2018Du44838. Revocation of the determination on refund of medical care benefit costs

Medical and Consumer Cooperatives et al. and three others

Law Firm Woo et al., Counsel for the defendant-appellant

National Health Insurance Corporation

Attorney Cho Byung-chul, Counsel for the defendant-appellant

Gwangju High Court Decision 2017Nu4504 Decided April 26, 2018

July 9, 2020

The judgment of the original court shall be reversed, and the case shall be remanded to the Gwangju High Court.

The grounds for appeal are determined.

1. Whether it is subject to the disposition of collecting unjust benefits;

A. According to the National Health Insurance Act, a health care institution provides health care benefit to policyholders, etc., and claims the National Health Insurance Corporation (hereinafter “Corporation”) for reimbursement of health care benefit costs (Articles 42 and 47). The Corporation shall collect all or part of the amount equivalent to the cost of health care benefit from a health care institution for which insurance benefits have been provided by deceit or other unlawful means (Article 57(1)); and where a person, who is unable to establish a medical institution, in violation of Article 33(2) of the Medical Service Act, falls under a medical institution established and operated under the name of a medical person, such as a medical person’s license or medical corporation, and is jointly and severally with the person who established the medical institution (Article 57(2)); if such person fails to pay, the Corporation may collect the cost of health care benefit in the same manner as national taxes are disposed of (Article 81(1) and (3) and Article 40(1)1 of the National Health Insurance Act.

Under Articles 33(2), 66(1)2, 87, and 90 of the Medical Service Act, the qualifications for the establishment of a medical institution are limited to a doctor, etc., and it is strictly prohibited to establish a medical institution by a person who is not qualified for the establishment of a medical institution. In light of the contents of each of the above provisions, the medical institution established by a person ineligible for the establishment of a medical institution cannot be a medical care institution under the National Health Insurance Act. Therefore, the medical institution’s provision of medical care benefits under the National Health Insurance Act and claiming the expenses for such medical care is considered to be subject to a disposition of unjust enrichment collection under Article 57 of the National Health Insurance Act because it falls under “influencies or other improper means.” At this time, the title holder of the medical institution becomes the other party to the disposition of unjust enrichment collection under Article 57(1) of the National Health Insurance Act, and the person who actually established and operated the relevant medical institution by borrowing the name is the other party to the disposition of unjust enrichment collection under Article 57(2).

B. Based on its stated reasoning, the lower court is a medical institution established and operated by Plaintiff 2, Plaintiff 3, and Plaintiff 4, who cannot establish a medical institution. Therefore, medical care benefit costs paid to the instant hospital are subject to the disposition of unjust enrichment collection.

The judgment of the court below is judged.In the judgment of the court below, there is no error of misapprehending the legal principles regarding the collection of unjust enrichment under the National Health Insurance Act, or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Whether he/she has deviation from or abused discretion;

A. Whether a certain administrative disposition is a binding act or discretionary act ought to be determined on an individual basis, taking into account both the body and form of a provision that serves as the basis of the relevant disposition, its language and text, the main purpose and characteristics of the administrative sector to which the relevant disposition belongs, and the individual nature and type of the relevant disposition itself, etc. In light of the possibility of determining public interests based on the discretion of an administrative agency, the judicial review on discretionary act does not lead to a court’s independent conclusion, and is required to examine only whether the pertinent disposition deviates from or abused the discretionary authority, and the relevant determination criteria, such as whether there was a violation of the principle of proportionality and equality (see, e.g., Supreme Court Decision 2014Du3702, Oct. 4, 2018).

In a case where a disposition was rendered without weighing the substance and degree of the disadvantage that the other party to the disposition knew that the administrative agency has no discretion, despite having given a certain discretion to the administrative agency to determine the requirements and effects of the disposition, if the relevant administrative agency’s disposition was to be achieved without weighing the substance and degree of the disadvantage that the other party to the disposition took place, this is a non-exercise of discretion, and itself constitutes an unlawful ground for revocation of the relevant disposition due to deviation or abuse of discretion (see, e.g., Supreme Court Decisions 2014Du45956, Aug. 29, 2016; 2017Du38874, Jul. 11, 2019).

