(영문) 서울중앙지방법원 2017.3.30.선고 2016나81057 판결

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

2. Based on the conjunctive claim added at the trial before remand, the defendant shall pay to the plaintiff 1,635,302 won with 5% interest per annum from May 18, 2012 to March 30, 2017, and 15% interest per annum from the next day to the date of complete repayment.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The defendant paid to the plaintiff 7,37,549 won and 20% interest per annum from the next day of the delivery of a copy of the complaint of this case to the day of complete payment. The plaintiff first filed a claim for damages based on the original tort, and added the claim for restitution of unjust enrichment based on the subrogation right of the creditor at the trial prior to remand.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

Reasons

1. Basic facts

A. The plaintiff is an insurer who entered into an insurance contract with the insured as listed in the attached Table 10 (hereinafter referred to as the "insureds of this case"). The defendant is a doctor belonging to the Z Hospital, which is the hospital specialized in spine and cirrization (hereinafter referred to as the "the hospital of this case"), and the operator of the above hospital. The insureds of this case were exposed to kneee-gling and damage to human body, etc. and were diagnosed in half-yearly or half-yearly malute fever (S83.2). The defendant claimed for non-benefit medical expenses related to the above MRI diagnosis, and received 11,160,000 won from the insured, such as the sum stated in the MRI's reimbursement in the attached Table 10. The plaintiff was diagnosed as the insurance money of this case, and the amount equivalent to the insurance money of this case.

D. Meanwhile, according to the criteria for calculating the TRI medical care benefits notified by the Ministry of Health and Welfare, TRI, in principle, does not correspond to medical care benefits if it does not fall under the eligibility and calculation criteria for benefits for each disease. However, on October 1, 2010, the notice was changed by the Ministry of Health and Welfare No. 2010-75 of the Ministry of Health and Welfare’s notification and changed to the TRI medical care benefits due to acute blood transfusions, magrosis infection, knee-free salt, and human damage (e.g., the e., the e., the e.g.

[Ground of recognition] Unsatisfy, Gap evidence 1, Gap evidence 70 to 97, and court of first instance

result of fact inquiry to the Ministry of Health and Welfare, the purport of the whole pleading

2. Summary of the parties’ assertion

A. The plaintiff's assertion

1) When operating the instant hospital, which is a medical care institution under the National Health Insurance Act, the Defendant received KRW 11,160,000 in total by filing a claim for the amount of non-benefit diagnosis on October 4, 2010 to AA hospitalized in order to treat the left-hand fladr fever on the half-month side of the hospital, and claiming for the amount of 400,000 won as indicated in the attached Table 10, such as the diagnosis fees, for which the Defendant provided the instant insured hospitalized in the instant hospital for 30 times as shown in the attached Table 10, and claiming for the amount of non-benefit diagnosis for 30,00 won as the medical care fees. However, the Defendant’s claim for the amount of non-benefit medical care fees for the flae fladrosis disease is unlawful as it violates the medical care benefit standard, and the Plaintiff’s claim for the amount of non-benefit benefits and the amount of compensation for delay to the Plaintiff.

2) Even if the Defendant’s implementation of MRI is caused by knee-free or chronic diseases of the insured, and thus does not constitute medical care benefits, the Defendant issued a false diagnosis or opinion stating “S83.2” that means kne-e-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe

3) If the Defendant did not bear the Plaintiff’s liability for damages based on the tort, the Plaintiff’s right to claim for the return of the insurance proceeds against the insured as the preserved claim shall be exercised in subrogation of the Defendant’s claim for return of unjust enrichment or damage claim

B. The defendant's argument

1) The Defendant’s assertion of the Defendant’s tort liability under such premise is erroneous, although the Defendant did not directly treat the insured in the instant case.

2) Even if the Defendant’s tort liability is recognized, the victim is not the Plaintiff but the Plaintiff, and thus, it is unreasonable for the Plaintiff to seek direct compensation against the Defendant.

3) The Plaintiff’s claim in this case was practically subrogated by the insurer. Since the loss medical insurance contract between the Plaintiff and the insured constitutes a personal insurance, it should be proved that there was a special agreement on subrogation between the Plaintiff and the insured under the proviso of Article 729 of the Commercial Act to claim the insurer’s subrogation right. It is unreasonable to exercise the Defendant’s right of direct subrogation without such proof.

