The Korea Institute of Arts, the Korea Institute of Arts, the Korea General Assembly of the Korea Institute of Education (Law Firm Sejong, Attorneys Kim Jong-soo et al., Counsel for the defendant-appellant

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

Busan Metropolitan City (Government Law Firm Corporation, Attorneys Choi Jong-chul et al., Counsel for the defendant-appellant)

September 26, 2013

Seoul Western District Court Decision 2009Kahap6752 Decided August 12, 2011

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment under the following among the part concerning defendant National Health Insurance Corporation, shall be revoked.

The defendant National Health Insurance Corporation shall pay to the plaintiff 217,769,574 won and the amount calculated by applying 5% per annum from June 19, 2009 to October 17, 2013, and 20% per annum from the next day to the day of full payment.

2. The part of the judgment of the court of first instance against the defendant Busan Metropolitan City ordering payment exceeding the following amount is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

The defendant Busan Metropolitan City shall pay to the plaintiff 26,237,624 won with 5% interest per annum from June 18, 2009 to October 17, 2013, and 20% interest per annum from the next day to the day of full payment.

3. The remaining appeals by the plaintiff and the defendant Busan Metropolitan City are dismissed, respectively.

4. Of the total litigation costs, 2/3 of the portion arising between the Plaintiff and the Defendant National Health Insurance Corporation shall be borne by the Plaintiff, 1/3 by the Defendant National Health Insurance Corporation, 4/5 by the Plaintiff and Defendant Busan Metropolitan City, and 1/5 by the Plaintiff, respectively.

5. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The Plaintiff: (a) the National Health Insurance Corporation paid 20% interest per annum on KRW 1,353,125,080 and its 1,958,860 interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment; (b) the Busan Metropolitan City paid 131,18,120 interest per annum on KRW 1,958,860 from January 1, 2003; (c) the amount of KRW 14,476,980 from January 1, 204 for KRW 14,645,540 from the day of January 1, 206 to the day of complete payment; and (d) the portion of the Plaintiff’s interest on KRW 29,87,750 from the day of full payment to the day of complete payment; and (d) the portion of the Plaintiff’s interest on KRW 16,509 from the day of full payment to the day of full payment; and (d) the Plaintiff’s interest on KRW 2018.

2. Purport of appeal

The part against the plaintiff, among the parts against the defendant National Health Insurance Corporation in the judgment of the first instance, shall be revoked. The defendant National Health Insurance Corporation shall pay 984,126,600 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

Defendant Busan City: The part against the Defendant Busan City among the judgment of the first instance court is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

1. Basic facts

This court's reasoning is as follows, and this court's reasoning is the same as the corresponding part of the judgment of the court of first instance, so it is citing it by the main text of Article 420 of the Civil Procedure Act.

[Supplementary Use]

The National Health Insurance Act (hereinafter “Health Insurance Act”) shall be amended to “former National Health Insurance Act (amended by Act No. 9386, Jan. 30, 2009; hereinafter the same shall apply)” in Part 3, 17 of the first instance judgment (hereinafter “Health Insurance Act”).

○ The 4th 17-18th 18th 1st 1st 1st 1st 1st 1st 1st 1st 1st 2th 1st 1st 1st 1st 1st 1st 1

○ The Rules on the Standards for Medical Care Benefits under National Health Insurance (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 87, Jan. 13, 2009; hereinafter the same) of the first instance court Decision No. 21-22, “Rules on the Standards for Medical Care Benefits under National Health Insurance” shall be amended to the former Rules on the Standards for Medical Care Benefits under

○ Of the 7th judgment of the first instance court, “1,35,918,820 won” was “1,092,759,050 won for Defendant Corporation + 263,159,770 won for Defendant Corporation’s charges + 1,353,125,080 won for Defendant Corporation’s charges (=1,090,24,670 won for Defendant Corporation + 262,80,410 won for Defendant Corporation’s charges).”

○ No. 18 of the judgment of the first instance court shall be written with “No. 1 and No. 5 of the judgment of the first instance.”

