[1] In a case where: (a) Party A and Company B claimed damages equivalent to the medical care benefit cost related to the aforementioned pharmaceutical products against Party B and the employer, who operated the biological equivalence test data of reproduced pharmaceutical products; and (b) Party B and others asserted for offsetting profits and losses, the case holding that the lower court erred by misapprehending the legal doctrine, on the ground that the Corporation had obtained the benefit higher than the medical care benefit cost due to the aforementioned pharmaceutical products

[2] In a case where: (a) Party A and Company B claimed damages equivalent to the medical care benefit cost for the aforementioned pharmaceutical products against Party A and Company B, the National Health Insurance Corporation, which operated biological equivalence test data of reproduced pharmaceutical products; and (b) Party B and others asserted the expiration of the extinctive prescription period, the case holding that the lower court erred by misapprehending the legal doctrine in determining that the extinctive prescription expired on the ground that the lower court recognized the elements of tort when the Corporation received a public notice

[1] The case holding that in case where Gap et al. and Eul filed a defense of offsetting profits and losses with the assertion that Gap et al. obtained the benefit of exempting them from the obligation to pay other medicines such as originals of identical ingredients by paying the medical care benefit costs for the above medicines (hereinafter "alternative medicines"), the court below erred in the misapprehension of legal principles as to offsetting profits and losses in tort, on the grounds that it cannot be deemed that the above medicines have the same efficacy as the alternative medicines prescribed and prepared in order to recognize that the above medicines were identical to the alternative medicines prescribed and prepared, on the grounds that it cannot be deemed that the above medicines were proved that they had the same efficacy as the alternative medicines prescribed and prepared, in order to obtain the same effect as the medical care benefits provided by the above medicines.

[2] In a case where: (a) Party A and Company B claimed damages equivalent to the medical care benefit costs for the aforementioned drugs against Party B, the employer, etc., who fabricated the biological equivalence test data of reproduction drugs (hereinafter “biological equivalence”); (b) and (c) Company A and others asserted the expiration of the extinctive prescription period, the case holding that the judgment below erred by misapprehending the legal principles as to the starting point of the extinctive prescription period for damages liability for tort damages arising from tort, on the ground that: (a) the Korea Food and Drug Administration’s announcement, such as “the result of the final investigation by the testing institution for the same-sex sex of drugs,” and the public announcement of “the direction of the Minister of Health and Welfare for the suspension of benefits” was erroneous; and (b) the Corporation knew that the aforementioned drugs constituted the suspended item; and (c) it was insufficient to view that the damage equivalent to the medical care benefit cost was finally and specifically discovered at the time of the illegal act; and (d) there was insufficient reason to view that the Corporation

[1] Articles 393, 396, 750, and 763 of the Civil Act / [2] Article 766 (1) of the Civil Act

National Health Insurance Corporation (Attorney Song-young, Counsel for defendant-appellant)

[Defendant-Appellee] Yud Co., Ltd. and nine others (Law Firm, Kim & Lee LLC et al., Counsel for defendant-appellee)

Seoul High Court Decision 2011Na75678 decided April 4, 2012

The part of the judgment of the court below against Defendant Woo-Fac, Defendant 8, 9, and 10 is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed. The costs of appeal between the Plaintiff and the Defendants except the said Defendants are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the damage caused by the tort committed by Defendant 1, Defendant 8, 9, and 10

A. Property damage caused by a tort refers to the difference between the property status that would have existed without the relevant illegal act and the current property status that would have caused such illegal act. Considering the circumstances to be considered when considering the property status that would have existed without the illegal act may be acknowledged by a reasonable trend based on a comprehensive view of various circumstances before and after the illegal act. If the circumstances alleged by the parties are not acknowledged by such trend, it may not be considered to refer to the presentation of the property status where the illegal act did not exist (see Supreme Court Decision 2010Da21276, Jul. 8, 2010, etc.).

B. (1) The lower court accepted the Plaintiff’s obligation to pay medical care benefit benefits of this case (hereinafter “the Plaintiff’s medical care benefit benefit benefits”) and the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by Ordinance of the Ministry of Health and Welfare No. 401 of May 4, 2007; hereinafter the same shall apply) on the Plaintiff’s replacement of the Plaintiff’s medical care benefit under the former Pharmaceutical Affairs Act (wholly amended by Act No. 8365 of Apr. 11, 2007), and rejected the Plaintiff’s act of not providing medical care benefit benefits of this case to the Defendant 1, the representative director of the Defendant rap Co., Ltd. (hereinafter “Defendant Woo”), Defendant 8 and the analysis researcher, as the replacement of the Plaintiff’s medical care benefit benefit benefits of this case (hereinafter “the Plaintiff’s medical care benefit benefit benefit benefit benefit benefit benefit benefit benefit benefit benefit benefit benefit benefit”). However, the Plaintiff did not receive any other medical care benefit benefit benefit benefit benefit benefit benefit from this case’s reproduction from the Defendant 1’s unlawful act.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the part that held that the Defendants are liable to compensate for damages equivalent to the medical care benefit cost of this case due to the instant violation is acceptable.

