[1] The meaning of "a continuous and other unfair means" under Article 57 (1) of the former National Health Insurance Act

[2] In a case where a medical care institution provided medical care benefits and received medical care benefits without complying with the procedure and requirements set forth in the part concerning the claim for medical care benefits when sharing facilities, human resources, equipment, etc. of a medical care institution among the “general matters”, whether it constitutes “a continuous and unfair method” under Article 57(1) of the former National Health Insurance Act (affirmative)

[3] Article 1(1) of the Medical Care Institution Act provides medical care benefits in violation of Article 1(1) of the Medical Care Institution’s Act, and Article 2(1) of the Medical Care Institution’s Act provides medical care benefits and the scope of the medical care benefits subject to unjust enrichment collection.

[1] Article 57(1) of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016) provides that the amount equivalent to the insurance benefit cost shall be collected in whole or in part from a medical care institution that received the insurance benefit cost by “ackhy or other improper means”. Here, “ackhy or other improper means” does not require the medical care institution to submit or actively conceal false data in order to receive the benefit of health care. It includes both the act of claiming and receiving the benefit of health care under the National Health Insurance Act, the Enforcement Decree of the National Health Insurance Act, and its subordinate regulations.

[2] Article 41(2) of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016; hereinafter the same) and Article 5(1) [Attachment Table 1] subparag. 1(e) and Article 5(2) 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, Sept. 28, 2018); and Article 5(1) [Attachment Table 1] subparag. 1(e) and subparag. 2(2) of the former Rules on the Standards for Medical Care Benefits in the Public Health Insurance Act (amended by Ordinance of the Ministry of Health and Welfare, Sept. 28, 2018; hereinafter the same shall apply) (“general matters” concerning the claim for medical care benefits in the common use of facilities, human resources, equipment, etc. of medical care institutions; and thus, the procedure and requirements for medical care benefits can be provided only in cases where the medical care institution complies with the above regulations and provided medical care benefits.

The purpose of the National Health Insurance Act and the Medical Service Act is to protect and promote national health and health of the people. However, while the National Health Insurance Act provides for the appropriate operation of the national health insurance system, which is the most basic social safety network that the national community provides to the people who are members of the society, and the implementation of medical care benefits necessary therefor, the Medical Service Act provides for medical care, medical institution, and medical care in order to ensure that all the people receive high-quality medical benefits, the legislative purpose and the subject of regulation are different.

Although Article 39(1) of the Medical Service Act provides for the joint use of facilities, etc. of a medical institution and does not delegate relevant matters to the Acts and subordinate statutes under the Medical Service Act, it is based on delegation by the National Health Insurance Act, which is superior laws and subordinate statutes. Whether a specific medical act or method of medical treatment is included in the medical practice permitted under the Medical Service Act and whether it falls under the medical care benefits subject to the National Health Insurance Act is a separate issue. Therefore, even if the above provision on public notice regarding medical care benefits provides for the procedural part not prescribed under the Medical Service Act in relation to the reporting

Ultimately, if a medical care institution provided medical care benefits without complying with the procedure and requirements prescribed in the above notification provision, and received medical care benefits by claiming it, it constitutes an act of claiming and receiving medical care benefits under the National Health Insurance Act, the National Health Insurance Act and its subordinate regulations, which is a cost which cannot be paid as a medical care benefit cost, and constitutes “speed or other improper means” as prescribed by Article 57(1) of

[3] Article 41(2) of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016; hereinafter the same) and Article 5(1) [Attachment Table 1] subparag. 1(e) and Article 5(2) of the former Rules on the Standards for Medical Care Benefits in the National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare, Sept. 28, 2018; hereinafter the same shall apply), “Detailed Matters on the Standards and Method for Medical Care Benefits determined and publicly notified by the Minister of Health and Welfare pursuant to delegation of Article 5(1) [Attachment Table 1] subparag. 1(e) and subparag. 2(2) of the former Rules on the Standards for Medical Care Benefits in the National Health Insurance Act (amended by Ordinance of the Ministry of Health and Welfare, Sept. 24, 2008; hereinafter the same shall apply) provide that “general matters concerning the claim for medical care benefits when jointly using facilities, human resources, etc. of a medical care institution” are subject to be jointly used.