2. Determination as to the claim against the defendant Corporation

This court's explanation is the same as the corresponding part of the judgment of the court of first instance in addition to using or deleting it as follows. Thus, this court's explanation is citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

[Supplementary or deleted parts]

○ “In excess” of the 7, 10, and 14 of the 8th judgment of the first instance court, each “in excess” has been done against the medical care benefit standard.

○ In paragraph 2 of Article 9 of the first instance judgment, the phrase “1,247,286,370 won” shall be read as “1,353,125,080 won”.

○ The part of the first instance court No. 9-3-4 of the judgment of the first instance is deleted.

○ From 9 to 14 pages 5 to 7 of the first instance judgment.

3. Determination as to the claim against the defendant Busan City

This court's explanation is the same as the corresponding part of the judgment of the court of first instance, since it has the same reasons as the corresponding part of the judgment of the court of first instance, in addition to deletion of 16, 20, 17, and 18 of the judgment of the court of first instance.

4. Determination as to the defendants' defenses, etc.

(a) Extinctive prescription defense;

(1) The defendants' assertion

According to Article 79(1)3 of the Health Insurance Act, Article 31(1)2 of the Medical Care Assistance Act, “right to receive insurance benefit expenses” and “right to receive medical care expenses” are extinguished by extinctive prescription unless they are exercised for three years. Thus, the Plaintiff’s claim for medical care benefit expenses corresponding to the portion that was deducted from and collected as “foreign prescription expenses” before June 1, 2006, which was filed in the instant lawsuit, was extinguished by the completion of prescription.

(2) Determination

However, as seen above, the Plaintiff’s claim of this case is not “the right to receive the insurance benefit cost” and “the right to receive the medical care benefit cost,” but is not “the right to receive the benefit benefit cost,” and as such, the Defendants’ claim for return of unjust enrichment equivalent to the portion of deduction and collection on the ground that the disposition taken by deducting and collecting the drug cost notified by the Review and Assessment Service based on Article 52 of the Health Insurance Act and Article 23 of the Medical Care Assistance Act is null and void as a matter of course. As such, the ten-year extinctive prescription as prescribed in Article 162(1) of the Civil Act shall apply. The Plaintiff’s claim for return shall be the one-year extinctive prescription as prescribed in Article 162(1) of the Civil Act. The Plaintiff’s claim for return

B. Offset defense

(1) The defendants' assertion

Since the medical care benefit standard has the nature of a mandatory provision, it is unlawful for doctors belonging to the plaintiff to issue an out-of-the-counter prescription that violates the medical care benefit standard as a violation of the compulsory provision. Accordingly, the defendants suffered damages from paying the unnecessary medicine cost of KRW 355,542,340 to a pharmacy in accordance with the above prescription. Therefore, each damage claim equivalent to the above amount arising from the above unlawful act against the plaintiff is set off against the plaintiff's each unjust enrichment return claim against the defendants.

(2) The Plaintiff’s liability for damages arises

(A) Since the primary and external prescription that deviates from the medical care benefit standards cannot be included in the medical care benefits amount, a medical care institution is not entitled to medical care benefits amount to the medical care benefit amount. Nevertheless, if a medical care institution issues a prescription with the primary and external prescription that deviates from the medical care benefit standard as the medical care benefit amount, even if the prescription is intended to fulfill the best medical care duty for patients, and thus cannot be deemed unlawful as to the subscribers, etc., it constitutes an act causing losses to the insurer to pay the medical care benefit amount, which is not the medical care benefit amount, by the State’s act of causing damage to the national health insurance system or order that has formed the insurance finance based on the social insurance principle to realize the obligation to protect the health of the people under the Constitution, and thus, it constitutes an unlawful act under Article 750 of the Civil Act in relation to the insurer (Supreme Court Decision 209Da78214 Decided March 28, 2013).

