Plaintiff (Law Firm Clos, Attorneys Tokenn et al., Counsel for the plaintiff-appellant)

National Health Insurance Corporation and one other (Attorney Su-young et al.)

June 20, 2019

1. All of the plaintiff's claims are dismissed.

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

The disposition taken to recover medical care benefit costs against the plaintiff on December 16, 2016 by the defendant National Health Insurance Corporation, the disposition taken to suspend the operation of the medical care benefit institution on March 28, 2018 against the plaintiff by the Minister of Health and Welfare, and the disposition taken to suspend operation of the medical care institution on May 8, 2018 are revoked.

1. Details of the disposition;

A. The Plaintiff established and operated the “△△△△△△△△” (before changing the name, “△△△△△△△” before changing the name, and “instant member” (hereinafter “instant member”).

B. On February 18, 2016, the Defendant Minister of Health and Welfare (hereinafter “Defendant Minister”) specified the period subject to investigation as “from December 12, 2012 to February 2013, and from September 2015 to November 2015” and conducted on-site investigations on matters concerning the medical benefits and medical benefits of the instant Council members.”

C. On December 16, 2016, Defendant National Health Insurance Corporation (hereinafter “Defendant Corporation”) issued a disposition to recover medical care benefit costs of KRW 170,605,380 based on Article 57(1) of the National Health Insurance Act (hereinafter “instant restitution disposition”) to the Plaintiff on the following grounds.

In accordance with the criteria for recognition of installation under Article 38(1) of the Medical Service Act and Article 3 of the Regulations on the Establishment and Operation of Special Medical Equipment (hereinafter “Rules on Special Medical Equipment”) included in the main text, a non-exclusive medical specialist of the film department shall be assigned to the operation personnel of computerized group shooting devices and wired-out shooting devices. The medical specialist of the film department shall administer the overall control and supervision of the quality control of medical equipment of special medical care devices, assess filmication, and conduct the clinical image reading service. However, in the case of Non-Party 1 of the film medical specialist, the medical specialist of the film department shall be subject to reporting from March 1, 2013 to Nov. 30, 2015 to Nov. 15, 2013; and Non-Party 3, Non-Party 4, a general medical care institution shall not perform the duties, such as monitoring the quality control of medical care devices by means of computerization or supervision of the personnel at non-exclusive medical care devices, etc.

D. On March 28, 2018, the Defendant Minister suspended the business of a medical care institution for 73 days based on Article 98(1)1 of the National Health Insurance Act (hereinafter “instant medical care institution’s business suspension”). On May 8, 2018, the Plaintiff received the payment of KRW 10,461,40 as medical care expenses for Sigs in the same manner as the grounds for the instant recovery disposition.” The Defendant Minister suspended the business of a medical care institution for 64 days based on Article 28(1)1 of the Medical Care Assistance Act (hereinafter “instant medical care institution’s business suspension”). In addition to the instant medical care institution’s business suspension, each of the instant medical care institution’s business suspension and the instant restitution of the instant disposition were subject to each of the instant dispositions.

E. Calculation of the period of each of the instant dispositions of suspension of business is as listed below [Attachment 1].

[Attachment 1] Table 1 6,371,80,810,810,810,719,750 won (377,624,720 won) 10,489,575 won in the instant medical care institution’s disposition 5.92% 73, 73, 10,461,40 won in the instant medical care institution’s disposition disposition 84,505,090 won in the instant medical care institution’s disposition of business suspension 84,505,090 won in the period subject to investigation of disposition 84,505,090 won in the instant medical care institution’s disposition 10,461,40 won in the amount of 290,594 won in the aggregate amount of unfair monthly average (the total amount subject to mitigation) for the period subject to disposition.

