Plaintiff (Law Firm Ba, Attorneys Kim Jong-sung et al., Counsel for plaintiff-appellant)

National Health Insurance Corporation

June 27, 2019

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition to recover medical care benefit costs of KRW 996,616,970 against the Plaintiff on February 12, 2018 shall be revoked.

1. Details of the disposition;

A. From May 1, 2006 to March 12, 2016, the Plaintiff is an intention to establish and operate part of the Seocho-gu Seoul ( Address omitted) first floor and △△△△△△△△△△△ (hereinafter “instant member”), which is a medical care institution, on the second to fourth floor. Nonparty 3 is an intention to establish and operate ○○○○○○○○, which is another medical care institution, for the same period.

B. On February 12, 2018, the Defendant notified the Plaintiff of the determination that the Plaintiff would recover (i) medical care benefit costs of KRW 996,616,970 (the Corporation charges of KRW 748,328,520, KRW 208,05,840, and KRW 40,282,610) under Article 57 of the National Health Insurance Act (hereinafter “the instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the testimony of non-party 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff completed the submission of documents confirming that the Plaintiff is a joint-use institution as a medical care institution that intends to jointly use facilities, equipment, etc. under [Attachment Table 1] subparagraph 1 (e) of the Regulations on the Standards for Medical Care Benefits under National Health Insurance (hereinafter “Rules on Medical Care Benefits”) by leasing the entire building with Nonparty 3 and completing the report on establishment as medical institution facilities. As long as the Plaintiff obtained the consent of Nonparty 3 on the joint-use of the admission room of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

In addition, in cases where the requirements for the consent of the head of another medical institution are satisfied pursuant to Articles 33(1)5 and 39(1) of the Medical Service Act, joint use of facilities, human resources, etc. by other medical institution is clearly permitted. Therefore, interpreting the detailed provisions on the criteria and method for the application of medical care benefits and the Regulations on the Detailed Regulations on the Standards and Methods of Applying the Medical Care Benefits and the Regulations on the List of Allowances and Allowances for Health Insurance Activities and the Points of relative Points of Benefits to limit the joint use of medical institutions differently from the language and purport of the above provisions of the Medical Service Act is unlawful and unfair as it goes beyond the bounds of delegated legislation

In addition, it is unreasonable to view that a claim for compensation for a normal medical practice performed by a medical practitioner is “the case where the payment of insurance benefits was made by means of continuous acceptance or other unjust means” under Article 57 of the National Health Insurance Act. ② If the Plaintiff had reported to the Health Insurance Review and Assessment Service in advance only, it would not be possible for the Defendant to refuse the payment of the medical care benefits of the instant member. ③ As long as the medical treatment contract between the Plaintiff and the instant member patients remains effective, the Plaintiff still can claim for medical expenses for the patients, and the patient would be able to again exercise the right to demand reimbursement for the whole of the above medical expenses after paying the above medical expenses to the Plaintiff according to the above medical treatment contract. As such, the Defendant’s recovery of the medical care benefits costs leads to complicated legal disputes arising from the Defendant’s recovery of the medical care benefits costs, ④ The risk of damage to the Defendant is not recognized due to the Plaintiff’s claim, and the requirements for unjust enrichment is not established due to the absence of causation between unjust enrichment or damage.

2) Since the specialized rehabilitation treatment for the patients receiving the instant council member’s treatment was conducted on the second floor of the instant council member, among the medical care benefit costs subject to the instant disposition, KRW 420,681,940 (the amount of school tuition fees) incurred in relation to specialized rehabilitation treatment on the second floor of the instant council member, even if it is for the patients hospitalized at the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Review of the provisions of medical statutes on the sharing of medical institution facilities, etc.

A) Article 33(1) of the Medical Service Act provides, “A medical person shall not engage in medical service unless he/she establishes a medical institution under this Act, and shall provide his/her medical service within the medical institution except in any of the following cases.” Article 39(1) provides, “A medical person may provide medical treatment using facilities, equipment, human resources, etc. of another medical institution with the consent of the head of another medical institution.”

In addition, Article 3 of the Medical Service Act mainly regulates a medical institution that a doctor, dentist, or oriental medical doctor provides medical services to outpatients as a clinic-level medical institution (medical clinic, dental clinic, oriental medical clinic), and mainly regulates a medical institution that provides medical services to inpatientss as a hospital-level medical institution (a hospital, convalescent hospital, general hospital, etc.). The establishment of a clinic-level medical institution is separately prescribed as the matters to be reported by the head of a Si/Gun/Gu, and the establishment of a hospital-level medical institution is separately prescribed as the matters to be permitted by the Mayor/Do Governor (Article 33(3) and (4)). Article 36 of the Enforcement Rule of the Medical Service Act provides that a person who establishes a medical institution shall strictly comply with the standards for the facilities and specifications of the medical institution, matters concerning the standards for the operation of safety management facilities, and matters concerning the standards for the operation of medical institutions (Article 36).