(B) In light of the above legal principles, the Plaintiff issued an out-of-the-counter prescription against the medical care benefit standards to patients who were within the hospital from November 2001 to March 2009, in light of the overall purport of the arguments as to this case’s health class, Eul’s evidence Nos. 4 to 6 (including paper numbers), and the Review and Assessment Service may recognize the fact that the Plaintiff notified each medical institution through the Korean Medical Association, the Korean Hospital Association, etc. of the purport that it would adjust improper medicine expenses, prescription fees, and preparation fees, in a case where it is deemed inappropriate or excessive compared with the name of the injury or disease, such as a prescription that is not appropriate from a medical point of view, and thus, it constitutes an unlawful act under Article 750 of the Civil Act in relation to the Defendant, who is the insurer, and it is reasonable to deem that the Plaintiff had an intention or negligence at the time of issuing the above non-the-counter prescription.

(C) Therefore, the Plaintiff is liable for compensating the Defendants for damages suffered by the Defendants due to the violation of the medical prescription issued, taking the out-of-the-counter prescription out of the medical care benefits guidelines from November 2001 to March 2009 as medical care benefits.

(3) Scope of liability for damages

(A) Damages

1) The damages suffered by the Defendant due to the medical institution’s act of having prescribed out-of-the-counter drugs in violation of the medical care benefit standard and having treated them as medical care benefits and having issued a prescription is the amount equivalent to the medical care benefit cost paid by the Defendants to the pharmacy when the pharmacy prepares and delivers the medicine to its subscribers, etc. according to the relevant prescription, and claims for the review of the medical care benefit cost, such as pharmaceutical expenses and pharmaceutical expenses, to the Review and Assessment Service (Supreme Court Decision 2009Da104526 Decided March 28

As to this case, the medicine cost of Defendant Corporation paid to Defendant Corporation to his pharmacy due to the tort of issuing a prescription out of the Plaintiff’s medical care benefit standard is KRW 1,090,244,670, and the medicine cost of Defendant Busan City is KRW 131,18,120, as seen earlier. Thus, the amount equivalent to the above amount is the amount of damages suffered by Defendants.

2) As to this, the Plaintiff asserted that if the delivery of medicine expenses under the medical care benefit standard violates the medical care benefit standard, the Defendants refused the claim as the Defendants, but the Defendants’ payment of medicine expenses to the pharmacy constitutes a debt payment or illegal consideration, and thus, there is no causation between the Plaintiff’s illegal extinctive prescription issuance act and the Defendant’s damage equivalent to the medicine expenses that the Defendant paid to the pharmacy. However, the Plaintiff’s assertion that there is no causation between the Plaintiff’s unlawful act and the Defendants’ damage. Thus, the Plaintiff’s above assertion

3) In addition, the Plaintiff asserts that there was no damage to the Defendants since the Defendants’ claim under the Health Insurance Act that can recover the full amount of the medicine cost of this case against the patients or pharmacies. However, it cannot be said that no damage was caused to the third party due to the tort. Therefore, the Plaintiff’s claim is without merit.

4) Lastly, the Plaintiff asserted that if the delivery of medicine expenses according to the non-pharmaceutical prescription violates the medical care benefit standard, the Defendants should have refused the claim of medicine expenses from the pharmacy, but the Defendant’s payment of medicine expenses to the pharmacy and then the claim for damages against the Plaintiff is not allowed against the good faith principle. However, the grounds alleged by the Plaintiff alone are insufficient to deem that the Defendants’ claim for damages against the Plaintiff for tort is against the good faith principle, and there is no other evidence to acknowledge

(b) Limitation of liability

1) In a case where a medical institution is liable for compensating the National Health Insurance Corporation for damages by prescribing the medical institution’s medical care benefits prescribed in excess of the medical care benefits standards and issuing the medical prescription outside of the medical care benefits, the scope of compensation for such damages may be limited in light of the ideology of the system of fair compensation for damages by taking into account all the circumstances, such as the background and motive leading up to the act, objective circumstances involved in the occurrence of damages by the National Health Insurance Corporation, and existence of profits suffered by the medical institution (Supreme Court Decision 2009Da78214 Decided March 28, 2013).