The principle of proportionality is the basic principle of the Constitution that naturally derived from the principle of the rule of law, and is applied to all state works (see Constitutional Court Order 92Hun-Ga8, Dec. 24, 1992). The means to achieve administrative purposes should be effective and appropriate in the achievement of that purpose, and should bring about a minimum infringement as much as possible, and should not be able to realize the public interest in which the infringement resulting from the introduction of the means is intended (see Supreme Court Decision 96Nu10096, Sept. 26, 1997). In particular, in the case of a disciplinary measure taken on the ground of the other party’s violation of his/her duty, the relation should be acknowledged as a whole in light of the substance of the breach of duty and the disciplinary measure, even if it is not strictly between the imposition of the duty and the determination of the duty, and in cases where the violation of the duty is obviously invalidated by social norms, it should be deemed that the discretionary power is unlawful, such as abuse and abuse of the discretionary authority (see Supreme Court Decision 2098Da298,298,298.

B. Article 57(1) of the National Health Insurance Act provides that “The Corporation shall collect all or part of the amount equivalent to the expenses for insurance benefits or insurance benefits from a person who has received insurance benefits or a medical care institution that has received insurance benefit costs by deceit or other fraudulent means.” The foregoing provision aims to ensure the soundness of the finance of health insurance and medical benefits through the maintenance of a desirable benefit system by preventing a medical care institution from claiming reimbursement of expenses for benefits by unjust means (referring to Constitutional Court Order 2010Hun-Ba375, Jun. 30, 201). However, as a medical care institution may result in a failure to receive reimbursement of the expenses for medical care benefits already provided due to the collection of unjust enrichment, it is infinite nature.

Meanwhile, the former National Health Insurance Act provides that only a medical institution that received insurance benefit costs may collect unjust enrichment. However, Article 57(2) of the National Health Insurance Act newly established on May 22, 2013 provides that “Where an institution that received insurance benefit costs by deceit or other unjust means pursuant to paragraph (1) falls under any of the following subparagraphs, the Service may require the person who established the relevant medical institution to jointly and severally pay money collectible under the same paragraph.” Meanwhile, Article 33(2) of the Medical Service Act provides that “a person who, in violation of subparagraph 1, is unable to establish a medical institution under the name of a medical person, such as a license or medical corporation, to collect unjust enrichment from a non-medical person.” On the other hand, Article 33(2) of the Medical Service Act provides that “the person who established and operated a non-medical institution shall be punished by imprisonment with labor for not more than 5 years, and the person who established and operated the medical institution shall be employed by the founder of the medical institution without labor for the establishment and operation of the institution.”

Considering the contents of each provision of the above law, stay and legislative purport, legal nature of collecting unjust enrichment, etc., it is reasonable to view that the collection of unjust enrichment under Article 57(1) and (2) of the National Health Insurance Act is an act of discretionary discretion. Furthermore, collecting the full amount of the cost of medical care benefits provided by a medical institution (such as whether a medical person with qualification has implemented the benefits of medical care, whether it falls under the amount of medical care benefits, whether it is appropriate level or beyond it, and whether it constitutes so-called excessive medical treatment) and the amount of the cost of medical care benefits and the cost of medical care benefits provided by the medical institution, the role of a non-medical person who established and opened a medical institution in the course of establishment and operation of a medical institution, degree of illegality, ownership of the performance of the medical institution, degree of interest gained by a non-medical person and an establisher of a non-medical institution, and other cooperation in investigations, barring any special circumstance, can be deemed to have violated the principle of proportionality and abuse discretionary power.

C. Nevertheless, without examining the above circumstances, the lower court determined that each of the instant dispositions, which collected the full amount of medical care benefit costs from the account holder or non-medical person founders, does not violate the principle of proportionality. In so doing, the lower court erred by misapprehending the principle of proportionality, the legal doctrine on deviation and abuse of discretionary power, thereby adversely affecting the conclusion of the judgment. The Plaintiffs’ ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik

Justices Kwon Soon-il

Justices Park Jung-hwa

Jeju High Court Justice Kim Jong-soo