F. Meanwhile, on December 22, 2016, the Plaintiff filed an objection against the instant recovery disposition with the Health Insurance Objection Committee, but was dismissed on January 19, 2017, and filed a petition with the Health Insurance Dispute Mediation Committee for adjudication seeking revocation of the instant recovery disposition, but was dismissed on July 27, 2018. In addition, on June 12, 2018, the Plaintiff filed a petition with the Central Administrative Appeals Commission for revocation of each of the instant dispositions of suspension of business with Defendant Minister as the respondent, but was adjudicated to dismiss the petition on December 18, 2018.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 3, 19, Eul evidence 1 and 3 (including branch numbers), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Common assertion in each disposition of the instant case

가) 원고는 비전속 영상의학과 전문의와 이 사건 의원의 전산화단층 촬영장치와 유방 촬영용 장치에 대하여 비전속으로 “특수의료장비의 의료영상 품질관리 업무의 총괄 및 감독, 영상화질 평가, 임상영상 판독”을 하기로 하는 계약을 체결하였고, 판독료 외에 특수의료장비의 의료영상 품질관리 업무의 총괄 및 감독과 영상화질 평가의 대가를 별도로 지급하였다. 원고와 계약한 비전속 영상의학과 전문의는 이 사건 의원의 전산화단층 촬영장치와 유방 촬영용 장치에 대하여 3개월마다 임상영상 평가를 하고, 6개월마다 표준팬텀을 이용한 시험결과에 대해 평가하는 등 ‘방사선사가 수행하는 전산화단층 촬영장치와 유방 촬영용 장치에 대한 품질관리 업무’ 제외한 특수의료장비의 의료영상 품질관리 업무의 총괄 및 감독과 영상화질 평가 업무를 하였다. 비전속 영상의학과 전문의가 위와 같은 업무를 함에 있어 반드시 이 사건 의원을 방문할 필요가 있는 것은 아니다. 따라서 원고가 전산화단층 촬영장치와 유방 촬영용 장치의 운용인력 기준을 위반하였다고 볼 수 없다.

B) Since the medical specialists in non-exclusive film and video processing who entered into a contract with the Plaintiff did not perform all relevant duties despite the lack of overall control and supervision over the control of the medical image management of the special medical equipment as they did not visit the instant member, it cannot be deemed that the entire costs of medical care benefits or medical benefits related to the computer-based photographing device and the system for video recording is an unfair claim.

2) Claim as to each of the instant dispositions of business suspension

The Plaintiff was subject to each of the instant dispositions on business suspension on the grounds that the Operational Guidelines for the Rules on the Installation and Operation of Special Medical Equipment provides that medical specialists in the non-exclusive image department shall work at least once a week, and the above guidelines are not external binding. Considering the medical personnel, the number of patients, the number of beds, and the special medical equipment possessed by the instant Council members, each of the instant dispositions on business suspension is erroneous in the misapprehension of discretionary power.

B. Relevant statutes

[Attachment] The entry of the relevant statutes is as follows.

(c) Fact of recognition;

1) The special medical equipment used by the instant council member is as indicated below [Attachment 2] (hereinafter “the computerized body photographing device of the instant council member”), and the system for the recording of the instant council member is “the device for the recording of the computer floor of the instant council member,” and each of the special medical equipment of the instant council members is “the device for the recording of the instant council member,” and “each of the special medical equipment of the instant case,” in accordance with the Rules on Special Medical Equipment, the Plaintiff appointed Nonparty 2, who works for the instant council member, as the manager of each of the special medical equipment of the instant council members in 2012, and from 2013 to 2015, appointed Nonparty 5, who works for the instant council member, as the manager.

Table 2 WCT-440-140 U.S. GE 00028653CN9 October 2010, 2010, LIGHTR SPE SPE-35-PR-18 May 2018, 2012

2) On December 20, 2010, the Plaintiff and Nonparty 1: (a) registered Nonparty 1 as a non-exclusive image medical specialist of each of the special medical equipment of this case; and (b) Nonparty 1 read the images taken by each of the special medical equipment of this case; and (c) entered into a contract with the Plaintiff to pay the reading cost according to the number of 50,000 won per month. Nonparty 1, from December 20, 2010 to February 28, 2013, read and received remuneration by transmitting the images taken by using the remote transmission program of this case without visiting the instant member.