However, in order to recognize that the instant alternative medicine was prescribed and prepared and that the instant alternative medicine had the same effect as the instant alternative medicine prescribed and prepared, it should be proven that the instant medicine had the same efficacy as the instant alternative medicine, which had undergone a same-sex test. However, even according to the reasoning of the lower judgment, it is insufficient to recognize that the instant medicine, even according to the reasoning of the lower judgment, is difficult to find that there was no difference between the instant medicine and the alternative medicine at the quantity and speed absorptiond in the body due to the manipulation of data on same-sex test. Thus, it cannot be deemed that there was proof solely on the grounds that there was no report on side effects after the prescription and preparation of the instant medicine, or that there was no duplicate prescription and preparation of the alternative medicine, and the fact that the medical care benefit was paid in addition to

In addition, even if the instant medicine has the same efficacy as the instant alternative medicine, there are other ingredients identical or similar to the instant medicine, as well as the instant alternative medicine. As such, it cannot be readily concluded that only the instant alternative medicine has been prescribed and prepared, as recognized by the lower court, under the premise that only the instant alternative medicine was prescribed and prepared. In addition, in order to allow a offsetting of profit and loss in calculating damages, the victim’s new benefit was incurred due to the act causing the pertinent liability for damages, and such benefit should be commensurate with the scope of damages that the obligor should compensate for (see Supreme Court Decision 2009Da98652, Apr. 28, 2011). As such, it is clear that the instant medical care benefit cost, which is the objective transaction value of the instant medicine, excluded from the subject of medical care benefit benefits depending on the south, and subject to recovery and destruction, could not be considered as a substitute for the instant medical care benefit cost, and thus, it cannot be seen that the Plaintiff has no more objective profit corresponding to the instant medical care benefit cost.

Nevertheless, the court below erred by misapprehending that the medical care benefits of this case were provided by the medical care benefits of this case. In so doing, the court below erred by misapprehending the legal principles on offsetting damages and losses in tort, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the extinctive prescription of the right to claim damages against Defendant Wps, Defendant 8 and 9

A. Article 766(1) of the Civil Act, which serves as the starting point for starting the short-term extinctive prescription of a claim for damages due to a tort, means the time when the victim, etc. reasonably and specifically, knows the facts requiring the tort, such as the occurrence of damage, the existence of an illegal harmful act, and proximate causal relation between the harmful act and the occurrence of the damage. Whether the victim, etc., was deemed to have such awareness should be reasonably acknowledged by taking into account various objective circumstances in individual cases and by taking into account the circumstances practically enabling the claim for damages (see, e.g., Supreme Court Decision 2006Da30440, Apr. 24, 2008).

B. On September 29, 2006, the Minister of Health and Welfare issued an order to recover medical care benefit costs related to the pharmaceutical products subject to the revocation of marketing approval by sending official text to the Plaintiff by sending the Plaintiff, and determined that the instant pharmaceutical products were listed in the medical care benefit item by using the same-sex test data and the perpetrator actually and specifically recognized the fact that the instant pharmaceutical products were damaged to the Plaintiff by using the same-sex test data. The lower court determined that, from that time to that time, the instant lawsuit was filed on December 30, 2009 and the statute of limitations for the right to claim damages against the said Defendants had expired.

C. However, the reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) On July 6, 2006, the Korea Food and Drug Administration announced the following as the title "the second investigation result of the same-sex testing institution for drugs" that "the difference between 30 items for which the same-sex test data has been confirmed and the plan to cancel permission for the same-sex test data and the measures to file a lawsuit against the relevant same-sex testing institution for damages against the pharmaceutical company," and on September 28, 2006, the title "the result of the final investigation of the same-sex testing institution for drugs" was 75 items, which "the result of the final investigation of the same-sex testing institution for drugs" submitted by the relevant same-sex testing institution and the test data submitted to the Korea Food and Drug Administration, and it is difficult to conclude that the Korea Food and Drug Administration is different from the Plaintiff, and therefore, it was known that the Plaintiff was aware of all the matters

(2) In addition, the public notice of September 29, 2006 by the Minister of Health and Welfare stated that the item subject to suspension of payment, name of pharmaceutical company, upper limit amount, and in the remarks column, “predetermined to delete the list of benefits at the time of a disposition to cancel the license of the Administrator of the Food and Drug Administration” is not a conclusive deletion of the list of benefits for the instant pharmaceutical products, but merely stated that it can be determined whether to delete the list according to the measures of the Commissioner of the Korea Food and Drug Administration after the temporary

(3) It is insufficient to view that the Plaintiff, through the above presentation and official door, was aware of the fact that the same-sex test data was wrong regarding the instant medicines, and that the instant medicines constituted the suspended items of benefits. At that time, it is difficult to view that the Plaintiff, in reality, actually and specifically recognized that the damage equivalent to the medical care benefit cost occurred as a final and conclusive result of the instant illegal act.

(4) In addition, on October 26, 2007, the Korea Food and Drug Administration conducted an investigation into the operation of the test data of this case, etc., and requested the prosecutor to investigate the case by specifying the operating personnel, and the actual operating personnel was found to have been partly different from the investigation and trial results.

