(영문) 대법원 2017.9.12.선고 2015두2765 판결

1. In principle, the burden of proof in an administrative litigation that is applied mutatis mutandis under the provisions of the Civil Procedure Act is allocated among the parties in accordance with the general principles of civil procedure. In the case of an appeal litigation, the Defendant bears the burden of proving the lawfulness of the disposition based on its nature. In a case where the Defendant proves a reasonable and acceptable reply with respect to the grounds for disposition that support the legality of disposition, the assertion and proof of exceptional circumstances must return to the Plaintiff, who is the other party (see, e.g., Supreme Court en banc Decision 2010Du27639, Jun. 18, 2012; 2016Du42817, Jun. 18, 2012).

2. A. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

① According to the former detailed criteria for applying medical care benefits and methods thereof (amended by Presidential Decree No. 2007-3, Jan. 23, 2007); “Standards for recognition of necessary gold surgery using artificial tapes (hereinafter “Standards for recognition of benefits in this case”) among those cases where the health and welfare was amended by Presidential Decree No. 2007-3, Jan. 23, 2007; and thereafter, the Ministry of Health and Welfare’s notice No. 201-144, Jan. 25, 201), in order to apply national health insurance with respect to necessary gold alcohol, the pressure of leakage in the epidemology test shall be measured to be below 120ccH2O

(2) The epidemology test is conducted in such a way as to confirm whether urines have leaked in various circumstances, such as artificially influencing physiological trees in the light of ordinary patients, and allowing them to influorrate or to force times, and measure their net pressure. considering the characteristics of the process of the test, the number of urpology and the test result as shown in the result of the test are ordinarily different for each prosecutor.

③ D Services Co., Ltd. is an enterprise selling crypology test machinery, cypology test machinery, cypology surgery materials, and crypology surgery materials, imported from abroad to the industrymen and clinics in the region. E, as an employee of the above company, performed the business of installing machinery and explaining the method of using the machinery to the industrymen and clinics who purchased the crypology test machinery from the above company. He explained the method of using the machinery in an opportunity to explain the method of using the machinery.

④ If the result of the epidemology test conducted on a patient subject to the epidemian surgery does not meet the instant wage recognition criteria, but if the use of the inspection machines is performed by the method of distribution from E, it was requested to E to operate the inspection results.

5) E이 사용한 검사결과 조작방법은 대략 3가지였는데, 첫째는 이 사건 급여인 정기준을 충족한 다른 환자의 기존 검사결사를 불러와 환자의 이름과 검사일자를 수술 대상 환자의 것으로 변경입력하거나 기존 검사결과를 복사하여 수술대상 환자의 것에 덮어쓰는 방법(이하 '첫째 방법'이라고 한다)이고, 둘째는 리무브(remove) 기능을 이용하여 그래프의 바(bar)를 임의로 조작하는 방법(이하 '둘째 방법'이라고 한다)이며, 셋째는 방광내압과 복압이 음압으로 측정되는 경우에 셋(set) 버튼을 계속 눌러 음압이 0(春)으로 보정되도록 조작하는 방법이다. E은 수술대상 환자의 그래프 파형 자체가 불량인 경우에는 첫째 방법을 사용하였고, 그래프 파형 자체는 양호하지만 검사수치가 120cmH2O 이상인 경우에는 둘째 방법으로 측정수치만 일부 변조하였으며, 이들 방법을 혼용하기도 하였다. 6 첫째 방법으로 조작한 수술대상 환자의 검사결과는 다른 환자의 기존 검사결과를 복사하여 붙인 것이어서 그래프 파형 및 검사 수치가 같게 되며, 첫째 방법에 둘째 방법을 혼용한 경우 그래프 파형과 검사 수치에 일부 차이가 발생할 수 있다. 첫째 방법을 사용하여 검사결과를 조작하려면 이 사건 급여인정기준을 충족한 다른 환자의 기존 검사결과(속칭 '샘플'이라고 한다)를 가지고 있어야 하는데, E은 의사, 간호사들에게 검사기계 조작방법을 설명하여 주기 위한 검사결과와 검사기계 제조업체에서 기본으로 제공하는 검사결과 등을 USB메모리에 저장하여 가지고 다니면서 검사결과 조작에 사용하였다.

7) In a case where a crypology test is conducted by each mountain father and council member, the test result is automatically stored on the inspection machine concerned, but where E operates the test result, it is stored by cover only the operational test result, and the previous test result was automatically deleted. By early 2008, E was stored in the inspection machine purchased by each mountain father and council member so that it can be used for the operation of the test result. At the request of each mountain father and council member, the test result which was carried out by storing and holding in the Pyeongtaek USB camera, was less used, and other test results stored in the inspection machine by the relevant mountain father and council member were used for those purposes.

③ From February 1, 2007 to November 30, 2009, the result of the crypology test on a total of 32 cases of 34 cases of crypology conducted by the Plaintiff from 'C mountain fathers and Council members' to 'members', the result of the crypology test on a total of 34 cases of cypology is either equal to or equal to the result of other patients' test and the cypology

On April 8, 2011, the Defendant rendered a 40-day business suspension disposition against the Plaintiff on the ground that the Plaintiff had received a total of KRW 32,720,250 for the above 32 cases, including the Plaintiff’s unreasonable claim for medical care benefit costs of KRW 29,102,70 for the medical care benefit costs.

B. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant’s grounds for disposition related to the claim for expenses incurred in performing the surgery are reasonably acceptable in the following respect, and it can be deemed that the allegations and proof contrary to the above are returned to the Plaintiff, the other party, as the Plaintiff.

(1) Where, among the results of the epidemology test, the numerical value of which is identical or substantial, the date of the test is the original which is not fabricated, and the date of the test is at the latest likely to be fabricated using data of the original, the third original sample must be guaranteed that the possibility of being used for the operation of the test is almost little.

② However, at the request of each mountain father and a National Assembly member, E used the results of the inspection that were stored and carried in the flat USB joints when manipulating the results of the inspection. By the beginning of 2008, E stored basic sampling in inspection machinery with each mountain father and a National Assembly member.

(3) The 13 cases where the court below judged that it is probable to be a true test result shall be the same as the patients who have undergone the test and operation at other hospitals, and the marp type and test result.

40 Accordingly, in a case where the numerical value of the explosion and the result of the explosion test coincides with the same or considerable part of the result, the result of the test is more likely to be distorted by the use of the original 3th (existing sampling) rather than the possibility that the pre-determination is true.

⑤ While recognizing the fact that the Plaintiff and E had conducted an unfair claim by manipulating the outcome of the examination at any time, the genuine result of the examination did not be deleted or discarded at the same time as the operation, and there is no specific knowledge of what kind of 13 items were the manipulation at the time of the disposition in this case. On the other hand, the Defendant, despite the possibility that the result of the examination was operated by any other method than the above first method, only the case, among the result of the epidemology examination, appears to have used the first method because the ex-postmp and the test value were identical or corresponding to the same or considerable part, was considered as the object of the disposition in this case. Nevertheless, the lower court determined that the part relating to such 13 items among the disposition in this case was unlawful on the ground that there is a probability that the ex-postm and the test value coincide with the same or considerable part of the result of the examination. In so doing, the lower court erred by misapprehending the legal doctrine on the burden of proof of the reason for disposition, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.