[1] Article 57 (1) of the former National Health Insurance Act (Amended by Act No. 13985, Feb. 3, 2016) / [2] Article 41 (2) (see current Article 41 (3)) of the former National Health Insurance Act (Amended by Act No. 13985, Feb. 3, 2016); Article 5 (1) [Attachment 1] subparagraph 1 (e) and (2) of the former Rules on the Standards for Medical Care Benefits in National Health Insurance (Amended by Ordinance No. 595, Sep. 28, 2018); Article 41 (2) (see current Article 41 (3)); the former Rules on the Standards for Medical Care Benefits in National Health Insurance (Amended by Act No. 13985, Feb. 3, 2016); Article 5 (1) [Attachment 1] subparagraph 1 (e) and (2) 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)

[1] Supreme Court Decision 2019Du52980 Decided June 25, 2020 (Gong2020Ha, 1528) / [2] Supreme Court Decision 2015Du36485 Decided May 30, 2019 (Gong2019Ha, 1310)

Plaintiff (Law Firm Ba, Attorneys Lee In-hwa et al., Counsel for the plaintiff-appellant)

National Health Insurance Corporation

Seoul High Court Decision 2019Nu57024 decided April 29, 2020

Of the judgment below, the part on the collection disposition of the medical care benefit cost related to failure to report and joint use of hospitalization room is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal by the plaintiff is dismissed.

The grounds of appeal are examined.

1. As to whether grounds for unjust enrichment collection exist (ground of appeal Nos. 1 and 4)

A. Article 57(1) of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016; hereinafter “National Health Insurance Act”) provides that the amount equivalent to the cost of insurance benefits shall be collected, in whole or in part, from a medical care institution that has received insurance benefit costs by using the “speeded number or any other unlawful means.” Here, “speeded number or any other improper means” does not require the medical care institution to submit or actively conceal false information to receive the cost of health care benefits, but does not require the medical care institution to submit or actively conceal false information, according to the National Health Insurance Act and its subordinate regulations (see, e.g., Supreme Court Decision 2019Du52980, Jun. 25, 2020).

B. Article 41(2) of the National Health Insurance Act, Article 5(1) [Attachment Table 1] [Attachment Table 1] 1(e), and Article 5(2) of the former Regulations on the Standards for Medical Care Benefits under National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 595, Sept. 28, 2018) provides that the detailed criteria for and methods of the application of Medical Care Benefits determined and publicly notified by the Minister of Health and Welfare pursuant to delegation of Article 5(2) (Notice No. 2008-5, Jan. 24, 2008 of the Ministry of Health and Welfare) shall be Ⅰ. In general, “the matters concerning the claim for medical care benefits when the facilities, human resources, equipment, etc. of medical care institutions are shared” in Article 39(2) of the Medical Service Act and [Attachment 1] of the Regulations on the Standards for Medical Care Benefits under National Health Insurance Act (amended by Ordinance of the Ministry of Health and Welfare No. 595, Sept. 28, 2018) provide that the list and equipment of medical care institutions can be jointly utilized.

The notice provision of this case constitutes a “additional administrative rule binding externally by combining superior laws and regulations as part of the “detailed criteria for applying medical care benefits” established by delegation of superior laws and regulations, and thus, it should be deemed that medical care benefits can be paid only when medical care institutions provided medical care benefits in compliance with the procedures and requirements prescribed in the notice provision of this case.

C. The purpose of the National Health Insurance Act and the Medical Service Act is to protect and promote national health and health of citizens. However, while the National Health Insurance Act provides for the appropriate operation of the national health insurance system, which is the most basic social safety network provided by the national community to citizens who are members of the nation, and the provision of medical care benefits necessary therefor, the Medical Service Act provides for medical personnel, medical institutions, and medical care to ensure that all citizens receive high-quality medical care (see Supreme Court Decision 2015Du36485, May 30, 2019).