B) As a matter of principle, the Medical Service Act provides medical services within a medical institution established by a medical person, in light of the following: (a) medical practice goes against the order of medical care due to deterioration of the quality of medical care and infringement of the right of the patient to receive proper medical care; (b) the need for the healthcare policy to prevent any serious hazard to public health and hygiene; and (c) medical care is a kind of medical practice that cannot be provided by a medical person but a medical person has the duty of care to take the best measures required to prevent risks depending on the patient’s specific symptoms or circumstances in light of the nature of the duties of managing the patient’s life, body, and health when performing the aforementioned medical practice; and (d) it is reasonable to interpret that a medical person as requested by a patient or his/her guardian has the duty of care to prepare for the patient’s symptoms or conditions in advance and to visit a place where the patient has been equipped with the patient’s equipment, equipment, etc. necessary for the patient’s medical treatment; and (e) to interpret the case where one can visit a patient or his/her guardian outside the medical institution.

In addition, in order to provide citizens with high-quality medical benefits, the medical law provides that medical institutions whose size is above a certain level shall obtain permission for establishment with the facility standards and specifications prescribed by the Ordinance of the Ministry of Health and Welfare, and where they intend to change important matters among the matters so permitted, permission for change shall be obtained, and the matters to be observed by the founders, etc. of medical institutions shall not be hospitalized in a place other than a hospital. Accordingly, Article 33(1) of the Medical Service Act provides the principle that medical personnel shall provide medical services within the relevant medical institution. However, Article 39(1) of the Medical Service Act provides that exceptional cases where necessary to allow patients to provide medical services using facilities, equipment, human resources, etc. of other medical institutions shall be construed as providing exceptional cases where it is necessary to allow patients to provide optimal medical services. On the other hand, Article 39(1) of the Medical Service Act provides that if it is deemed that a medical institution regularly uses facilities, equipment, etc. of other medical institutions beyond a certain level of common use based on individual and specific conditions, thereby seriously impairing the legislative intent of the relevant Acts and regulations.

Ultimately, medical treatment under Article 39(1) of the Medical Service Act is permitted only within the exceptional scope as seen above. Using the facilities, equipment, human resources, etc. of another medical institution, thereby running a medical service in the medical institution, or repeatedly allowing a specific patient to uniformly treat at another medical institution without individual and specific determination as to the necessity for the medical treatment by using the facilities, equipment, human resources, etc. of the medical institution, cannot be deemed as an act permissible under Article 39(1) of the Medical Service Act.

2) Review of the provisions of the National Health Insurance Decree concerning the sharing of medical institution facilities

A) Article 43 of the National Health Insurance Act provides that the current status of, and changes to, facilities, equipment, and human resources of a medical care institution shall be reported to the Health Insurance Review and Assessment Service within a given period (Paragraph (1) and (2)). Article 41(3) of the same Act provides that matters necessary for the scope of, subject to reporting, method and procedure for, etc. shall be prescribed by Ordinance of the Ministry of Health and Welfare (Paragraph (3) and Article 41(3) of the same Act provides that the criteria for methods, procedures, scope, maximum limits, etc. of health care institutions shall be prescribed by Ordinance of the Ministry of Health and Welfare. Article 5(1) [Attachment Table 1] subparag. 1(e) of the Health Care Benefit Standard provides that a high-quality facility, human resources, and equipment possessed by another medical care institution may be jointly utilized as publicly notified by the Minister of Health and Welfare. Each Section 1, Section 2, and Section 3 of Part I of the same Act, which provides that the scope of medical care benefit benefits shall be included in the scope of a full-time medical care institution.

B) In full view of the purport of Article 39(1) of the Medical Service Act and the language and text of the above Decree, a medical care institution that intends to jointly use the facilities of another medical institution, i.e., a medical care institution that intends to obtain medical care benefits, may jointly use the facilities, human resources, and equipment of another medical care institution only after submitting documents verifying that the institution is a joint use institution to the Health Insurance Review and Assessment Service, only in exceptional cases necessary for the optimal treatment of patients.

C) Meanwhile, the purpose of the National Health Insurance Act and the Medical Service Act is the Act for the Protection and Promotion of Public Health and Health, but the National Health Insurance Act provides for the provision of health care benefit suitable for the treatment of diseases, while the Medical Service Act provides for the provision of health care benefit suitable for the treatment of diseases to all citizens, so that all citizens can benefit from high-quality medical care, it is difficult to deem that the legislative purpose and the subject of regulation is the same (see Supreme Court Decision 2015Du36485, May 30, 201, etc.). It is a separate issue whether a specific method of medical care or treatment is included in the medical practice permitted under the Medical Service Act, and whether the method of medical care falls under the subject of health care benefit under the National Health Insurance Act, and it is difficult to view that all of the methods of medical care benefits should be paid as the subject