3. Judgment as to the main claim

A. Whether tort liability is recognized due to violation of the standards for MRI medical care benefit

1) Relevant precedents

The statutes governing national health insurance include: (a) all types of medical care benefits; (b) the standard and method for applying the standard and method of medical care benefits are subject to the former Regulations on the Standards for Medical Care Benefits; and (c) the so-called statutory non-benefit treatment provided for in Article 9 [Attachment 2] of the former Regulations on the Standards for Medical Care Benefits are subject to the coverage of medical care benefits; and (c) it is interpreted that the so-called medical care benefit provided for in Article 9 [Attachment 2] of the former Rules on the Standards for Medical Care Benefits is excluded from the coverage of health insurance; and (d) the cost burden is limited to the part of the health care institution and the insured, etc. In principle, health care institution provides health care benefit in accordance with the standard and procedure prescribed in the Acts and subordinate statutes on the standards for recognition of medical care benefits; and (e) the insurer and the insured, etc. shall comply with the standard and procedure prescribed in the above standards and procedure; and (e) if the medical care institution arbitrarily receives medical care benefit from the insured, etc. without following such standard and procedure, it constitutes a violation of Article 5(1).

Even in cases where a medical care institution conducts voluntary non-benefit treatment outside the framework of the National Health Insurance, and receives the expenses from a subscriber, etc., ① under the relevant Acts and subordinate statutes, which was enforced at the time of such treatment, including: (a) the procedure, such as incorporation of the medical care benefit subject to or non-benefit into the National Health Insurance framework or reasonably adjusting the relevant medical care benefit costs, is not provided; (b) even if such procedure is provided, it is difficult to deem that the medical care institution avoided it in light of the details and urgency of the non-benefit treatment procedure along with the content and urgency of the procedure, the required period required for such procedure, and the process of such procedure; (c) it is necessary for the medical care institution to receive the medical care benefit subject to the medical care benefit recognition standards, etc.; and (d) even if the medical care institution provided prior explanation of its contents and expenses to the subscriber, etc. in advance, it cannot be deemed that the medical care institution’s arbitrary non-benefit treatment at its own discretion and without any justifiable reason should prove it (see, e.g., Supreme Court en banc Decision 2017Du368Du.

2) The nature of tort liability

A) Determination on the illegality of the Defendant’s act

As seen earlier, according to the RoI’s health care benefit calculation criteria notified by the Ministry of Health and Welfare, the RoI does not constitute health care benefit if it does not fall under the eligibility and calculation criteria for each disease. However, on October 1, 2010, the change of the above notification made by the Ministry of Health and Welfare (i.e., acute typism, stematitis, kneutism, kneemanism, and human injury (i.e., e., e., reverse e., e., RoI’s injury caused by the health care institution to treat the patient’s disease), but the MaI’s injury from October 1, 2010 was changed into the health care benefit under the National Health Insurance Act. As such, the medical care benefit and the statutory benefit calculation criteria stipulate in the Health Care Benefit Standards and the Ministry of Health and Welfare, and the founder of the MaI’s act of non-medical institution should be easily notified to the patient or his/her guardian of the medical care benefit costs.

On the other hand, the defendant did not directly treat the insured in this case, and thus, it is unreasonable to claim tort liability against the defendant. However, the defendant's assertion is unreasonable since it is clear that the defendant is the defendant, even if he had an intention to treat the insured in this case, he issued a false receipt of medical expenses corresponding to the legal non-benefit for medical care benefits and received medical expenses corresponding thereto, and even if he had an intention to treat the insured in this case, he is the defendant. Therefore, the defendant's assertion is without merit.

B) Whether there exists a proximate causal relationship between the Defendant’s illegal act and the Plaintiff’s damage, the Plaintiff paid all of the medical expenses for non-benefit to the insured of this case. Accordingly, the Plaintiff suffered losses from additional payment of insurance money equivalent to the difference between the amount of medical care benefit patients and the amount of non-benefit, which would have not been originally paid.

