Plaintiff (Attorney Kim Jae-sik, Counsel for plaintiff-appellant)

National Health Insurance Corporation (Attorney Cho Jae-ho, Counsel for defendant-appellant)

August 25, 2016

Seoul Western District Court Decision 2015Ra1713 Decided January 14, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 91,749,243 won with 5% interest per annum from the day following the delivery of the complaint of this case to the day of receiving the application for modification of the purport and cause of the claim of this case, and 15% interest per annum from the next day to the day of complete payment.

1. The reasoning for the court’s explanation concerning this case is as stated in the reasoning of the judgment of the first instance except for the following judgments. Thus, it is acceptable to accept this as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

A. The plaintiff's assertion

1) Pursuant to Article 49 of the National Health Insurance Act, the Plaintiff has a right to directly claim reimbursement of the medical care expenses equivalent to the medical care benefits, other than the right to claim the payment in kind, for the insured or his/her dependent. If the Plaintiff had received medical care at his/her own expense, as in the instant case, and where the Plaintiff could not claim the medical care benefits through the medical care institution due to the “emergency or other inevitable reasons” as provided in the National Health Insurance Act, and thus, the Plaintiff may directly claim

2) Article 23(1) and (2) of the Enforcement Rule of the National Health Insurance Act provides that the scope of the insured or the insured’s claim for medical care expenses against the Corporation shall be narrow and thus null and void in light of the purpose of national health insurance to contribute to improving national health and promoting social security by providing citizens with insurance benefits for the prevention, diagnosis, medical treatment, rehabilitation, childbirth, death, and improvement of health.

B. Determination

The provisions pertaining to the plaintiff's assertion are as follows.

Article 49 (Medical Care Costs)

(1) Where a policyholder or his/her dependent has received medical care for a disease, injury, childbirth, etc. from an institution prescribed by Ordinance of the Ministry of Health and Welfare (including a medical care institution under the period of suspension of business under Article 98 (1)) which performs functions similar to a medical care institution due to an emergency prescribed by Ordinance of the Ministry of Health and Welfare or other inevitable reasons or has given birth to a policyholder or his/her dependent in a place other

Article 23 (Medical Care Expenses)

(1) "Urgent or other unavoidable reasons prescribed by Ordinance of the Ministry of Health and Welfare" in Article 49 (1) of the Act means any of the following cases:

1. Where it is unable to use a medical care institution or no medical care institution exists;

2. Where a chronic renal failure patient purchases and uses pyrosis or expendable materials used for automatic pyroids at a drug sales office, other than a medical care institution, according to a doctor's prescription.

3. Where a patient in need of outpatient treatment receives oxygen treatment at a home by the method determined and publicly announced by the Minister of Health and Welfare in accordance with a doctor's medical prescription for outpatient treatment.

4. Where he/she purchases or uses expendable materials used for blood transfusion tests or insulin therapy according to a medical doctor's prescription at a medical device sales office other than a medical care institution.

5. Where a congenital psychotropic patient purchases or uses expendable materials used for self-ururology at a medical device sales office, other than medical care institutions, according to the medical prescription of the doctor.

6. Where a person with a disease determined and publicly announced by the Minister of Health and Welfare, who requires artificial smoking, uses an artificial smoking machine leased according to a doctor's prescription.

(2) "Institution prescribed by Ordinance of the Ministry of Health and Welfare" in Article 49 (1) of the Act means any of the following institutions:

1. Medical institutions, etc. excluded from medical care institutions under the latter part of Article 42 (1) of the Act;

2. The drug sales business (in cases falling under item (b), limited to the drug sales business office registered with the Service), other than the medical care institutions that sell the following goods, to persons receiving medical care benefits due to dives from among chronic renal failure patients:

(a) An amount of ingucos;

(b) Consumable materials used for automatic labing.

3. Institutions registered with the Service (limited to cases where the relevant patient is provided) among institutions, other than medical care institutions, which provide oxygen treatment services at home to patients in need of oxygen treatment with medical care due to the outbreak of oxygen, etc. at home;

4. A medical device sales center, other than medical care institutions that sell expendable materials used for blood transfusion tests or in insulin infections to patients suffering from vaccination, and registered with the Service.

5. A medical device sales business, other than medical care institutions that sell expendable materials used for self-ururology to congenital patients, and registered with the Service.

6. An institution registered with the Corporation, other than medical care institutions that lend it to patients in need of artificial absorption.

According to Article 49(1) of the National Health Insurance Act and Article 23(1) and (2) of the Enforcement Rule of the above Act, a policyholder or a dependent shall receive medical care benefits in kind through a medical care institution, but where an institution prescribed by Ordinance of the Ministry of Health and Welfare, which functions similar to a medical care institution due to exceptional circumstances or other unavoidable reasons, receives cash benefits in cases where the institution has received medical care for illness, injury, childbirth, etc. or has given birth at a place other than a medical care institution. Therefore, there is no evidence to regard the Plaintiff’s medical care institution as an institution similar to a “medical care institution” under Article 23(2) of the above Enforcement Rule, and there is no evidence to regard it as an “emergency or inevitable reason prescribed by Ordinance of the Ministry of Health and Welfare” under Article 23(1) of the above Enforcement Rule, and

In addition, as alleged by the Plaintiff, Article 23(1) and (2) of the Enforcement Rule of the National Health Insurance Act provides that the case where the insured or the insured can claim the medical care expenses shall be narrow and shall not be deemed to go against the purpose of the National Health Insurance Act. Therefore, this part of the claim is

3. Conclusion

Therefore, the judgment of the court of first instance is just and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Ansan-ho (Presiding Judge)