2014Nu6502 Revocation of the disposition of imposition of penalty surcharge

1. A;

2. B

The Minister of Health and Welfare

Seoul Administrative Court Decision 2012Guhap3231 decided July 24, 2014

November 19, 2014

December 24, 2014

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The imposition of penalty surcharge imposed by the Defendant against the Plaintiffs on January 10, 2012 is revoked. 2. The purport of the appeal is revoked on February 2.

The judgment of the first instance is revoked. All the plaintiffs' claims are dismissed.

1. Details of the disposition;

A. The Plaintiffs are willing to establish and operate the “Dsanbu and Council members” (hereinafter “instant hospital”) in the Si/Manam-si, Sungnam-si C.

B. The Defendant: (a) conducted an on-site investigation of the instant hospital for three days from March 31, 201 to April 2, 201; and (b) imposed the insurer the burden of KRW 13,50,430 of the medical care benefit cost for 11 months from January 31, 2009 to August 2009; (c) from October 201 to December 201, 201; and (d) imposed the insurer a disposition of imposition of the penalty surcharge under Article 85(1)1, (5), and Article 85-2(1); (d) of the former National Health Insurance Act (Amended by Act No. 11141, Dec. 31, 201; hereinafter the same shall apply); and (d) of the former Enforcement Decree of the National Health Insurance Act (amended by Presidential Decree No. 23517, Aug. 31, 2012; hereinafter the same shall apply); and (d) of attached Table 506(17).

C. The calculation details of the unfair amount presented by the Defendant are as follows, and the detailed details of the inspection date of the relevant winner and the person who received the contract are as shown in the annexed sheet 1 of unfair claims.

A person shall be appointed.

A person shall be appointed.

D. The details of the instant disposition are as follows.

A person shall be appointed.

E. Meanwhile, the plaintiffs were investigated by fraud due to the fact that they unduly claimed medical care benefit costs and medical care costs as above (Seoul Central District Prosecutors' Office 2010 type 156), and on June 9, 2010, the constitutional complaint (2010Hun-Ma204) was pending on the recognition criteria of this case, and it was not confirmed that there was no possibility of expectation for the plaintiffs to act. Accordingly, the plaintiffs were ordered to suspend prosecution until the decision of the Constitutional Court on the above constitutional complaint.

[Reasons for Recognition] Gap evidence Nos. 1, Eul evidence Nos. 1, 26, and 27 and the purport of the whole pleadings

A. The plaintiffs' assertion

1) The instant disposition that served as the basis for the instant disposition is in accordance with the detailed guidelines for the application of medical care benefits and the method thereof (amended by the Ministry of Health, Welfare and Family Affairs No. 2007-3 on January 23, 2007, and amended by the Ministry of Health and Welfare No. 201-144 on November 25, 201, the Ministry of Health and Welfare’s notice No. 9 “the instant notice” (hereinafter referred to as “the instant notice”) and the Review and Assessment Review Board (hereinafter referred to as the “Review and Assessment Board”), and the instant notice and guidelines are in accordance with the Ministry of Health and Welfare’s 356 item out of the “treatment and surgery fees, etc.” (hereinafter referred to as “the instant guidelines”), which are the review guidelines of November 27, 2008. The instant notice and guidelines are invalid due to lack of grounds for delegation of the delegated legislation.

In addition, it is not appropriate for the epidemian prosecutor to determine the symptoms of the fact that the method is well reliable, and it is not appropriate to determine the symptoms of the fact that the standard for medical care benefits is less than 120 mH20, which is the standard for medical care benefits, there is no medical basis for the abolition of the standard in the revised announcement on November 25, 2011, and there is no medical basis for all the required-type patients to conduct the epidemological test in order to determine the diagnosis or operation of the fact, and there is no need-type patients around the world, and since the insurance company that sells the insurance products using the fact-finding as an insured event requests the administrative agency to narrow the scope of recognition of the fact-finding, the notice and guidelines of this case are deemed to have been introduced. In light of the above, the notice and guidelines of this case are unlawful since they infringe on the freedom of occupational performance, property rights of doctors like the plaintiffs, right to pursue happiness, right to live a life worthy of human dignity of patients, right to property, right to pursuit of happiness, right