However, even if a medical care institution under the National Health Insurance Act prepares by negligence a medical care institution’s demand for medical care benefits amounting to non-benefit under the National Health Insurance Act, it cannot be deemed that the medical care institution should always be liable for damages against a third party who has transacted with the content of such demand for medical care benefits. In order to recognize liability for damages, it should be recognized that there is a proximate causal relation between the Defendant’s breach of duty of care and the Plaintiff’s loss incurred to the third party. Furthermore, determination of proximate causal relation should comprehensively take into account not only the probability of occurrence of results, but also the purpose and protection interest of the Acts and subordinate statutes and other action regulations imposing the duty of care, the form of harmful act, the nature of the benefit from infringement, the degree of damage, etc. (see, e.g.

As seen earlier, the Defendant: (a) prepared and delivered a written claim for medical expenses stating that the instant insured was eligible for medical care benefits; and (b) received such medical expenses; and (c) constitutes a violation of the medical contract and the obligations under the National Health Insurance Act and subordinate statutes related to the National Health Insurance Act and subordinate statutes with respect to the instant insured; (b) however, the Defendant merely concluded a medical contract with the insured; and (c) cannot be deemed as bearing any obligation under the medical contract with respect to the Plaintiff who entered into an insurance contract with the insured, or breached such obligation. Furthermore, it is difficult to view that the provision that the medical care benefits institution cannot claim medical expenses corresponding to the medical care benefits from the patient or

Examining these circumstances in light of the legal principles as seen earlier, even if the Defendant erred in failing to perform his/her duty of care while claiming medical expenses for the insured, there is no proximate causal relation between the error and the damage incurred to the Plaintiff.

3) Sub-determination

Therefore, the above main claim that the plaintiff seeks damages from a direct violation of the medical care benefit standard against the defendant is without merit.

B. After recognizing liability for tort caused by issuance of a false medical certificate or medical opinion, the Plaintiff asserts that the Plaintiff suffered loss by the Plaintiff by issuing a false medical certificate or medical opinion. Thus, the Plaintiff did not specify those who entered into an indemnity medical insurance contract due to injury, or those who were paid insurance money under the disease classification code S83.2 in the medical certificate or medical opinion certificate, and even if a chronic disease occurs, the Plaintiff can be said to have caused injury (the Plaintiff is deemed to have maintained MF photographs under the status of 3 to 1 months) and thus, it cannot be readily concluded that the Plaintiff written SS83.2 "S83.2" of the disease classification code in the event of a chronic damage subject to non-payment. Thus, this part of the Plaintiff’s assertion also does not have any justifiable reason without further review.

4. Judgment on the conjunctive claim (the plaintiff's subrogation claim)

A. Formation of an obligation to return unjust enrichment

As seen earlier, the Defendant, in violation of the medical contract and the obligations under the National Health Insurance Act and the relevant Acts and subordinate statutes, performed MO to treat the insured in violation of the above Ministry of Health and Welfare as medical care benefits, knee-offing and knee-offing damage due to credit, etc., and was paid medical expenses for this case’s insured. The Plaintiff also received the amount equivalent to the above MO diagnosis fees from the Plaintiff as non-paid benefits. Accordingly, the Defendant, without any legal ground, obtained benefits equivalent to the difference between the non-paid amount and the patient’s share of the MOI’s medical care benefits. Therefore, the Defendant, without any legal ground, was entitled to return unjust enrichment equivalent to the above difference to the insured, and the insured also obtained benefits equivalent to the above difference without any legal ground. Therefore, the Plaintiff is obligated to return unjust enrichment to the Plaintiff.

B. On the premise that each of the above requirements for the exercise of subrogation right is established, the Plaintiff’s conjunctive claim for return of unjust enrichment against the insured in this case as the preserved claim for return of unjust enrichment against the Defendant. Accordingly, the Defendant asserts that the Plaintiff failed to prove the requirements of the insured’s insolvency in vicarious exercise of the right to return unjust enrichment against the Defendant by the insured, and thus, the Plaintiff’s conjunctive claim is groundless.