2) In full view of the circumstances surrounding the instant case’s health department and the process of the easitic or easitic process below acknowledged by the aforementioned evidence, the issuance of the above out-of-the-counter prescription to the Plaintiff is deemed inappropriate in light of the ideology of the damage compensation system, i.e., fair apportionment of damages, and thus, it is reasonable to limit the Plaintiff’s damage liability ratio to 80%

Although the Plaintiff’s above outdoor prescription exceeds the medical care benefit standard by deviating from the matters permitted or reported with respect to the medicine, among them, the Plaintiff’s medical treatment was conducted according to the clinical grounds at the time of performing the medical treatment in order to fulfill the best medical care obligation required under the Medical Service Act or the Medical Contract, and there seems to be cases where the Plaintiff has medical safety and validity, as well as the need to prescribe beyond the medical care benefit standard.

(b) The legal principle that if a medical care provider performs the best medical care for a patient outside the statutory non-benefit medical care area beyond the medical care benefit standard, the medical care provider may be treated as non-benefit and the patient may be charged with all of the medical care expenses. The Supreme Court en banc Decision 2010Du27639, 27646 (merged) Decided June 18, 2012 was presented. The non-emergency prescription of the instant case was presented prior to the presentation of the legal principle. However, the foregoing decision seems to have been followed by the medical care institution’s determination that “The medical care institution is entitled to exceptionally non-benefit medical care outside the framework of the National Health Insurance Act and receive the medical care expenses from the subscriber, etc.” As such, it is difficult to deny the possibility of serious damage to the national health insurance system if the amount of health care benefit is serious, and further, it seems that the medical care act beyond the aforementioned medical care benefit standard should be determined with careful consideration of the following circumstances.”

As seen above, in cases where a medical person provided the best medical treatment for a patient outside the statutory non-medical care area in the course of performing the duty of medical care benefits and performing medical treatment outside the medical care benefits standard, other than cases where the Plaintiff prescribed a high-priced medicine in violation of the medical care benefits standard, it appears that the Defendants were exempted from the payment of the relevant medical care benefits due to the Plaintiff’s failure to prescribe the medicine within the scope of the medical care benefits standard. This is also a case where a tort, etc. causes damage to the victim, and where a tort, etc. brings about the benefit at the same time, the benefit may be considered as the object of offsetting profit and loss in calculating the amount of compensation for damage. However, inasmuch as the Plaintiff’s assertion and certification as to the specific profit gained by the Defendants is exempted from the payment of medical care benefits, this cannot be considered

However, in the event that the Plaintiff prescribed excessive medicine in violation of the medical care benefit standard, it is difficult to see that such excessive prescription is helpful for the treatment of the patient, and thus, caused the Defendants to pay unnecessary medicine costs. Therefore, it is difficult to consider the Plaintiff’s liability for reasons that limit the Plaintiff’s liability. However, there is no assertion or proof as to what degree of medicine costs occurred from prescribing high-priced medicine among the drug costs borne by the Defendant due to the extra prescription outside of the medical care benefit standard of the Plaintiff, and whether it occurred from prescribing excessive medicine.

Therefore, as seen earlier, even if the Defendants derived benefit from paying certain expenses by prescribing high-priced drugs, and such circumstance may be considered as grounds for the Plaintiff’s limitation of liability, the possibility of including excessive prescribed medicine expenses difficult to be considered as grounds for the Plaintiff’s limitation of liability cannot be ruled out among the drug expenses borne by the Defendants due to out-of-the-counter prescription outside of the medical care benefit standards of the instant case, and the distinction is difficult. Such grounds for the Plaintiff’s limitation of liability should be limited to the Plaintiff’s limitation

Medical care benefit costs that can be paid by a medical institution in accordance with the original prescription are not calculated based on the type of medicine, the number of days of medication, and whether it is a composite prescription on the external management fees equivalent to the prescription fees. Therefore, the Plaintiff does not seem to have any economic benefit directly derived from the prescription outside of the medical care benefit standards of this case.

A. On the other hand, the Plaintiff’s argument was not accepted even in cases where the Plaintiff did not dispute from the beginning, or was disputing through the procedure of filing an objection, etc., even though it was possible for the Review and Assessment Service to dispute the reduction or adjustment decision of the Review and Assessment Service on the external prescription that deviates from the medical care benefit standard of this case. Therefore, the part related to the medical care benefit review standards, such as the ambiguity of the medical care benefit review standard of the Plaintiff’s claim for limitation of liability, unreasonableness, uncertainty, and gap between the reality of medical care benefits and the medical reality, etc., and the problems of the appeal procedure

3) Accordingly, against the Plaintiff, the Defendant Corporation has the damage claim arising from each tort committed by the Plaintiff (i.e., KRW 1,090,244,670 x limitation 80 x limitation 80 x limitation x 104,950,496 (i.e., KRW 131,188,120 x limitation 80 x limitation 80 %).

