Silsan Life Insurance Co., Ltd. (Law Firm 000, Attorney Choi Jae-sik, Counsel for defendant-appellant)

Defendant (Law Firm LLC, Attorneys Kang Young-hwan et al., Counsel for the defendant-appellant)

March 16, 2018

Seoul Central District Court Decision 2016Da5230846 Decided September 11, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 38,090,000 won with 5% interest per annum from May 16, 2013 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On May 29, 2003, the Plaintiff, an insurance company, is the Defendant, and the insured is the Defendant, and entered into an insurance contract that includes the content of guaranteeing daily allowances when hospitalized (hereinafter “instant insurance contract”).

B. From February 20, 1995 to May 14, 2013, the Defendant received surgery and hospitalization from multiple hospitals for about 1457 days in approximately 68 times, and received insurance proceeds from the Plaintiff including the same details as the attached Table.

C. Since then, the Defendant was investigated by the Seoul Dongjak Police Station on the ground of the fact that “In addition to the instant insurance contract, the Defendant acquired insurance proceeds from the insurance companies including the Plaintiff by means of hospitalization or excessive hospitalization, even though it is not necessary to undergo hospital treatment after concluding the insurance contract with Samsung Bio-resources and the Eastyang Bio-resources, etc.,” and the Seoul Dongjak Police Station requested the Health Insurance Review and Assessment Service to review the appropriateness of the details of hospital treatment received by the Defendant while seizing medical records, etc. according to the search and seizure warrant

D. Accordingly, the Health Insurance Review and Assessment Service, among the 68-time details of hospitalization, determined that even if there was no need for hospitalization or there was a need for hospitalization according to the case, it was excessively hospitalized in excess of the appropriate number of hospitalization days stated in the “regular hospitalization days” column as stated in the attached Table.

E. The prosecutor belonging to the Seoul Southern District Prosecutors' Office, who received the above case, decided not to prosecute the part concerning the receipt of insurance money from August 1, 2005 to November 27, 2007, on the ground that the statute of limitations for 7 years has expired, on the ground that the part concerning the receipt of insurance money from around August 1, 2005 to around November 27, 2007, which was evaluated as proper hospitalization by the Health Insurance Review and Assessment Service, was "no suspicion", and as to the hospitalization evaluated as not proper hospitalization by the

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5-2, 3, and 6, the purport of the whole pleadings

2. Judgment on the main claim

A. Relevant legal principles

(1) “Hospitalization” means that a patient suffers from a disease while staying in a hospital in cases where continuous observation by a medical staff is necessary with respect to side effects or incidental effects of drugs which are very low in resistance power or are administered, and where the management of drugs and drinking foods is necessary, it is necessary to continuously ensure that the patient’s pains are more inconvenience in treatment, or where the patient’s condition is in a situation where the patient is unable to cope with pain or where the patient’s risk of infection exists, etc., and whether such hospitalization is necessary should be determined by taking into account the patient’s symptoms, diagnosis and treatment details, the patient’s actions, etc. (see Supreme Court Decision 2008Do4665, May 28, 2009).

(2) However, in light of the concept of “hospitalization” as seen above, it is reasonable to view that the case of hospitalization in an insurance contract as the ground for the payment of insurance money, such as general injury and hospitalization, where hospitalization takes place at home due to reasons such as difficulty in treatment, i.e., the case of being hospitalized for the purpose of treating injury or disease. Therefore, in a case where the Defendant was hospitalized without the necessity of hospitalization, such hospitalization does not constitute a ground for the payment of insurance money as stipulated in the insurance contract, and thus, the Plaintiff, an insurance company, is not obligated to pay insurance money.

(3) Meanwhile, in the event that the obligation to return unjust enrichment does not require the intention or negligence of the person liable to return the unjust enrichment, and thus, even if the Defendant received hospitalized treatment according to the judgment of the doctor in charge, if the necessity of hospitalization is not recognized, the daily amount of hospitalization for the period of hospitalization for which hospitalization is unnecessary should be returned

B. The occurrence and scope of return of unjust enrichment

(1) The judgment of the Health Insurance Review and Assessment Service on admission 40 times listed in the attached Table is as follows.

