(영문) 서울고등법원 2014.7.24.선고 2014나20426 판결

1. The part against the defendant in the judgment of the court of first instance against the defendant shall be revoked, and the plaintiff's claim against the defendant in the above revoked part shall be dismissed.

2. The Plaintiff is responsible for total costs of litigation between the Plaintiff and the Defendant.

Purport of claim and appeal

1. Purport of claim

As to the plaintiff 131, 188, 120 won and 1,958,860 won among them, from January 1, 2003:

6,055, 560 won from January 1, 2004, 14, 476, 980 won from January 1, 2005:

35, 645, 540 won from January 1, 2006, 29, 887, 750 won from January 1, 2007:

16, 509, 480 won from January 1, 2008, 25, 891, and 220 won from January 1, 2009:

762, 730 won per annum from April 1, 2009 to the service date of a copy of each complaint of this case, 5% per annum;

It shall pay 20% interest per annum from the following day to the date of full payment.

2. Purport of appeal

Paragraph 1 of this Article shall also apply.

Reasons

1. Basic facts

(a) The relationship between the parties;

1) According to Article 40 (1) 1 of the former National Health Insurance Act (amended by Act No. 9386, Jan. 30, 2009; hereinafter the same shall apply), the Plaintiff is a medical care institution that is a medical care institution under Article 9 (1) 1 of the former Medical Care Assistance Act (amended by Act No. 9932, Jan. 18, 2010; hereinafter referred to as the "Medical Care Assistance Act"), who is a medical care institution under Article 9 (1) 1 of the former Enforcement Decree of the Medical Care Assistance Act (amended by Act No. 9932, Jan. 18, 201; hereinafter referred to as the "Medical Care Assistance Act"), and the Defendant is an insurer of the first instance court and the National Health Insurance Corporation (hereinafter referred to as the "Health Insurance Corporation"), who has jurisdiction over the location of the medical care institution under Article 3 of the Enforcement Decree of the Medical Care Assistance Act, and thus, is entitled to deposit the cost of health care benefits under Article 25 of the National Health Insurance Act.

B. The payment procedure for the medical care benefit under the Health Insurance Act and the medical care benefit costs under the Medical Care Assistance Act is 1). After the insured visited and receives medical care from a medical care institution, the health care institution makes a request for review of the medical care benefit costs to the Review and Assessment Service. The Review and Assessment Service, which was enacted by delegation under Article 39(2) and (3) of the Health Insurance Act, shall meet the former Rules on the Standards for the Medical Care Benefits under the National Health Insurance Act (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 87 of Jan. 13, 2009; hereinafter the same shall apply) and the detailed rules on the criteria and method for the medical care benefits publicly notified by the Minister of Health, Welfare and Family Affairs (hereinafter referred to as the "the foregoing rules and public notice") and notifies the results of the review to the health care institution and the public health insurance organization of the results of the review after determining the amount to be paid.

2) Even in the case of expenses for benefits under the Medical Care Assistance Act, as seen earlier, the Review and Assessment Service is entrusted with review duties, and the payment procedures for the above insurance benefit costs by the Health Insurance Corporation are the same as those for the payment of the above insurance benefit costs. The criteria for review by the Review and Assessment Service shall be governed by Article 5(2) and (3) of the Regulations on the Standards for Medical Care Benefits in the National Health Insurance under Article 6 of the Enforcement Rule of the Medical Care Assistance Act and attached Table 1(2) and (3) of the Regulations.

C. If the claim for medicine costs is judged to be in violation of the statutory standards, Article 45(1) of the former Medical Insurance Act (amended by Act No. 5854, Feb. 8, 199); Article 44(1) of the former National Medical Insurance Act (amended by Act No. 5854, Feb. 8, 199; hereinafter referred to as the “former Medical Insurance Act”); Article 45(1) of the former Medical Care Act (amended by Act No. 5854, Feb. 1, 199; hereinafter referred to as the “former Medical Care Act”); Article 44(1) of the former Medical Care Act (amended by Act No. 5854, Feb. 8, 199; hereinafter referred to as the “former Medical Care Benefit Insurance Act”); and Article 44(1) of the former Medical Care Benefit Act (amended by Act No. 52(1) of the Health Insurance Act; hereinafter referred to as the “former Medical Care Benefit Act”).

2) After the implementation of pharmaceutical medicine business, the provision of medical care benefits and medical care benefits (hereinafter “medical care benefits, etc.”) was conducted from around July 200, after the pharmaceutical pharmaceutical business was divided into medical treatment of medical institutions and the preparation of pharmacies. As a result, a medical institution that received medical care benefits, etc. equivalent to pharmaceutical expenses was not a medical institution in question but a pharmacy. However, the Health Insurance Corporation still collected medical care benefits, etc. equivalent to the medical care benefits, etc. paid by a pharmacy under Article 52(1) of the Health Insurance Act and Article 23(1) of the Medical Care Assistance Act when it is notified that the issuance of prescriptions by a medical institution violates the medical care benefits standards, such as transfer of pharmaceutical distribution business.

(d) Relationship, such as claims for medical care benefit costs, collection disposition, etc. after the medical branch business is conducted;

The relationship between the issuance of prescriptions after the implementation of pharmaceutical products, the claim for medical care benefit costs (medical and pharmaceutical expenses), the reduction, and the collection disposition is as shown below. As such, the Health Insurance Corporation (not only in this case but also in the medical expenses received by medical institutions) and the pharmaceutical expenses received by pharmacies was reduced or collected from medical institutions.