3) On February 22, 2013, the Plaintiff and Nonparty 6 (the name of the Plaintiff and Nonparty 6’s non-party 6’s branch office: the Plaintiff reads the images taken with each of the special medical equipment of the instant case that the Plaintiff requested the reading, and the Plaintiff entered into a contract with Nonparty 6 to pay the Plaintiff the reading cost in accordance with the number of 80,000 won and the readings per month. According to the above contract, Nonparty 3, a medical specialist of the said medical research institute for the film shooting devices of the instant case, and Nonparty 4, a medical specialist of the said medical research institute for the film shooting devices of the instant case, was registered in the non-exclusive speed. From March 1, 2013 to November 30, 2015, Nonparty 3 and Nonparty 4 did not visit the instant Council member from March 1, 2013 to November 30, 2015 through the remote transmission program of the instant case.

4) From 2011 to 2015, the Plaintiff was subject to a document inspection and close inspection under the Regulations on Special Medical Equipment for each of the instant special medical equipment by the Korea Medical Video Quality Management Agency, a foundation every year.

5) 이 사건 의원에서 2012. 10.부터 2015. 12.까지 이 사건 전산화단층 촬영장치에 관하여 작성한 ‘정도관리점검표’에는 소외 1(2013. 3.까지), 소외 3(2013. 4.부터)이 평가자로서, 소외 5가 점검자 및 관리자(2013. 1.부터)로서, 소외 2가 관리자(2012. 12.까지)로서 약 3개월에 한 번씩 임상영상평가에, 약 6개월에 한 번씩 표준팬텀을 이용한 시험에 참여한 것으로 기재되어 있고, 해당란에 각 서명이 기재되어 있다. 이 사건 의원에서 2012. 10.부터 2015. 11.까지 이 사건 전산화단층 촬영장치에 관하여 작성한 ‘임상영상평가표’에는 소외 1(2012. 10.까지), 소외 3(2013. 3.부터)이 각 평가자로서 약 3개월에 한 번씩 임상영상평가를 시행한 것으로 기재되어 있고, 해당란에 각 서명이 기재되어 있다.

또한 이 사건 의원에서 2013. 6.부터 2015. 4.까지 이 사건 유방 촬영용 장치에 관하여 작성한 ‘정도관리점검표’에는 소외 4가 평가자로서, 소외 5가 점검자 및 관리자로서 약 3개월에 한 번씩 임상영상평가에, 약 6개월에 한 번씩 표준팬텀을 이용한 시험에 참여한 것으로 기재되어 있고, 해당란에 소외 4의 인장이 찍혀있고, 소외 5의 서명이 기재되어 있다. 이 사건 의원에서 2012. 10.부터 2015. 11.까지, 이 사건 유방 촬영용 장치에 관하여 작성한 ‘임상영상평가표’에는 소외 1(2013. 1.까지), 소외 4(2013. 2.부터)가 각 평가자로서 약 3개월에 한 번씩 임상영상평가를 시행한 것으로 기재되어 있고, 해당란에 소외 1의 서명이 기재되어 있고, 소외 4의 인장이 찍혀있다.

6) Around February 7, 2019, the Defendant Minister requested the Korea Cinematographic Medical Association to consider whether a medical specialist in the non-exclusive image department needs to visit a medical institution for “the duties of overall control and supervision of the duties of control and supervision of the control and supervision of the management and supervision of medical image of special medical equipment.” On February 19, 2019, the Korea Cinematographic Medical Association sent a written opinion that affirms the necessity of the above visit to the Defendant. The main contents of the written opinion are as follows.