2) The non-existence of grounds for disposition

A) The Plaintiffs conducted a epidemology test for patients who were admitted to the instant hospital, and conducted a epidemology test using artificial tape only for those patients who met the instant public notice and guidelines, and did not manipulate the result of the epidemology test in collusion with suppliers, etc. of the epidemology test equipment. However, in light of the operating principle of the epidemology test equipment that allows inspectors to select a voluntary branch, the test result cannot be found in principle as a matter of principle, and there is no reason to manipulate the test result ex post facto.

Even if some of the results of the inspection were to be corrected, it did not cause any pain to the winners by repeating the epidemiologic test, and later made correction to avoid unfair reductions in accordance with the instant notice and guidelines. Thus, F, an employee of E Co., Ltd. (hereinafter “E”), a company selling the epidemiologic test equipment, made a copy of the processed data in compliance with the instant guidelines and guidelines according to the representative director’s instruction, and covered it over the other processed data, and the Plaintiffs did not know such fact.

B) Even if the list of the winners of the hospital in this case is the same as the list of the winners of the hospital in this case, it cannot be found only by itself that the list of the winners of the hospital in this case is the same as the list of the hospital in this case. In addition, the defendant also considered the whole of the hospital in this case as an unfair claim on the ground that the list is the same as the list among the winners of the hospital in this case, but at least one of them exists as the original list.

3) Claim on the interpretation of Article 85(1)1 of the former National Health Insurance Act

Article 85(1)1 of the former National Health Insurance Act provides that when a medical care institution causes an insurer, a policyholder, or a dependent to bear the costs of health care benefit by deceit or other unjust means, it may order the medical care institution to suspend its business, and Article 85-2 of the same Act provides that a penalty surcharge may be imposed and collected in lieu of the suspension of its business. The administrative law that forms the basis of such indicative administrative disposition should be strictly interpreted. If a medical care institution receives the costs of health care benefit from a policyholder or dependent by deceit or other unjust means, the Corporation shall collect it from the medical care institution concerned and immediately pay it to the policyholder or dependent, and compared with the language of Article 52(4) of the former National Health Insurance Act, the medical care institution must bear the costs of health care benefit from the insurer and the insured in order for the medical care institution to apply Article 85(1)1 of the former National Health Insurance Act. In light of the fact that the Plaintiffs did not charge the costs of health care benefit to the insured, the Plaintiffs cannot be deemed to bear both the costs of health care benefit and the insurer.

4) The assertion of deviation and abuse of discretionary power

The relevant provisions, which serve as the basis for the instant disposition, stipulate the severity of sanctions on the basis of both the monthly average amount of medical care benefit costs claimed by deception and other unlawful means, and the ratio compared to the total amount of the claim for benefits during the investigation period. However, if medical care benefit costs erroneously appropriated as the Plaintiffs alleged as above are excluded, the Defendant’s wrongful claim amount and its ratio based on the exercise of discretionary power at the time of the instant disposition are completely different, and the instant disposition should be revoked

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) Determination as to the assertion of invalidation of the public notice and guidelines, which served as the basis for the instant disposition

A) We examine whether the instant public notice and guidelines deviates from the bounds of delegation. The Review and Assessment Service was established to examine medical care benefit costs and assess the appropriateness of medical care benefits pursuant to Article 55 of the former National Health Insurance Act. Under Article 56(1)1 through 3 of the same Act, the Review and Assessment Service takes charge of the review of medical care benefit costs, the assessment of the appropriateness of medical care benefits, and the development of evaluation standards, and Article 56(2) of the same Act provides for matters necessary for the standards, procedures, methods, and other procedures for assessing the appropriateness of medical care benefits. Meanwhile, Article 43(8) of the former National Health Insurance Act provides that matters necessary for the methods and procedures of claiming, examining, paying, etc. medical care benefit costs shall be prescribed by Ordinance of the Ministry of Health and Welfare pursuant to Article 50 of the former Enforcement Rule of the National Health Insurance Act (amended by Ordinance of the Ministry of Health and Welfare No. 19, Mar. 19, 201; hereinafter the same).