D. In full view of the above circumstances, it cannot be deemed that the Plaintiff merely received the above official document, but actually and specifically recognized the facts of the requirements for tort, such as the content of the perpetrator or the harmful act, around September 29, 2006.

The judgment of the court below contrary to this is erroneous in the misapprehension of legal principles as to the starting point of the extinctive prescription of damage claim due to tort, and also affected the judgment. The ground of appeal assigning this error has merit.

3. As to the tort liability of Defendant U2D Co., Ltd.

A. On the grounds indicated in its reasoning, the lower court determined that: (a) it is insufficient to recognize that the Defendant U2D medicine Co., Ltd. (hereinafter “Defendant U2D”) was directly involved in the operation of data for the same-sex test solely based on the circumstances as alleged by the Plaintiff; (b) also, (c) it did not recognize the Plaintiff’s duty of care to manage and supervise the same-sex test of the instant pharmaceutical products; and (c) it did not accept the Plaintiff’s submission of the test report based on the test data operated by the Defendant U2D medicine; and (d) it did not err by misapprehending the Plaintiff’s duty of care to control and supervise the same-sex test of the instant pharmaceutical products; and (e) it did not accept the Plaintiff’s submission of the test report based on the test data conducted by the Defendant U2D medicine Co., Ltd. (hereinafter “Defendant U2”), as otherwise alleged by the Plaintiff; and (e) it did not err by misapprehending the Plaintiff’s duty of care and supervision of the test data conducted by the Defendant U20 No. 19-260 of the previous Medicines test data.

B. Examining the reasoning of the lower judgment in light of the aforementioned relevant statutes, the contents of the notice, and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the establishment of tort, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations, contrary to what is alleged in the ground of appeal.

4. As to the unjust enrichment of Defendant Uimeral medication, Maigu, Maigu, Kiguine, Co., Ltd., Co., Ltd. (hereinafter the above companies referred to as “Defendant Uimeral medication, etc.”), and Kichiala Co., Ltd.

A. As to the plaintiff's claim for restitution of unjust enrichment against the above defendants

(1) The lower court rejected the Plaintiff’s claim seeking the return of unjust enrichment amounting to the medical care benefit amount of the instant medical care benefit, on the grounds that (i) the instant medical care benefit cost, etc. was paid to the Defendant U.S. medical care institution, not to the Plaintiff, but to the medical care institution, even if there were no legal grounds, the Plaintiff may claim the return of unjust enrichment against the medical care institution; and (ii) there is no evidence suggesting that the medical care institution paid to the Defendant U.S. medical care institution prior to the division and U.S. medical care benefit amount was paid pursuant to the sales contract among them, and thus, the said sales contract was null and void or revoked.

(2) Meanwhile, according to the evidence duly admitted by the court below, medical care benefit costs paid by the plaintiff to the drug of this case prior to September 29, 2006 are limited to the drug of this case, and the Minister of Health and Welfare, on January 12, 2007, announced the amendment of the list of pharmaceutical benefit and the list of the upper limit of benefit amount to delete the drug of this case from the medical care benefit amount. The above notification is a new disposition that changes the existing notification, and thus, it cannot be deemed that there is retroactive effect. Thus, the medical care institution received the medical care benefit costs paid by the plaintiff according to the previous notification with respect to the drug of this case, which was previously prepared, without any legal grounds.

(3) Examining these circumstances and the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on unjust enrichment, contrary to what is alleged in the grounds of appeal.

The Supreme Court precedents cited in the grounds of appeal are different from this case, and thus are inappropriate to be invoked in this case.

B. As to the claim in subrogation of the claim against the above Defendants by the medical care institution

In a case where a creditor who is to be compensated by subrogation in a creditor subrogation lawsuit does not have the right to the debtor, the creditor himself/herself becomes the plaintiff and is no party to the creditor's right to the third debtor, so the subrogation lawsuit shall be dismissed as unlawful (see Supreme Court Decision 87Meu2753, Jun. 14, 198, etc.).

As seen above, insofar as it cannot be deemed that the medical care institution received medical care benefit costs from the Plaintiff in relation to the instant pharmaceutical product without any legal ground, there is no right to claim restitution of unjust enrichment against the Plaintiff’s medical care institution. Therefore, the Plaintiff’s claim by subrogation of the medical care institution to exercise the claim for return of unjust enrichment or the claim for damages against the said Defendants is unlawful because

Although the reasoning of the court below is different from this, the conclusion that this part of the lawsuit is deemed unlawful is justifiable. Thus, without examining the legitimacy of the reasoning of the court below, the argument in the grounds of appeal that the court below erred by misapprehending the legal principles as to the requirements for exercise of subrogation right by subrogation, such as necessity of preservation

5. Conclusion

Therefore, among the judgment of the court below, the part of the judgment against the defendant Woo-Woo, defendant 8, 9, and 10 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals against the remaining defendants except the above defendants are dismissed. The costs of appeal against the remaining defendants are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)