1. In the event that the film recording system of the ○○○ level of radioactive rays is not well known to the relevant hospital, it is necessary for a medical specialist to visit and manage the relevant hospital in order to properly understand the special medical equipment of the hospital. It is also necessary for the medical specialist to grasp the characteristics of the special medical equipment and to instruct and supervise the matters regarding the film recording system. The examination of documents in accordance with the ○○ Rules on Special Medical Equipment, and the control of the quality of the radioactive images by passing the system is not sufficiently complicated. 2. The ○○○ level of radioactive rays to be exposed to the epiculation of the epiculation of the epiculation of the epiculation of the epiculation of the epiculation of the epiculation of the epiculation of the epic of the epiculation of the epic of the epiculation of the epiculation of the epic of the epiculation of the epic.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 4, 5, 9 through 18, 21, Eul evidence Nos. 1, 2, Eul evidence Nos. 2 and the purport of the whole pleadings

(d) Whether the standards for human resources for the operation of a Computerization team recording device and a wired-out photographing device have been violated;

1) Relevant provisions and legal principles

가) 의료법 제38조 제1항 은 ‘의료기관은 보건의료 시책 상 적정한 설치와 활용이 필요하여 피고 장관이 정하여 고시하는 의료장비를 설치·운영하려면 보건복지부령으로 정하는 바에 따라 시장·군수·구청장에게 등록하여야 하며, 보건복지부령으로 정하는 설치인정기준에 맞게 설치·운영하여야 한다’고 규정하고 있다. 그 위임에 따른 특수의료장비규칙 제3조 제1항 , [별표 1]은 ‘전산화단층 촬영장치(용도: 전신용, 두부 전용, 척추 전용, 두부 및 척추 전용)와 유방 촬영용 장치의 운용인력 기준으로 영상의학과 전문의 비전속 1명 이상’을 규정하고 있고, 제3조 제2항 은 ‘영상의학과 전문의는 특수의료장비의 의료영상 품질관리 업무의 총괄 및 감독, 영상화질 평가, 임상영상 판독의 업무를 수행하고( 제1호 ), 방사선사는 특수의료장비의 취급, 정도관리항목 실행, 그 밖의 품질관리에 관한 업무를 수행한다( 제2호 )’고 규정하고 있다. 특수의료장비규칙 제8조 제2항 , [별표 5]는 전산화단층 촬영장치(PACS)에 관한 정도관리항목으로 데이터 저장장치 작동점검, 조영제 주입기 작동점검, 응급환자 구조용 시스템 점검, 응급 중단 스위치 작동점검, 관전압 시험, 관전류 시험, 표준팬텀을 이용한 시험, 위치확인영상의 정확도 점검, 영상에서의 측정치와 실측정치의 비교평가, 환자피폭선량피폭시험 등을 규정하고 있고, 유방 촬영용 장치(CR)에 관한 정도관리항목으로 Image plate sensitivity test, 유방압박장치 점검, CR reader check, 표준팬텀을 이용한 시험, 평균유선선량 측정 등을 규정하고 있다.

나) 의료법 제38조 제1항 , 특수의료장비규칙 제3조 제1항 , 제2항 , [별표 1]은 전산화단층 촬영장치와 유방 촬영용 장치의 적절한 설치 및 활용을 통해 국민의 건강을 보호하고 관련 진료의 적정성을 담보하기 위하여, 방사선사나 전산화단층 촬영장치와 유방 촬영용 장치 자체의 전문가와는 별도로, 해당 진료과목의 전문가인 영상의학과 전문의로 하여금 전산화단층 촬영장치와 유방 촬영용 장치를 전반적으로 관리하면서 그 장치 활용의 적정성 등을 도모하게 하려는 취지라고 해석된다. 이러한 취지와 함께 특수의료장비규칙 제8조 제2항 , [별표 5]에 따르면 특수의료장비 관리자는 정도관리항목에 따른 관리 등을 하는데, 전산화단층 촬영장치(PACS)의 경우에 조영제 주입기 작동 점검, 관전압 시험, 관전류 시험 등의, 유방 촬영용 장치(CR)의 경우 표준팬텀을 이용한 시험 등의 각 의사가 감독해야 할 업무도 포함하는 점, ‘비전속’의 문언적 의미를 고려하면, 특수의료장비규칙에서 요구하는 비전속 영상의학과 전문의는, 주 1회 등 일정한 간격을 두고 주기적으로 해당 병원에서 근무할 필요는 없다고 하더라도, 최소한 해당 의료기관과 일정한 관계를 맺고 지속적으로 의료영상의 품질관리 업무를 총괄하거나 감독하고 영상화질을 평가하며 임상영상을 판독할 필요는 있다고 보는 것이 타당하다.