B) As to whether the instant notice and guidelines infringe on the doctor’s freedom of occupation, property rights, the right to pursue happiness or the patient’s right to live a decent life, the right to health, property rights, and the right

1) The right to pursue happiness is to prevent danger and injury to national health and to grant maximum health insurance benefits to the people with limited financial resources through the appropriate operation of medical care benefits. ② The epidemiology test required by the instant public announcement is more cost than other necessary diagnosis methods, and it is closely related to the health insurance finance, so there is a need for objective and accurate basis in determining whether medical treatment is necessary. The epidemiology test is the only method to confirm that the patient's price is tension, and its degree is an objective value by mechanical devices, and thus, it is difficult for the medical doctor to obtain more objective and objective results than other methods in determining whether it is necessary to perform the 10th occupational health care benefit (see, e.g., Supreme Court Decision 200Hun-Ga106, Nov. 2, 2006).

2) Determination as to the non-existence of grounds for disposition

A) The following circumstances, which can be revealed by comprehensively considering the overall purport of each description and pleading of the evidence Nos. 2 through 6, 8 through 12, 15, 17 through 21, 23 through 29 (including each number; hereinafter the same shall apply) in the attached table Nos. 3, 5 through 12, 15, 17 through 21, and 23 through 29 (including each number; hereinafter the same shall apply) among the attached table Nos. 1, such as ① The epidemaology prosecutor generally reveals the physiological and pathological function of the patient’s mine protection, such as by injecting the patient’s bomthical and pathological function, and by confirming whether the urine is new, or by measuring the pressure between the patient, and even if the patient is the same as the result of the inspection, the examination is also conducted by a prosecutor.

In general, it is reasonable to differently from each Si to 20 hospitals including the instant hospital from March 206 to September 2010. However, it is reasonable to 100 to 20 hospitals including the instant hospital, and to 20 hospitals from March 2006 to 20 hospitals, to see that the examination results of the instant hospital are identical or similar to those of other hospitals or the examination results of the instant hospital; 3. The examination results of other hospitals, which are identical or similar to the examination results, the examination results of the instant hospital or other patient at other hospitals, or the examination results of the instant hospital, are identical; 4. From March 2006 to 20 hospitals including the instant hospital, it is reasonable to 20 hospitals from time to time to time to time to time to time to visit the hospital, to provide follow-up management services and services for the field of disease examination; 5. The Plaintiffs are also unable to be found to have operated the results of the instant examination by their respective request to the effect that the examination results of the instant hospital or the instant hospital were inappropriate.

Furthermore, sanctions against violation of administrative laws are sanctions against the objective fact of violation of administrative laws in order to achieve administrative purposes, and thus, they may be imposed even if there is no intention or negligence on the part of the violator, unless there is a justifiable reason that does not cause any negligence on the part of the violator (see, e.g., Supreme Court Decision 2002517, Sept. 2, 2003). Therefore, it cannot be said that there is a justifiable reason for the plaintiffs to neglect the duty to manage and supervise the employees and facilities of the hospital of this case in order to prevent the correction of the inspection results as above.

Ultimately, the plaintiffs' assertion on this part is without merit.