(4) Whether to offset

(A) The Defendants’ damage claim against the Plaintiff for tort (the Defendant Corporation’s KRW 872,195,736, and the Defendant Busan City KRW 104,950,496) is due at the same time. Thus, the aforementioned damage claim against the Plaintiff for the tort and the Plaintiff’s claim for return of unjust enrichment against the Defendants (the Defendant Corporation’s KRW 1,353,125,080, and KRW 131,18,120,00) are all set-off. The Defendant Corporation’s reply against July 17, 2009 and the written brief served on December 16, 201, including the declaration of set-off intention, concluded that both claims were extinguished within the equal amount of claims. Accordingly, the Plaintiff’s claim for return of unjust enrichment against the Defendant Corporation’s KRW 480,929,344,135,125,080, KRW 1280, KRW 136,281,29467,294).

(B) On this point, the Plaintiff’s claim for tort against the Plaintiff is finalized only when the scope of liability for damages is limited ex officio in the instant lawsuit. Therefore, it cannot be deemed that the claim was specifically established at the time of the declaration of offset. Thus, the Defendant’s claim for damages against the Plaintiff is not recognized as offset. However, due to the Defendant’s act of issuing an out-of-the-counter prescription in violation of the Plaintiff’s medical care benefit standard, the Defendant’s claim for damages against the Plaintiff is conclusive and effective as a result of the Defendant’s act of issuing the back-of-the-counter prescription to

(C) In addition, the Plaintiff asserts that exercising the right of set-off is an abuse of the right of set-off to exercise the right of set-off, which has contributed significantly to the occurrence of damages caused by the act of issuing the original medical care benefit guidelines in violation of the medical care benefit guidelines, based on the purpose and background leading up to acquiring the claim or obligation subject to set-off, and the specific and individual circumstances leading to exercising the right of set-off. In light of the specific and individual circumstances, if it deviates from the above purpose and function of the set-off system and there is no value to legally be protected, the exercise of the right of set-off shall not be permitted as it goes against the good faith principle or is an abuse of the right of set-off (Supreme Court Decision 2002Da59481 Decided April 11, 2003). In this case, it is difficult to view that the exercise of the right of set-off by the Defendants deviates from the purpose and function of the set-off system or is

(5) Sub-committee

Therefore, Defendant Corporation has an obligation to pay interest on 480,929,34 won (i.e., 1,353,125,00 won - 872,195,736 won) and damages for delay 263,159,70 won as cited in the first instance court among the above claims by the Plaintiff, as to the existence or absence of the obligation to pay damages for delay from June 19, 2009 to August 12, 201, the first instance court determined that it is reasonable for the Plaintiff to raise an objection as to the existence or absence of the obligation to pay damages for delay 20% per annum from the 20th day of the first instance court to the 20th day of the second instance court, 5% per annum as provided in the Civil Act, and 20% per annum as to damages for delay from the 206th day of the second instance court to the 19th day of the second instance court, 30% per annum as provided in the Civil Act.

5. Conclusion

Therefore, the plaintiff's claim against the defendants of this case shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed for the reasons for the reasons for the above recognition. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiff's appeal against the defendant Corporation and appeal against the plaintiff of Busan City shall be accepted, and the part against the plaintiff of the part against the defendant of the judgment of the court of first instance which ruled against the defendant Corporation shall be ordered to pay the above amount. The part against the defendant Busan City ordering payment exceeding the above recognition amount among the part against the defendant of the judgment of the court of first instance shall be revoked, and the part against the defendant of the judgment of the court of first instance against the defendant Busan City shall be revoked, and the plaintiff's claim corresponding to the revoked amount shall be dismissed. Since the remaining part of the judgment of the court of

Judges Gangnam-gu (Presiding Judge)