[1] Requirements for public notice to constitute an administrative disposition that is subject to appeal litigation

[2] The case holding that "a list of pharmaceutical products, non-benefit benefits and the upper limit of the amount of benefits" publicly notified by the Ministry of Health and Welfare constitutes an administrative disposition subject to an appeal litigation

[3] The meaning of "interest legally protected" as a requirement for a third party, who is not the other party to an administrative disposition, to seek revocation of the administrative disposition

[4] The case holding that a pharmaceutical company that manufactures and supplies medicines has standing to seek revocation of the drug's reduced portion of the drug's reduced portion among the "the list of pharmaceutical products, non-benefit benefits and the upper limit of benefits" notified by the Ministry of Health and Welfare

[5] Whether a court may render ex officio a ruling of assessment (affirmative), and the standard for determining whether a substantial inappropriate public welfare, which is the requirement for rendering a ruling of assessment, is considerably inappropriate

[1] Article 2 of the Administrative Litigation Act / [2] Articles 39 and 42(7) of the National Health Insurance Act, Article 24(3) of the Enforcement Decree of the National Health Insurance Act, Article 8(2) and Article 14 of the Regulations on the Standards for Medical Care Benefits in National Health Insurance / [3] Articles 1 [4] and 12 of the Administrative Litigation Act / [4] Articles 39 and 42(7) of the National Health Insurance Act, Article 24(3) of the Enforcement Decree of the National Health Insurance Act, Articles 8(2) and 14 of the Regulations on the Standards for Medical Care Benefits in National Health Insurance, Article 12 of the Administrative Litigation Act / [5] Articles 19 and 28 of the Administrative Litigation Act

[1] Supreme Court Order 2003Du23 Decided October 9, 2003 (Gong2004Sang, 355) Supreme Court Order 2003Du2506 Decided May 12, 2004 (Gong2006Ha, 1828) / [3] Supreme Court Decision 97Nu1337 Decided February 8, 200 (Gong2000Sang, 616Du12465 Decided May 14, 2008 (Gong204Sang, 105Du20968 decided August 16, 2004) / [3] Supreme Court Decision 97Du13337 Decided 200, 2008Du12465 decided May 14, 2008 (Gong2004Sang, 1001)

Sk Co., Ltd. (Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

The Minister of Health and Welfare (Law Firm Haok, Attorneys Yang Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Nu5941 delivered on October 28, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. When a notice has a general and abstract character, it constitutes an administrative disposition, but it itself, without mediating other enforcement acts, shall be deemed to constitute an administrative disposition (see Supreme Court Order 2003Da23, Oct. 9, 2003).

In light of the above legal principles and the records, the notice of this case itself has a characteristic to directly regulate the legal relations of national health insurance, the National Health Insurance Corporation, the National Health Insurance Corporation, the health care institution, etc. without mediating any other enforcement act. Therefore, it constitutes an administrative disposition subject to

The judgment of the court below to the same purport is just, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the disposition of public notice.

B. Even if a third party who is not the direct counter party to an administrative disposition is not the party, if the interests protected by law are infringed by the pertinent administrative disposition, a revocation lawsuit shall be instituted, and the legally protected interests here refer to individual, direct and specific interests protected by the relevant administrative disposition-based laws and regulations and relevant laws and regulations (see, e.g., Supreme Court Decisions 2003Du2175, Aug. 16, 2004; 2004Du6716, Jul. 28, 2006).

In light of the above legal principles and related Acts and subordinate statutes, the plaintiff is entitled to enjoy direct and specific benefits protected by applicable Acts and subordinate statutes, such as the National Health Insurance Act and subordinate statutes with respect to the drug of this case that he manufactures and supplies, and the plaintiff is deemed to have infringed on legal interests protected by applicable Acts and subordinate statutes as the upper limit of the drug of this case was lowered due to the public notice of this case. Thus, the plaintiff is entitled to seek the cancellation of the upper limit of the drug of this case among the public notice of this case

The judgment of the court below to the same purport is just, and there is no violation of the rules of evidence and misapprehension of legal principles as to the standing for parties.

2. Regarding ground of appeal No. 2

In full view of the admitted evidence, the court below acknowledged facts as stated in its holding, and determined that the Defendant’s reduction of the maximum amount of the instant medicine by the instant notice was unlawful since it was not permissible in light of the content and purport of the relevant statutes and the determination and adjustment guidelines for new medical technology, etc., and thus, its validity was considerably lost by social norms. Therefore, the lower court determined that the Defendant’s reduction of the maximum amount of the instant medicine in the instant notice was made by abusing or abusing discretionary authority.

In light of the relevant statutes and the records, the above recognition and judgment of the court below are just, and there is no violation of the rules of evidence, misapprehension of legal principles as to deviation and abuse of discretionary power, etc.

3. As to the third ground for appeal

In a case where an administrative disposition is unlawful, in principle, cancellation or modification of the illegal disposition is a matter of principle, and in a case where the cancellation or modification of the illegal disposition is considerably inappropriate for public welfare, it may be decided ex officio on the basis of various circumstances shown in the record even in the absence of a party’s clear assertion. However, whether it is considerably inappropriate for public welfare, which is the requirement thereof, shall be determined by comparing and comparing the necessity for cancellation or modification of the illegal administrative disposition and the situation against public welfare which may arise due to the cancellation or modification thereof (see Supreme Court Decisions 98Du4061, May 8, 1998; 9Du9674, Jan. 19, 2001, etc.).

In light of the above legal principles and records, the court below's rejection of the defendant's assertion of circumstance on the grounds that the part of reducing the maximum amount of the drug of this case in the notice of this case can not be deemed to bring about a result significantly inappropriate for the public welfare. There is no violation of the rules of evidence and misapprehension of legal principles as to the requirements for judgment

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)