In light of the table Nos. 1, 2, 5 through 10, 31 through 34, the number 1, 34 was hospitalized by 30 or institutional infection. ① The Health Insurance Review and Assessment Service, as to the 1st 33-day hospitalization for the treatment and transitional observation, it appears that the 33-day hospitalization for the treatment and transitional observation is appropriate, and that the 45-day hospitalization is excessive. ② As for the 2nd 33-day hospitalization after the Defendant was hospitalized for the same 45-day hospitalization and 43-day hospitalization, it was deemed that the 1-day hospitalization was appropriate for the treatment and observation of the 30-day hospitalization without changing symptoms, ③ The 5-day hospitalization for 30 days by 12,000,000, and again, the 1-6th 2-day hospitalization for the treatment and observation of the 3-day hospitalization by the Defendant respectively, and the 1-day hospitalization for 24,000 new 2-day hospitalization.

○ Attached Nos. 3 was hospitalized as a hump disease, and the Health Insurance Review and Assessment Service determined as follows: “As the Health Insurance Review and Assessment Service re-hospitalizes the same injury and disease without any other symptoms change, one week hospitalization and treatment for treatment and transitional observation is appropriate.”

○ Attached Nos. 4, 13, 14, 17, 18, and 40 are hospitalized in the column of the semi-salvar, and the judgment of the Health Insurance Review and Assessment Service is as listed below.

Considering the fact that up to four weeks of hospitalizations continued for treatment and progress observation due to the adequate number of 1419 times of hospitalizations for treatment and progress observation in consideration of the fact that four weeks of hospitalizations for treatment and progress observation continued due to the proper number of 1752 times of hospitalizations, four weeks of hospitalizations for treatment and progress observation continued due to the proper number of 1752 times of hospitalizations and re-hospitalizes for treatment and progress observation by taking into account the fact that 4 weeks of hospitalizations continued to be adequate number 1840 times of 1840 times of hospitalizations, and that 4 weeks of hospitalizations for treatment and progress observation continues to continue to be appropriate number 1752 of hospitalizations, in consideration of the fact that 4 weeks of hospitalizations for treatment and progress observation by the care and progress of the relevant hospital has continued to be re-hospitalized, the proper number of 4 weeks of hospitalizations to observe the treatment and progress progress by taking into account the fact that the treatment and progress progress progress by the relevant hospital has continued to be rehospitalized.

○ Attached Nos. 11 determined that “The Ministry of Health, Welfare and Family Affairs shall be hospitalized for 29 days in the main lake and marsh for two copies and chests, and that there was only the same symptoms before three days, so the Ministry of Health, Welfare and Family Affairs determined that “the treatment for one week for treatment and transitional observation is appropriate.”

As to the attached table Nos. 12, the Health Insurance Review and Assessment Service determined that “The level of hospitalization for three weeks shall be appropriate in consideration of the fact that the left-hand shoulder has caused pains after the operation, and that the person under whose control it has undergone an inception to the upper-hand shoulder.” The attached table Nos. 15 and 16 determined that the Health Insurance Review and Assessment Service was hospitalized for 21 days and 19 days again after being hospitalized for 36 days after being hospitalized for 36 days, and that each “the level of hospitalization for 1 week for treatment and transitional observation,” and that the attached table Nos. 19, 20 was hospitalized for 15 days and 22 days after the operation, respectively, and that the Health Insurance Review and Assessment Service was hospitalized for 15 days after the surgery, and that each “the level of hospitalization for one week to observe the treatment and progress is adequate.”

○ Attached Nos. 21 and 22 determined that “The Health Insurance Review and Assessment Service was hospitalized for 25 days each by the elbbow pain, and for 20 days, respectively, that “the level of hospitalization for one week is appropriate for the treatment and transitional observation.”

○ 별지 표 순번 23 내지 26는 무릎뼈의 연골연화로 각 40일, 21일, 10일, 32일간 입원한 것인데, 건강보험심사평가원은 ① 순번 23은 ‘양무릎 통증으로 관절경적 감압교정술을 한 점을 감안하여 치료 및 경과관찰을 위하여 3주 정도의 입원진료가 적정하다’고 보았고, ② 순번 24는 ‘동일상병, 증상으로 입퇴원을 반복하므로 1주 정도의 입원진료가 적정하다’고 보았으며, ③ 순번 25는 ‘환자증상변화없이 입퇴원을 반복하는 점 등을 감안하여 입원진료는 불필요하다’고 판단하였고, ④ 순번 26은 ‘동일상병, 증상으로 입퇴원을 반복하므로 1주 정도의 입원진료가 적정하다’고 보았다.

