[1] In a case where a medical care institution issues a prescription with a prescription outside of the medical care benefits standard as a medical care benefit item, whether such act constitutes an unlawful act under Article 750 of the Civil Code in relation to the National Health Insurance Corporation, which is the insurer (affirmative), and the amount of damages suffered by the National Health Insurance Corporation by issuing the above prescription (=amount equivalent to the medical

[2] Whether the fact-finding or the calculation of the rate of comparative negligence or the grounds for limitation of liability in a tort compensation case constitutes the exclusive authority of the fact-finding court (affirmative in principle)

[1] Articles 393, 750, and 763 of the Civil Act; Article 41 of the National Health Insurance Act; Articles 5 and 9(1) [Attachment 2] [Attachment 2] of the Regulations on the Standards for Medical Care Benefits in National Health Insurance / [2] Articles 393, 396, 750, and 763 of the Civil Act

[1] Supreme Court Decision 2009Da78214 Decided March 28, 2013 (Gong2013Sang, 717) Supreme Court Decision 2009Da104526 Decided March 28, 2013 / [2] Supreme Court Decision 2010Da42532 Decided October 11, 2012

School Foundation Mung Institute (Law Firm Sejong, Attorneys Gyeong-wheeled et al., Counsel for the defendant-appellant)

National Health Insurance Corporation (Attorney Ansan-young, Counsel for defendant-appellee)

Seoul High Court Decision 2011Na61303 decided July 26, 2013

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A medical care institution is not entitled to medical care benefits, since non-permanent prescription outside the medical care benefits standard cannot be included in the medical care benefits standard, and thus, it is prohibited from issuing a prescription with the medical care benefit standard. Nevertheless, if a medical care institution issues a prescription with the non-exclusive prescription outside the medical care benefits standard as the subject of medical care benefits, even though such prescription is intended to fulfill the best medical care obligation for patients, and cannot be deemed an unlawful act in relation to the health insurance subscribers, etc., it is an act causing an insurer to incur losses to the medical care benefits, which is not the subject of medical care benefits, and thus, the State’s act of causing damage to the national health insurance system or order that has legalized and formed the insurance finance based on the social insurance principle in order to realize the obligation to protect the health of the citizens under the Constitution, it constitutes an unlawful act under Article 750 of the Civil Act in relation to the insurer, and the damage suffered by the insurer is the amount equivalent to medical care benefits paid by the insurer to the Health Insurance Review and Assessment Service upon a request for examination of the relevant medical care benefits such as pharmaceutical fees and pharmaceutical expenses (see, Mar. 28, 2018, etc.

After finding the facts as stated in its holding, the court below determined that the Plaintiff’s extra prescription violates the medical care benefit standard, and constitutes an illegal act under Article 750 of the Civil Act in relation to the Defendant, the insurer, and thus, the Plaintiff is liable to compensate for damages equivalent to the medicine cost paid by the Defendant to the pharmacy as the medical care benefit cost due to the illegal act of issuing the prescription, taking the extra prescription out of the medical care benefit standard from November 2001 to August 2008.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, such judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the burden of proof of damages

2. Regarding ground of appeal No. 2

Where a victim is negligent in the occurrence or expansion of damage or there is a ground to limit the tortfeasor's liability in a damage compensation case due to a tort, it should be taken into consideration as a matter of course in determining the scope of liability for damages. However, determination of fact-finding or its ratio on comparative negligence or grounds for limitation of liability is within the discretionary authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2010Da42532, Oct. 11, 2012

Examining the reasoning of the judgment below in light of the above legal principles and records, it is just to limit the plaintiff's liability to 80% of the defendant's liability for damages on the ground that it is not appropriate in light of the ideology of the damage compensation system, which is fair in apportionment of damages, that the court below should bear all damages to the defendant due to the issuance of the plaintiff's foreign prescription on the ground of the circumstances in its reasoning, and there is no error of law that affected the conclusion of the judgment

3. Regarding ground of appeal No. 3

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable to have rejected the Plaintiff’s assertion as to abuse of the right of set-off on the grounds that the exercise of the Defendant’s right of set-off in this case is beyond the purpose and function of the set-off system or it is difficult to be legally protected. In so doing

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.

Justices Kim Yong-deok (Presiding Justice)