However, in order to preserve the debtor's claim, the creditor can exercise the debtor's right on behalf of the debtor. The creditor's right to preserve is closely related to the debtor's right to exercise the debtor's right on behalf of the debtor. If the creditor's right to exercise his/her right on behalf of the debtor is likely to be unable to obtain the complete satisfaction of his/her claim unless he/she exercises the debtor's right on behalf of the debtor, and it is necessary to exercise the debtor's right on behalf of the debtor in order to ensure the effective and proper implementation of his/her claim, barring special circumstances, such as the exercise of the creditor's right on behalf of the debtor's right of subrogation should be able to exercise the debtor's right on behalf of the debtor (see, e.g., Supreme Court Decision 9Da38699, May 8, 2001). In this case, the above claim for return of unjust enrichment against the insured who the plaintiff intends to preserve by subrogation of the creditor's right on behalf of the debtor is closely related to the above claim for restitution of the defendant's property.

Therefore, the Defendant is obligated to pay unjust enrichment to the Plaintiff who subrogated the claim for return of unjust enrichment by the insured.

C. Determination on the scope of return of unjust enrichment

Furthermore, there is no dispute between the parties who filed a claim for medical expenses for non-benefit diagnosis against the above patients, even though the instant hospital operated by the Defendant conducted the MIM diagnosis as the medical care benefit object for AK, AL, AM, N, AM, Q, AO, and AP from among the instant insured workers.

Since there is no evidence to acknowledge that the MIM diagnosis for the remaining insured except the above recognized insured is a medical care benefit beneficiary, the remainder of the insured except the above recognized insured. The plaintiff's assertion on the premise that the MIM diagnosis for the insured is a medical care benefit beneficiary is without merit.

Therefore, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff, who subrogated the above recognized insured’s claim for return of unjust enrichment, the total amount of KRW 1,635,302 (271,859, AL, AM, N, AO, and AP, KRW 272,896, and delay damages, etc.) in the attached Table 10, which is the difference between the payment amount of the MRI’s non-payment amount and the amount of the patient’s share in the MRI medical care benefit.

D. Judgment on the defendant's assertion

On the other hand, the defendant asserts that the plaintiff's assertion added in the preliminary trial prior to the remand constitutes a means of attack and defense against actual time limit.

The court may reject the case where it deems that the parties intentionally or by gross negligence cause delay in the conclusion of the lawsuit by submitting the means of offence or defense late, but it cannot be deemed that delay in the conclusion of the lawsuit, if the continuation of the trial date is required, and the deliberation of the means of offence or defense can be completed within the scope of the continuance date, or the contents of the means of offence or defense are included within the scope of the litigation materials which have already completed the trial, and in such a case, it cannot be dismissed by deeming that it is the means of offence or defense within the actual time limit (see Supreme Court Decision 95Nu509 delivered on March 22, 196). Accordingly, in this case, the court did not examine any additional evidence in the trial before remanding the case, related to the allegations added by the plaintiff as stated in the aforementioned conjunctive claim, and since the pleading was concluded on the third day of pleading before remanding the aforementioned conjunctive claim, it cannot be deemed that the conclusion of the lawsuit was delayed due to the addition of the aforementioned conjunctive claim by the plaintiff. Therefore, the defendant'

E. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiff 1,635,302 won and damages for delay calculated at each rate of 5% per annum under the Civil Act until March 30, 2017, which is the date of the ruling of the court below after remanding the case where it is deemed reasonable for the defendant to dispute as to the existence of the obligation or the scope of the obligation, as requested by the plaintiff, from May 18, 2012, the day following the delivery date of the copy of the complaint of this case to the day of full payment.

5. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit. The plaintiff's primary claim added in the trial prior to remand is justified, and the remainder is dismissed as it is without merit. Since the part against the defendant who partially accepted the main claim in the judgment of the court of first instance is unfair, the plaintiff's primary claim corresponding to the revoked part shall be revoked, and the plaintiff's primary claim corresponding to the revoked part shall be dismissed. The plaintiff's order to pay the money as above and the plaintiff's other conjunctive claim shall be dismissed. It is so decided as per Disposition.

Judges

The presiding judge, judicial police officer;

Judges Hwang Sung-sung

Judges Song Jae-soo

Note tin

1) In addition, the defendant argues whether the plaintiff's claim of this case constitutes the exercise of the insurer's subrogation right under the Commercial Act.

However, it is evident by the Plaintiff’s assertion that the claim sought by the Plaintiff in this case is not based on the said insurer’s subrogation right.