Therefore, the fact that a medical specialist in the film department did not work at the relevant medical institution is insufficient to readily conclude that he/she did not work in a non-speed manner. However, considering the following: (a) if a medical specialist in the film department does not work at the relevant medical institution, accessibility to the special medical equipment or its installation environment is reduced; and (b) it is difficult to effectively administer and supervise the quality control of medical videos for radiation professionals; and (c) evaluation of the film quality, etc., it may be presumed that a medical specialist in the film department did not work at the relevant medical institution for the reason that he/she did not work at the relevant medical institution, he/she did not perform his/her duties, such as overall control and supervision

2) Specific determination

In light of the relevant provisions and legal principles as seen earlier, it is recognized that Nonparty 1, Nonparty 3, and Nonparty 4 of the film medical department did not perform the duties of overall control, supervision, etc. of the quality control of medical videos pertaining to each of the special medical equipment of this case. Thus, the Plaintiff is recognized to have installed and operated each of the special medical equipment of this case in violation of Article 38(1) of the Medical Service Act and Article 3(1) and [Attachment 1] of the Rules on Special Medical Equipment of this case. Accordingly, this part of the Plaintiff’s assertion contrary thereto is without merit.

A) As Nonparty 1 did not visit the instant member from December 1, 2012 to February 28, 2013, Nonparty 3, and Nonparty 4, respectively, from March 1, 2013 to November 30, 2015, Nonparty 1 may be presumed to have failed to perform duties, such as overall control and supervision of the quality control of medical images of each of the instant special medical equipment during the pertinent period.

B) According to a contract between the Plaintiff and Nonparty 1 on the reading of images taken by each of the special medical equipment of this case concluded on December 20, 2010 and February 22, 2013 between the Plaintiff and Nonparty 6, the term “general control and supervision of the business of quality control of medical images” for each of the special medical equipment of this case is not included in the business performed by Nonparty 1 and Nonparty 6.

The Plaintiff claims that Nonparty 1 and Nonparty 6 paid additional compensation in addition to reading, and that the Plaintiff had the special medical equipment of this case engaged in the “general control and supervision of the business of quality control of medical videos,” and that the Plaintiff paid KRW 500,000 per month to Nonparty 1 and KRW 80,000 per month to Nonparty 6. However, the written contract drafted on December 20, 2010 between the Plaintiff and Nonparty 1 stated that KRW 50,000 per month, other than reading fees, shall be paid in consideration of the fact that the Plaintiff and Nonparty 6 paid additional compensation in addition to reading fees, and that the Plaintiff and Nonparty 6 paid KRW 80,000 per month to Nonparty 1 and Nonparty 6 separately from reading fees, and that it is difficult to accept the Plaintiff’s respective contract that the Plaintiff and Nonparty 1 and Nonparty 6 paid the fixed remuneration in consideration of the number of occasions of performing the business of quality control and supervision of the parties, and that there is no specific method of paying the fixed remuneration in consideration of the number of fixed remuneration.

C) To secure a good quality image, a medical specialist in the film department needs to verify the specifications, operating methods, detailed establishment, etc. of the special medical equipment installed in the relevant hospital, and further instruct and supervise the radiation company with respect to the video protocol. If a medical specialist in the film department does not visit the relevant hospital, he/she can be able to understand the special medical equipment of the relevant hospital, and there is also no difficulty in giving specific instructions and supervision concerning the video protocol of the special medical equipment of this case. There is no circumstance to deem that Nonparty 1, Nonparty 3, and Nonparty 4 received specific information from the Plaintiff on the specifications, state, operating methods, detailed establishment, and conditions of shooting of each special medical equipment of this case, or that he/she received specific instructions and supervises the video protocol of each special medical equipment of this case, even remotely.

