acquired 50% of the shares of Daehee chemical, a raw material manufacturing company, and owned 2.5% again in the process of the examination, and immediately notified it to the Health Insurance Review and Assessment Service. As a result of the Pharmaceutical Evaluation Committee meeting of the Health Insurance and Assessment Service, when the maximum amount of KRW 479 is recognized, the defendant returned the above shares to the seller again before the day before the amendment of the list of the medicine benefits and the amount of benefits was announced. The defendant, as a pharmaceutical company, was aware of the medical care benefits and the calculation standard of the maximum amount of the medical care benefits and the amount of the medical care benefits with respect to the drug of this case.

In light of these facts, the defendant, without the intention of holding a majority of the stocks of the scarchemical, obtained the maximum price for the instant medicine without the intention of returning it temporarily and formally, and requested the examination agency to apply the special provisions of this case as if he continued to hold a majority of the stocks of the scarchemical. It is reasonable to view that the defendant's act constitutes an active deception that causes mistake to the Health Insurance Review & Assessment Agency or the Minister of Health and Welfare, which examines the application of the special provisions. Therefore, even though the profits earned by the defendant by the 1st public notice of this case do not constitute a gain without any legal ground, if the plaintiff suffered loss due to the above fraudulent act by the defendant, the defendant shall be liable for damages caused by the tort to the plaintiff.

Therefore, the court below is just in its conclusion that the defendant bears tort liability even though it is somewhat inappropriate in its explanation of its reasoning, and there is no error in the misapprehension of legal principles as to the duty of disclosure and the damages caused by tort, or in violation of the rules of evidence.

3. As to ground of appeal No. 2 by the plaintiff

A. Property damage caused by a tort refers to the difference between the property damage caused by an illegal harmful act and the current property damage caused by the illegal act (see, e.g., Supreme Court en banc Decision 91Da33070, Jun. 23, 1992) and the current property damage caused by the illegal act (see, e.g., Supreme Court Decision 91Da33070, Jun. 23, 1992). Thus, in calculating the amount of damages, the property damage would have existed if the illegal act had not been committed. Considering the property damage in the absence of the illegal act, the circumstances should be recognized by a reasonable reasoning that reflects the various circumstances before and after the illegal act. If the circumstances alleged by the parties are not recognized by such trend, it cannot be considered to refer to the presentation of property damage caused by the illegal act (see, e.g., Supreme Court Decisions 2008Da37414, Sept. 10, 209; 2009Da91828, Apr. 29).

B. The lower court determined that, in light of the following: ① (a) the maximum amount of the instant medicine would have been determined not by the Defendant’s tort but by KRW 109 won; (b) the difference in the above maximum amount could only be the basis for calculating the maximum amount of profit that the Defendant could have earned; (c) even if the Defendant gains such profit, it cannot be said that the amount of such profit would have been paid immediately as the Plaintiff’s amount of damages; (b) there is no evidence to prove that there was a special circumstance that the Defendant would have manufactured and sold the instant medicine even if the maximum amount was determined to be KRW 109 because the Defendant did not obtain the special provision of this case; and (c) medical care institutions, if the instant medicine was not sold, purchase another medicine, the same medicine, which was the same, for which the Plaintiff had bought the instant medicine, for the same period after the Plaintiff sold the instant pharmaceutical product based on the public notice of this case, the amount of damages suffered by the Plaintiff would have been calculated by dividing the difference between the sales amount of the instant medicine and the total sales amount of the instant medicine (305757).

C. Such determination by the court below is based on the assumption that the defendant would not manufacture and sell the above drugs if the maximum amount of the drugs of this case was determined as KRW 109,00. The presumption that the 3,047,557, which the defendant sold during the same period, would have been replaced with the selling amount in equal proportion by the 9 medicines of this case. However, in light of the above legal principles and records, the plaintiff's property status of the defendant who had not committed the above act in this case should be viewed as the status of the case where the defendant did not assert the application of the special provisions of this case by deception. The defendant's presentation that the drug of this case itself was not manufactured and sold goes beyond the scope of reasonable reasoning to view that the maximum amount of 3,047,557, which the above 3,047,57, which was estimated to be replaced by the 9 medicines of this case, show a big difference between 122,000 won and 479 won, and therefore, the above circumstances in the judgment of the court below cannot be considered the above illegal act.