[Attachment Nos. 27 and 28] 27 and 28 were hospitalized for 24 days in order of 29 days in order to be influence in detail. The Health Insurance Review and Assessment Service determined that the number Nos. 27 was 27 that “inasmuch as the person was hospitalized in another hospital after an operation, and the person was hospitalized in the relevant hospital because the person continued to be hospitalized in the hospital, so that only one week of hospitalization for treatment and progress observation is appropriate,” and that the number Nos. 28 determined that “a week hospitalization for treatment and progress observation is appropriate.”

[Attachment 29] The Ministry of Health and Welfare determined that [Attachment 29] 29 was hospitalized for 14 days on the Gyeong-kung-kung-kak, 30 days on the pelvis and 19 days on the pelvis, and that the Health and Welfare Review Agency is adequate for the treatment and transitional observation, respectively.”

[Attachment 35] The Ministry of Health and Welfare determined that: (a) [Attachment 35] was hospitalized for 29 days in the name of selling tree tunnels, kne, kne-free, kne-free, 18 days in the name of 36 days in the name of kne-free, 21 days in the name of kne-si, 38, 14 days in the name of kne-free, and 39 in the name of kne-free, and 23 days in the name of kne-free, and (b) 36, 37 in the name of kne-free, and 38 in the name of kne-free, and (c) 39 in the name of kne-free, discharged from another hospital for 17 days in the name of kne-free, and was hospitalized for 23 days in the name of kne-free, and (d) in the name of kne-free.”

(2) On the basis of the medical records seized by the police, the aforementioned determination by the Health Care Review and Assessment Service seems to have judged the appropriateness of the period of hospitalization of the defendant, comprehensively taking into account the symptoms of the defendant raised, the seriousness of the disease, the degree of treatment received during the period of hospitalization, the period required for the pertinent treatment, and the fact that the defendant raised the same injury and disease, and repeated hospitalization and discharge at multiple hospitals while resisting the same injury and disease. In particular, the Health Review and Assessment Service seems to have determined that where the defendant complained of the pain, it is not easy to readily conclude that hospitalization is unnecessary without any particular change in symptoms or treatment details, and that only one week hospitalization is appropriate for the progress observation. In light of this, the above determination by the Health Review and Assessment Service for a period exceeding this period is deemed to have determined that the hospitalization of the patient is appropriate for the above legal principles in light of the aforementioned factors, where it is necessary to observe the medical staff's constant side effects of the patient's disease or the side effects of incidental treatment, where it is necessary to continuously undergo hospital treatment or treatment, etc.

(3) Therefore, even if the necessity of hospitalization is not recognized for each period of time after deducting the adequate number of days of hospitalization from the number of days of hospitalization indicated in the attached Table, the Defendant received hospitalized treatment and received the daily allowances for hospitalization from the Plaintiff, an insurance company, and thereby obtained benefits equivalent to the same amount without legal grounds. Therefore, the Defendant is obligated to return the amount equivalent to the same amount as unjust enrichment. Furthermore, the amount of unjust enrichment to be returned to the Plaintiff by the Defendant to the Plaintiff is KRW 38,090,000, as shown in the attached Table “Total” column.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff the above 38,090,000 won as unjust enrichment return, and the interest or delay damages calculated at the rate of 15% per annum under the Civil Act from May 16, 2013, which is the last payment date of insurance money (the defendant is considered to be a malicious beneficiary, and thus is obligated to return interest from the payment date of each insurance money to the payment date), and from October 12, 2016, which is the delivery date of a copy of the complaint of this case, 5% per annum under the Civil Act until October 12, 2016, and from the next day to the day of full payment.

3. Conclusion

Therefore, all of the plaintiff's claims shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall be just and the defendant's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Lee Jong-hee (Presiding Justice)