E. According to the judgment of the purport that the act of collecting medicine expenses to a medical institution should be revoked illegally by filing a lawsuit disputing the collection disposition of medicine expenses of the Health Insurance Corporation (Supreme Court Decision 2005Du7037 Decided September 29, 2005). As examined below, the above collection disposition is null and void as it is significant and obvious (Supreme Court Decision 2006Da7037 Decided September 29, 2006).

8. The decision became final and conclusive, which became final and conclusive.

F. Meanwhile, from November 2001 to March 7, 2009, the Plaintiff issued each prescription for beneficiaries under the Medical Care Assistance Act from July 2002 to March 2009 with respect to the health insurance subscribers and their dependents, and from around July 2002 to March 2009, the Review Board issued a request for review to the Review and Assessment Service. The Review and Assessment Service notified the Health Insurance Corporation of the result of review that the doctors belonging to the Plaintiff should reduce the amount of prescription exceeding the scope permitted by the Commissioner of the Korea Food and Drug Administration in violation of the medical care benefit standard when issuing the original prescription. Accordingly, the Health Insurance Corporation notified the Plaintiff of the purport that it will collect the amount by deducting the drug cost that was reduced from the Review and Assessment Service when paying the next medical care benefit cost, etc., and provided the Plaintiff with the collection disposition on the medical care benefit cost on November 7, 2001 until March 2009.

G. Under the foregoing method, the Health Insurance Corporation’s refusal to pay to the Plaintiff out of the expenses for medical benefits from July 2002 to March 2009 is the sum of KRW 131,18,120 (no one shared by the Plaintiff).

[Grounds for Recognition] In the absence of dispute, Gap evidence Nos. 1, 5, Eul evidence Nos. 1, 5, and 6 (the number of evidence Nos. 1, 5 and 6 includes the number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the claim against the defendant

A. Determination on this safety defense

In the event that a disposition taken by the Health Insurance Corporation against the plaintiff to recover the medical expenses for the outpatients according to the review results of the Health Insurance Corporation, the health insurance Corporation did not pay the medical expenses equivalent to the amount recovered by the Health Insurance Corporation. Thus, the defendant is merely an internal cost-bearing person of the Medical Care Fund. Since the part of the claim against the defendant in the lawsuit in this case asserted that the part of the claim against the defendant is illegal against the non-qualified person, the defendant's standing to be the defendant in the lawsuit in performance, and the issue of whether the defendant is a performance-bearing person is actually the defendant's standing to be the defendant, and therefore the decision on the propriety of the claim is added (see Supreme Court Decision 95Da18451 delivered on November 28, 1995). The defendant's above assertion is without merit.

B. The plaintiff's assertion

Since the Health Insurance Corporation's disposition to recover unfair medical benefits costs is null and void, the defendant, the managing body of the Medical Benefits Fund, must return the amount equivalent to the medical benefits cost recovered, as unjust enrichment

C. Determination

Article 5(1) of the Medical Care Assistance Act provides that duties related to medical benefits shall be performed by the head of a Si/Gun/Gu (referring to the head of an autonomous Gu; hereinafter the same shall apply) having jurisdiction over the residence of an eligible recipient. Article 11 of the Medical Care Assistance Act provides that an institution providing medical benefits may claim reimbursement of expenses incurred in providing benefits from the Medical Care Fund to the head of a Si/Gun/Gu, and the head of a Si/Gun/Gu who is notified by an institution examining expenses incurred in providing medical benefits shall, without delay, pay the expenses incurred in providing benefits to the institution providing medical benefits pursuant to the contents thereof. Article 23 provides that the head of a Si/Gun/Gu shall collect all or part of the amount equivalent to the expenses incurred in providing benefits by fraud or other improper means from the institution providing medical benefits as unjust enrichment, and if the institution providing medical benefits fails to pay unjust enrichment, he/she may demand payment by a specified deadline, and if a person who received a demand fails to pay unjust enrichment by the specified deadline, it may be collected in the same manner as delinquent local taxes are collected.

In light of the contents, structure, etc. of the above provisions of the Medical Care Assistance Act, when a medical care institution that received a collection disposition based on Article 23(1) of the Medical Care Assistance Act from the head of a Si/Gun/Gu and received such a collection disposition from the head of a Si/Gun/Gu claims a return of unjust enrichment equivalent to the charges collected, the other party to the claim shall be the Si/Gun/Gu to which the head of the Si/Gun/Gu who received the said collection disposition belongs, and shall not claim a return of unjust enrichment against a third party who is not the Si/Gun/Gu, and it shall not be deemed to have been able to claim a return of unjust enrichment from the expenses to be paid by the Health Insurance Corporation to the medical care institution that received a collection disposition based on Article 23(1) of the Medical Care Assistance Act and Article 20(2)1 of the Enforcement Decree of the Medical Care Assistance Act, and only the amount equivalent to the charges collected based on the above collection disposition is deducted from the medical care expenses to be paid to the medical care institution under Article 23(1) of the Medical Care Assistance Act.

D. Sub-committee

Therefore, the claim for return of unjust enrichment of this case against the defendant who is not a Si/Gun/Gu, which made a collection disposition based on Article 23 (1) of the Medical Care Assistance Act, is without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim against the defendant shall be dismissed as it is without merit, and since the part against the defendant among the part against the defendant in the judgment of the court of first instance against the defendant is unfair, the defendant's appeal shall be accepted, and the part against the defendant shall be revoked, and the plaintiff's claim against the defendant corresponding to the above revoked part shall be dismissed. It