The Plaintiff asserted that, on May 2012, Nonparty 1 recommended the Plaintiff to replace the device for the shooting of a room at issue with the quality of clinical image and submitted as evidence a sales contract (Evidence A7) and a written confirmation of May 25, 2018 prepared by Nonparty 5 of the instant member’s radiation company (Evidence A-1, 2). However, it is difficult to believe that Nonparty 1 recommended replacement in light of the absence of objective data to deem that Nonparty 1 recommended replacement, the relationship between the Plaintiff and Nonparty 5, and the time of preparation of written confirmation, etc. In addition, the Plaintiff asserted that the scope of the movie cans among the matters regarding the video protocol of the computerized body of the instant case, the scope of the video screen type among the matters regarding the video protocol of the computerized body of this case, whether it is administered, and the method of photographing, etc. do not necessarily follow the doctor’s opinion, but it cannot be viewed that the doctor’s opinion in charge of supervision and supervision of the aforementioned matters cannot be accepted.

라) 의료법 제38조 는 “의료기관은 보건의료 시책상 적정한 설치와 활용이 필요하여 피고 장관이 정하여 고시하는 의료장비를 설치·운영하려면 보건복지부령으로 정하는 바에 따라 시장·군수·구청장에게 등록하여야 하며, 보건복지부령으로 정하는 설치인정기준에 맞게 설치·운영하여야 한다( 제1항 ). 의료기관의 개설자나 관리자는 제1항 에 따라 특수의료장비를 설치하면 보건복지부령으로 정하는 바에 따라 피고 장관에게 정기적인 품질관리검사를 받아야 한다( 제2항 ). 의료기관의 개설자나 관리자는 제2항 에 따른 품질관리검사에서 부적합하다고 판정받은 특수의료장비를 사용하여서는 아니 된다( 제3항 )”라고 규정하고 있다. 그 위임에 따른 특수의료장비규칙 제8조 제1항 , 제2항 에 의하면, 특수의료장비를 설치·운영하는 의료기관의 개설자 등은 그 의료기관에 전속(전속)된 의사 중 설치된 장비에 관하여 전문 지식이 있는 자 또는 방사선사 1명을 특수의료장비의 관리자로 선임하여야 하고, 특수의료장비의 관리자는 특수의료장비에 대한 인력·시설 관리, 정도관리항목에 따른 관리, 팬텀영상관리, 임상영상관리 등의 업무를 수행한다. 또한 특수의료장비규칙 제5조 제1항 , 제2항 , [별표 2]에 의하면, 특수의료장비를 설치·운영하는 의료기관의 개설자 등은 1년마다 인력검사, 시설검사, 정도관리기록 검사, 팬텀영상 검사의 검사항목에 대하여 서류검사를 받아야 하고, 3년마다 위 서류검사의 검사항목에 임상영상 검사를 추가하여 현지 출장검사의 방식으로 정밀검사를 받아야 한다(정밀검사를 받은 연도에는 서류검사가 면제된다). 이러한 규정과 별도로 앞서 본 것처럼 관련 법령이 전산화단층 촬영장치와 유방 촬영용 장치의 운용인력 기준으로 비전속 영상의학과 전문의 1명 이상을 두도록 하고 그의 역할을 따로 규정하고 있는 점에 비추어 보면, 특수의료장비 관리자는 특수의료장비규칙에 따라 특수의료장비에 대한 전반적인 관리를 담당하고, 영상의학과 전문의는 특수의료장비 관리자와 병행하여 특수의료장비의 의료영상 품질관리 업무의 총괄 및 감독, 영상화질 평가 등의 업무를 수행하여야 하므로, 영상의학과 전문의의 ‘의료영상 품질관리 업무의 총괄 및 감독 업무’에는 위와 같은 특수의료장비 관리자에 의한 특수의료장비 관리의 적정성 여부의 감독 등도 포함된다고 봄이 타당하다. 또한 위 규정에 의한 서류검사와 정밀검사에서 부적합 판정을 받을 경우 의료법 제38조 제3항 에 따라 특수의료장비를 사용할 수 없게 되는 사정에 비추어, 위 서류검사와 정밀검사의 통과는 해당 특수의료장비의 안전성 등을 담보하기 위한 최소한의 요건을 설정한 것이므로, 특수의료장비가 서류검사와 정밀검사에서 적격판정을 받았다는 이유로 영상의학과 전문의의 ‘의료영상 품질관리 업무의 총괄 및 감독’이 임상영상 판독업무에 수반하여 이루어지는 정도로 족하다고 볼 수도 없다. 따라서 영상의학과 전문의의 ‘의료영상 품질관리 업무의 총괄 및 감독’이 특수의료장비 관리자가 수행하는 ‘전산화단층 촬영장치와 유방 촬영용 장치에 대한 품질관리 업무’를 제외한 나머지 부분에 한정된다는 취지의 원고 주장은 받아들일 수 없다.

