Where a person who is qualified and licensed as a medical person establishes a medical institution in accordance with the Medical Service Act, and provided health insurance policyholders or their dependents with health care benefit prescribed in the National Health Insurance Act, and received health care benefit from the National Health Insurance Corporation, whether fraud constitutes a crime of fraud committed by the National Health Insurance Corporation as a victim, in cases where such medical institution is established and operated in the name of another medical person (negative in principle)

Although Article 4(2) of the Medical Service Act restricts a medical doctor, dentist, oriental medical doctor, or midwife (hereinafter “medical person”) from establishing or operating a medical institution under the name of another medical person, it cannot be deemed that there exists an essential difference between the case where a medical institution was established by a medical person permitted to establish a medical institution in violation of this provision. Furthermore, barring any other circumstance, such as where medical personnel established and operated a medical institution under the name of another medical person does not meet the medical care benefits standards prescribed in the National Health Insurance Act, it is difficult to readily conclude that there exists an essential difference between the medical care benefits provided by a normal medical institution and the medical care benefits provided by a medical person, barring any other circumstance, such as where medical personnel established and operated a medical institution in violation of Article 3(2). Unlike the case where a general public who is not qualified as a medical person establishes a medical institution in violation of Article 4(2), it appears that the Medical Service Act did not provide

Therefore, if a person who has a qualification and license as a medical personnel establishes a medical institution pursuant to the Medical Service Act and provides health insurance policyholders or their dependents with health care benefit under the National Health Insurance Act, and receives the health care benefit from the National Health Insurance Corporation, even if such medical institution violates Article 4(2) of the Medical Service Act by establishing and operating another medical institution in the name of another medical personnel, it does not in itself exclude the medical care institution from which the health care benefit is entitled to claim under the National Health Insurance Act, and thus, it constitutes a crime of fraud with the National Health Insurance Corporation as a victim

Article 347 of the Criminal Act; Articles 1, 4(2), and 33(2) of the Medical Service Act; Articles 1, 41(1), 42(1), 44(1), and 47(1) of the National Health Insurance Act

Supreme Court Decision 2017Do17699 Decided April 10, 2018 (Gong2018Sang, 926)

Defendant 1 and two others

Prosecutor

Attorneys Nam Jae-chul et al.

Seoul Northern District Court Decision 2018No1636 decided January 18, 2019

All appeals are dismissed.

The grounds of appeal are examined.

1. A. The National Health Insurance Act was enacted for the purpose of contributing to the improvement of national health and the promotion of social security by providing citizens with insurance benefits for the prevention, diagnosis, and rehabilitation of diseases and injury, for childbirth and death, and for the improvement of health (Article 1). The National Health Insurance Act stipulates that only a medical institution established under the Medical Service Act is incorporated into a health insurance system into a health insurance system, and that the medical care institution provides health care benefit for the disease, etc. of the insured and their dependents (Article 41(1) and Article 42(1)); and that the health care institution directly claims for “health care benefit costs” against the National Health Insurance Corporation (Articles 44(1) and 47(1).

In addition, the Medical Service Act was enacted for the purpose of protecting and improving the health of the people by providing for matters necessary for the public’s medical treatment so that all citizens can benefit from high-quality medical treatment (Article 1); and, on the other hand, only a doctor, dentist, oriental medical doctor, or midwife (hereinafter “medical person”), etc. may establish a medical institution (Article 33(2)1); while medical personnel are prohibited from establishing or operating a medical institution under the name of another medical person (Article 4(2)), unlike violations of Article 33(2), there is no separate penal provision in the case of violation of Article 4(2).

B. Although Article 4(2) of the Medical Service Act limits the act of a medical person to establish or operate a medical institution under the name of another medical person, it cannot be deemed that there exists an essential difference between the case where a medical person established and operated a medical institution in violation of this provision is established by a medical person permitted to establish a medical institution. Moreover, barring any other circumstance, such as where medical care benefits provided by a medical person in the name of another medical person do not meet the standards for medical care benefits prescribed in the National Health Insurance Act, it is difficult to readily conclude that there exists an essential difference between medical care benefits provided by a normal medical institution and health care benefits provided by a medical person. Unlike the case where a general public without the qualification of a medical person established a medical institution in violation of Article 3(2) violates Article 4(2), the Medical Service Act does not provide a separate penal provision against a person employed by a medical person

Therefore, if a person qualified and licensed as a medical person establishes a medical institution pursuant to the Medical Service Act and receives medical care benefits from the National Health Insurance Corporation by providing health insurance policyholders or their dependents with medical care benefits under the National Health Insurance Act, even if such medical institution violates Article 4(2) of the Medical Service Act due to its establishment and operation in the name of another medical person, it does not in itself exclude the medical care institution that can claim medical care benefits under the National Health Insurance Act from the medical care institution that is entitled to claim medical care benefits. Thus, it cannot be said that the crime of fraud is committed against the National Health Insurance

2. On the grounds indicated in its reasoning, the lower court upheld the first instance judgment that acquitted the Defendant on the ground that there was no proof of crime regarding the fraud among the facts charged in the instant case.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records as seen earlier, the lower court did not err by misapprehending the legal doctrine on the establishment of fraud, contrary to what is alleged in the grounds of appeal.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)