Therefore, notwithstanding Articles 33(1)5 and 39(1) of the Medical Service Act that permits the common use of facilities, human resources, etc. of other medical institutions, the scope of the above-used medical practice subject to medical care benefits may be limited by the National Health Insurance Act, or by the Ordinance of the Ministry of Health and Welfare or public notice delegated by the National Health Insurance Act or the Ministry of Health and Welfare. However, since the above-mentioned medical institution facilities standards for medical care benefits concerning the common use of facilities, etc. and the detailed provisions of the Medical Care Benefit Standards and the Health Insurance Act and the Regulations on the List of Benefits and the relative Points of Benefits of Health Insurance Act are both delegated by the National Health Insurance Act and the Medical Care Benefit Standards, there is no illegality of exceeding the limit of delegated legislation in the above medical care benefit standards and public notice

(iii) the existence of the reasons for the action

A) Article 57(1) of the National Health Insurance Act provides that “Where a medical care institution, such as a medical institution, submits false data or actively conceals facts for receiving medical care benefit costs” does not require the medical care institution, but includes all the act of claiming and receiving medical care benefit costs under relevant Acts and subordinate statutes (see, e.g., Supreme Court Decisions 2003Du9169, Jan. 12, 2006; 2010Du26315, Apr. 14, 201).

B) According to the evidence No. 2, No. 1 and No. 2, and the witness testimony and arguments of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s hospital’s treatment of the instant patients. Furthermore, the Plaintiff could be considered to have operated the instant patient’s hospital’s hospital’s treatment facilities with an individual and specific demand.

Therefore, the Plaintiff’s act of sharing the hospital room or physical clinic of another medical institution without any report goes beyond the permissible limit under Article 39(1) of the Medical Service Act and is unlawful, and it constitutes a case where the Plaintiff is unable to receive medical care benefits because it did not include the method of treatment subject to medical care benefits (in the case of physical treatment by non-standing physical clinic) or is not submitted to the Health Insurance Review and Assessment Service a document confirming that the Plaintiff is a joint use institution (in the case of hospital treatment), and thus, constitutes “the cost of medical care benefits has been paid by fraud or other improper means” under Article 52(1) of the National Health Insurance Act.

C) Meanwhile, as long as the Plaintiff’s act deviates from the permissible limit under Article 39(1) of the Medical Service Act, even if the Plaintiff submitted a confirmation document to the Health Insurance Review and Assessment Service, the Defendant may refuse to pay the pertinent health care benefit. Therefore, the Plaintiff’s assertion that the Plaintiff cannot recover the above health care benefit cost on the ground that there is no normative causal relationship between the Plaintiff’s failure

In addition, even if the medical contract between the plaintiff and the plaintiff and the plaintiff are valid, insofar as the scope of the medical care benefit amount falls under the scope of the medical care benefit amount, the plaintiff can claim the medical care benefit amount for the patients insured by national health insurance within the scope of the medical care benefit amount stipulated by the contract pursuant to Article 45 of the National Health Insurance Act. Therefore, the plaintiff can not seek payment from the defendant as well as the above patients. The plaintiff's assertion that the disposition of this case only causes complex legal relations between the plaintiff and the patient concerned and the defendant is without merit.

In addition, the instant disposition is not a disposition to recover unjust profits accrued to the Plaintiff, but a disposition to reinstate such expenses if they were paid, and thus, it constitutes an unfair amount subject to restitution. It is not necessary to consider whether the Plaintiff actually accrued benefits to the Plaintiff or whether the treatment contract between the Plaintiff and the relevant patient is valid under the private law. The Plaintiff’s assertion that the instant disposition did not meet the requirements for unjust enrichment, or that it is unreasonable due to the failure to take into account the legal relationship with the patient at all, is without merit.

4) Determination on the scope of recovery

Even for the patient hospitalized in the hospital of ○○○○○○○○○○, the Plaintiff asserts that medical care benefit costs incurred in relation to specialized rehabilitation treatment should be excluded from the scope of restitution of unjust enrichment. As such, it is natural and accords with the actual medical care. ② As alleged by the Plaintiff, it is reasonable to view that all medical care costs, such as hospitalization and examination, medication, medication, and physical therapy, conducted before and after hospitalization, in the case of inpatients, are in an indivisible relationship. ② As for the interpretation of the Plaintiff, the Plaintiff is only recovered from the cost of hospitalization if the patient is discovered while operating the hospital without permission, and all kinds of medical care costs related to medical treatment, which would be able to be relieved from the recovery on the ground that the patient himself/herself directly performed the hospital’s own. This is clearly unreasonable because it does not differ from what permits the recovery of the medical care costs incurred in relation to specialized rehabilitation treatment by setting the facility standards of the medical institution. ③ The amount of medical care benefit charges to be borne by the patient depending on whether the patient was hospitalized or outpatient medical treatment is different from the patient’s claim.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Park Jong-yang (Presiding Judge)

Note 1) According to the Plaintiff’s evidence Nos. 1, the Plaintiff’s list of unfair claims against the criteria for calculating physical therapy also leads to 2,883 persons.