E) Nonparty 2 and Nonparty 5, who were designated as the manager of each of the special medical equipment of this case, are deemed to have been prepared for submitting documents inspection and close inspection under the Medical Service Act and subordinate statutes, and signed or sealed by Nonparty 1, Nonparty 4, and Nonparty 3 as an evaluator, and it is also insufficient to recognize that Nonparty 1, Nonparty 4, and Nonparty 3 overall control and supervision over the medical image quality control of each of the special medical equipment of this case solely on the basis of the fact that Nonparty 1, Nonparty 4, and Nonparty 3 signed or sealed the “around video evaluation slip” to be submitted at the time of document inspection and close inspection under the Medical

E. Whether the calculation of unfair amount of business suspension in the instant case and the calculation of the recovery amount of the instant recovery disposition is unlawful

1) Relevant regulations and legal principles

A) According to the delegation of Article 41(2) of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016), Article 5(1) of the former Regulations on the Standards for Medical Care Benefits in National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 404, Jun. 3, 2016; hereinafter the same) provides that “A medical care institution shall provide medical care benefits for subscribers, etc. in accordance with the criteria and methods for medical care benefits specified in attached Table 1,” and Article 5(1) of the former Regulations provides that “A medical care institution shall maintain adequate human resources, facilities, and equipment necessary for medical care benefits for subscribers, etc.” as the general principle of medical care benefits.

In addition, Article 7(2) of the Medical Care Assistance Act delegates the method, procedure, scope, and limit of medical benefits to the Minister of Health and Welfare. Article 6(1) of the Enforcement Rule of the Medical Care Assistance Act provides that the standard and method of applying medical benefits under the delegation shall be in accordance with Article 5(2) and (3) [Attachment 1] of the former Rules on the Standards for Medical Care Benefits in National Health Insurance (excluding subparagraph 2(b)] (excluding subparagraph 2(b)]. Accordingly, the former Rules on the Standards for Medical Care Benefits in National Health Insurance [Attachment 1] of the Medical Care Assistance Act

B) According to Article 98(1)1 of the National Health Insurance Act, where a medical care institution imposes medical care benefit costs on an insurer, an insured person, or a dependent by “influence or any other unfair means,” the Defendant Minister may order the medical care institution to suspend its business operations for a period not exceeding one year. According to Article 57(1) of the National Health Insurance Act, the Defendant Corporation may collect all or part of the amount equivalent to the insurance benefit cost from the medical care institution, etc. that has received the insurance benefit cost by “influence or any other unfair means.” Here, “influence or any other improper means” does not require the medical care institution to submit or actively conceal false data in order to receive the medical care benefit cost, and includes all the act of receiving the benefit benefit cost by claiming it (see, e.g., Supreme Court Decision 2008Du3975, Jul. 10, 2008). This also applies to the case of any other unfair means (see, e.g., Supreme Court Decision 2002Du9090.