Although Article 39(1) of the Medical Service Act provides for the joint use of facilities, etc. of a medical institution and does not delegate relevant matters to the Acts and subordinate statutes under the Medical Service Act, as seen earlier, it is based on the delegation of the National Health Insurance Act, which is the superior laws and subordinate statutes. As such, whether a specific medical act or method of medical treatment is included in the medical practice permitted under the Medical Service Act or whether it falls under the medical care benefit amount under the National Health Insurance Act. Therefore, even if the provision on the public notice, etc. of this case related to medical care benefit costs provides for the procedural part not prescribed under the Medical Service Act in relation to reporting

Ultimately, if a medical care institution provided medical care benefits without complying with the procedures and requirements prescribed in the instant notice provision, and received the medical care benefits by claiming the medical care benefits therefor, it constitutes an act that is paid by claiming it even though it cannot be paid as medical care benefits according to the National Health Insurance Act and its subordinate regulations, and constitutes “a continuous and other unfair means” as prescribed by Article 57(1) of the National Health Insurance Act.

D. In the same purport, the lower court determined that the Plaintiff, who established and operated a rehabilitation medical clinic, did not submit documents confirming that the Plaintiff was a joint-use institution in violation of the procedures and requirements prescribed in the instant public notice provision, and used the hospitalization room of a medical clinic located within the same building and had a physical clinic belonging to the internal medical clinic provide water treatment to the patient of the rehabilitation medical clinic, but the claim for the medical care benefit for the payment of the medical care benefit amount constituted “a continuous and other unfair means,” which is a ground for collecting unjust enrichment under Article 57(1) of the National Health Insurance Act.

The lower court did not err by misapprehending the legal doctrine on the grounds for disposition of unjust enrichment collection under Article 57(1) of the National Health Insurance Act.

2. As to the scope of unjust enrichment collection (ground of appeal Nos. 5 and 6)

A. In full view of the overall purport of the arguments in evidence Nos. 2 and 1 evidence Nos. 2 and 1, the amount collected as medical care benefit costs under the instant disposition is totaling KRW 996,616,970. Of them, KRW 41,827,270 is the amount equivalent to the amount of medical care benefit costs for patients who were hospitalized in the hospital room by the Plaintiff, except for physical care costs (hereinafter “the amount of medical care benefit costs related to failure to report on hospitalization”).

B. Article 2(2) of the instant public notice provides that the sharing of facilities, equipment, and human resources with other medical care institutions in the case of physical treatment shall not be recognized. Therefore, the entire portion of physical treatment expenses shall be deemed to be subject to unjust enrichment as a violation of Article 2(2) of the instant public notice provision.

C. Article 41(1) of the Notice No. 1 of this case provides that “A medical care institution that intends to jointly use facilities, equipment, etc. shall jointly use after submitting documents verifying that the relevant item is a joint-use institution, and medical care benefit costs for the pertinent item shall be claimed by the medical care institution that actually treats the patient.” Article 41(1) of the National Health Insurance Act classify the type of medical care benefit into medical examination and examination, supply of medicine and materials for medical treatment, treatment and surgery, and other treatment, prevention and rehabilitation, hospitalization, nursing, and transfer. As such, the medical care benefit costs for the pertinent item, which is the subject of joint-use in violation of Article 41(1)

In this case, the part jointly used by the Plaintiff in violation of Article 1(1) of the Notice Regulations is a hospitalization room corresponding to the facility and there is no evidence to prove that the Plaintiff shared other facilities, human resources, equipment, etc. outside the hospitalization room (excluding the above part of the physical clinic), and thus, it should be deemed to be subject to unjust enrichment collection only for the portion of “admission fee” which cannot be paid as medical care benefit costs. In addition, the Plaintiff does not have any evidence to deem that the Plaintiff violated the application standards for medical care benefits, such as diagnosis, examination, medicine provision, treatment, nursing, etc., provided by the National Health Insurance Act and its subordinate regulations, except for the fact that the Plaintiff did not file a prior report procedure in order to jointly use the indoor clinic’s hospitalization room. Even if the Plaintiff violated the aforementioned provision, it is merely subject to unjust enrichment collection on the ground of a violation of separate medical care benefit standards

D. Nevertheless, the lower court determined that all of the medical care benefit costs for the patients hospitalized by the Plaintiff in the hospitalization room of the internal medical clinic was subject to the collection of unjust enrichment. In so determining, the lower court erred by misapprehending the legal doctrine on the criteria for the application of medical care benefits and the scope of the collection of unjust enrichment

3. Conclusion

Therefore, among the judgment below, the part of the collection disposition of the medical care benefit cost related to the failure to report the hospitalization room in the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the plaintiff are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)