B) Parts relating to each person in the sequence 1, 7, 13, and 14 in Attached Table 1

An appeal suit seeking the revocation of an administrative disposition has the burden of proving the legitimacy of the disposition (see, e.g., Supreme Court Decisions 84Nu124 delivered on Jul. 24, 1984; 2006Du12937 delivered on Jan. 12, 2007). Under the following circumstances, the facts as seen earlier and the purport of the entire pleadings can be comprehensively taken into account: (i) according to the methods asserted by the Defendant’s assertion, one of the students with the same ex-post type can not be ruled out the possibility of being the original, not the outcome of the examination; (ii) in light of the fact that the inspector’s examination of the ex-poste of the hospital was found to be more than the inspection date for other patients consistent with the same or corresponding parts as indicated in attached Table 1; and (iii) in light of the fact that the Defendant’s aforementioned facts and the contents of evidence stated in No. 2006Du12937 delivered on Jan. 12, 2007, 2000.

3) Determination on the assertion on the interpretation of Article 85(1)1 of the former National Health Insurance Act

In principle, when a medical care institution violates the criteria and procedures prescribed in the Act on the Calculation Standards of Medical Care Benefit Costs from an insurer, a policyholder, etc. or receives medical care benefit costs from an insured person, etc. in excess of those prescribed in the above criteria, it constitutes a violation of Article 52 (1) and (4) and Article 85 (1) 1 and (2) of the former National Health Insurance Act. (see Supreme Court Decision 2011Du7618, Aug. 30, 201). Since the Plaintiffs charged the insurer with expenses as if they were eligible for medical care benefits by manipulating or manipulating the results of a fieldology test, it is reasonable to view that the Plaintiffs’ above act constitutes an insurer and his/her dependent who is liable for medical care benefit costs from the insured person and its dependent, it constitutes a violation of the above criteria, and thus, constitutes a violation of Article 85 (1) 1 and Article 85 (1) 1 and (2) of the former National Health Insurance Act. Therefore, it is difficult to view that the Plaintiffs’ assertion that they were responsible for medical care benefits from the insurer and its operation would be applied only to the Defendant.

4) Determination on the assertion of deviation or abuse of discretionary power

Article 85(1)1 and (5) of the former Enforcement Decree of the National Health Insurance Act (hereinafter referred to as the "Guidelines for Disposition") provides that an order for suspension of business and imposition of penalty surcharges under Article 61(1) and (5) of the former Enforcement Decree of the National Health Insurance Act (hereinafter referred to as the "Enforcement Decree of the National Health Insurance Act") shall be issued. However, if the amount of penalty surcharges is deemed to exceed the scope of discretionary discretion in accordance with the disposition of this case, if the amount of penalty surcharges exceeds the scope of discretionary discretion in accordance with the disposition of this case is deemed not to exceed the scope of discretionary discretion in light of the content and purport of delegation of delegation of the parent law, the principle of prohibition of excessive restriction under the Constitution, and the principle of equality, etc.

However, as seen earlier, the part of the disposition of this case concerning the persons who received the orders as stated in 1, 7, 13, and 14 in the annexed Table 1 among the dispositions of this case is unlawful. The part concerning the persons who received the orders of this case is also unlawful. Since the amount of penalty surcharge is calculated in accordance with the disposition standards, including the total amount of the unfair amount, average monthly amount, and basic data for the calculation of the unfair ratio, the amount of penalty surcharge determined in the disposition of this case shall be deemed to be unlawful since it exceeds the amount of penalty surcharge calculated in accordance with the disposition standards clearly by excluding the part concerning the persons who received the orders of this case, the total amount of the unfair amount, average monthly amount, and the amount of penalty surcharge determined in the disposition of this case, excluding the part concerning the persons who received the orders,

3. Conclusion

Therefore, the plaintiffs' claims of this case are accepted in its entirety on the grounds of its reasoning, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.

The presiding judge, judge and assistant

Judges fixed-type

Judge Lee Young-young

1) In this respect, according to the statements of F and related persons, F is in line with the recognition criteria to show at the request of the plaintiffs.

the result of the inspection reveals that the file was stored in the USB and printed out at will the patient's name, date, time, etc., and fabricated the result of the inspection.

In the text, the result of the examination is the result of the examination before the date, and it is difficult to regard it as the true result conducted at the hospital of this case.

The defendant's assertion is not accepted.