2) Specific determination

As seen earlier, the Plaintiff installed and operated each special medical care equipment of this case in violation of Article 38(1) of the Medical Service Act and Article 3(1) and [Attachment Table 1] of the Rules on Special Medical Equipment, which provided that one medical care institution or medical care institution may maintain adequate human resources, facilities, and equipment necessary for medical care benefits or medical care. Furthermore, according to the relevant legal principles as seen earlier, the Plaintiff violated Article 38(1) of the Medical Service Act and Article 3(1) and [Attachment Table 1] of the Rules on Special Medical Care Equipment, so long as the Plaintiff violated the standards for operating human resources of the computer-to-face filming and the video-to-face photographing equipment, the Plaintiff’s calculation of the amount of medical care benefit costs of each of the special medical care benefit costs of this case constitutes an unlawful calculation of the amount of medical care benefit costs of this case under Article 18(1) of the Medical Service Act or the medical care benefit cost of this case under Article 18(1) and [Attachment 1] of the Rules on Special Medical Equipment.

F. Whether each of the instant dispositions of business suspension deviates from or abuse of discretion

1) Relevant legal principles

Whether a punitive administrative disposition deviates from or abused the scope of discretion by social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual, by objectively examining the content of the violation as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007).

2) Specific determination

In light of the following circumstances known by the above facts, each of the instant dispositions of business suspension is difficult to be deemed to deviate from the scope of discretion or abuse of discretionary power under social norms. Accordingly, the Plaintiff’s assertion on this part is rejected.

A) Medical care benefits and medical care benefits are operated with health insurance premiums or taxes to be borne by citizens as financial resources. The public interest is very large to strictly control and manage medical care benefit costs and medical care costs in order to ensure the soundness and transparency in its financial management.

B) The sum of the unfair amount relating to each of the instant dispositions of business suspension exceeds KRW 388,181,150 (i.e., medical care benefit cost of KRW 377,719,750 + medical care benefit cost of KRW 10,461,400), as well as the sum of the unfair amount relating to each of the instant dispositions of business suspension, and the period of the unfair claim is considerably more than three years.

C) The monthly average unfair amount of business suspension of the instant medical care institution is KRW 10,489,575, and the unfair rate is 5.92%, which conforms to the criteria for administrative disposition prescribed in Article 98(1)1 of the National Health Insurance Act and Article 70(1) and attached Table 5 of the former Enforcement Decree of the National Health Insurance Act (amended by Presidential Decree No. 2743, Aug. 2, 2016). The monthly average amount of business suspension of the instant medical care institution is KRW 290,594, and the unfair rate is KRW 12.37%, and the unfair rate is 12.37%, which conforms to the criteria for administrative disposition prescribed in Article 16-2 and attached Table 2 of the former Enforcement Decree of the Medical Care Assistance Act (amended by Presidential Decree No. 27275, Jun. 28, 2016).

D) When the Plaintiff entered into a contract to read the images taken by Nonparty 1 and Nonparty 6 with each of the special medical equipment of the instant case, the Plaintiff’s failure to perform a contractual obligation to exercise overall control and supervision over the quality control of medical videos goes against the standards for personnel to operate the computer-story shooting equipment and the cellular shooting equipment, as well as to reduce the cost to be paid to the medical specialists, and there is no other circumstance to consider otherwise.

E) Each of the special medical equipment of this case is a device to photograph images by exposure to the human body to a radiation harmful to the human body. Since the image is used as very important material to confirm diseases, there is a need to thoroughly control so that it can minimize adverse effects on the human body through the exposure dose control, etc. enables a thorough control so that it can secure a good quality image. Considering these circumstances, there was no clear circumstance to deem that there was a special problem in each of the special medical equipment of this case and the video diagnosis using it. However, even though there was no “general control and supervision over the control and supervision of the medical image quality” of the medical specialist of this case, it cannot be said that the video photographing and diagnosis by each of the special medical equipment of this case was performed properly.

F) The disadvantage that the Plaintiff received as a result of the instant disposition of business suspension is not only caused by the Plaintiff’s mistake, but it is difficult to view that the need for the public interest is greater

G. Sub-committee

Each disposition of this case does not constitute an unlawful ground alleged by the plaintiff.

3. Conclusion

All of the claims of this case are dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Kim Jong-ho (Presiding Judge)