Therefore, the damages suffered by the Plaintiff due to the Defendant’s deception are the difference between the medical care benefit cost actually paid to the medical care institution within the scope of 479 won recognized as the maximum amount of the instant medicine and the medical care benefit cost calculated based on the maximum amount of 109 won, which would have been determined without the Defendant’

Nevertheless, the judgment of the court below that calculated the amount of damages by the plaintiff is erroneous in the misunderstanding of legal principles as to the calculation of damages caused by tort, which affected the conclusion of the judgment. The plaintiff's assertion assigning

4. The plaintiff's ground of appeal No. 4 and the defendant's ground of appeal No. 3

A. If the victim's negligence is acknowledged in a lawsuit claiming damages, the court shall take such factors into account in determining the liability for damages and the amount thereof, and even if the person liable for damages does not assert the victim's negligence, the court shall ex officio examine and determine it in the case where the victim's negligence is recognized by the litigation materials. However, it is not permissible to allow the person who intentionally committed the tort by taking advantage of the victim's care to reduce his responsibility on the ground of the victim's negligence (see Supreme Court Decision 2005Da32197, Oct. 7, 2005).

B. The lower court determined that the Defendant’s liability for damages should be limited to 80%, in light of the ideology of the damage compensation system that fair sharing of damages, the Minister of Health and Welfare, prior to making the second public notice on October 2007, did not take measures to adjust the maximum amount for reasons such as changes in the method of supplying raw materials or changes in the equity ratio of the company that produces raw materials, and the Minister of Health and Welfare, etc. did not take follow-up measures to manage and supervise the validity of the determination of the maximum amount of the instant drug or the supply and demand relationship of raw materials after the lapse of two years after the first public notice. In full view of the fact that the Plaintiff’s damage appears to have increased more due to such circumstances, the Minister of Health and Welfare, etc. did not take follow-up measures to control and supervise the validity of the determination of the maximum amount of the instant drug or the supply and demand relationship of raw materials.

C. However, in light of the legal principles as seen earlier, even if the Plaintiff neglected to take ex post facto management and supervision measures, it is not permissible to recognize the reduction of liability on the ground of the Plaintiff’s negligence. The Plaintiff’s failure to take measures to regulate the upper limit amount on the ground that there was a change in ownership ratio, etc. shall not be deemed a ground for restriction deemed reasonable from the perspective of the fair sharing of damages. Since the Defendant actively conducted deception to apply the special provisions of this case, there is no room to discuss the issue of violation of the duty of disclosure on the ground of change in the circumstances after determining the upper limit amount, such ground shall not be deemed a ground for restriction on the scope of liability for damages.

Nevertheless, accepting the defendant's claim for reduction in accordance with the circumstances in the judgment of the court below, limiting the scope of the defendant's liability to 80% of the total amount of damages shall be deemed to have affected the conclusion of the judgment by misunderstanding the legal principles on limitation of liability in calculating the amount of damages and failing to exhaust all necessary deliberations. The plaintiff's assertion to the same purport is with merit, and

5. The plaintiff's ground of appeal No. 3

In Article 43(3) of the National Health Insurance Act, where the Plaintiff already paid the medical care benefit costs to the medical care institution, the insured shall be refunded by deducting the excess amount. However, it is only a provision prepared for the procedural convenience in recovering the excess amount of co-payment paid in the course of paying the Plaintiff’s medical care benefit costs to the medical care institution, and there is no possibility that the above provision may be applied or applied by analogy to the medical care institution in this case where the Plaintiff claims damages compensation for tort against the pharmaceutical company selling the instant drugs. In addition, it cannot be said that the office management provision or cooking of Article 734 of the Civil Act provides that the Plaintiff may exercise another’s right in the lawsuit or the right to conduct litigation for the health insurance subscribers

The court below's rejection of this part of the plaintiff's assertion is just and acceptable, and it did not err by misapprehending the system for the refund of personal shares under the National Health Insurance Act and the legal principles on the management of affairs under the Civil Act.

6. Conclusion

Therefore, among the part of the judgment below against the plaintiff, the part concerning the claim for damages against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff and the appeal by the defendant are dismissed as they are without merit. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Hong-hoon (Presiding Justice)