(영문) 서울행정법원 2017.11.2.선고 2017구합52863 판결

1. On January 13, 2016, the part of KRW 19,485,330 of the disposition to recover expenses for long-term care benefits rendered by the Defendant to the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details and details of the disposition;

A. The Plaintiff is establishing and operating a long-term care institution in Jeju City B (hereinafter “instant medical care institution”).

B. From December 2012 to July 2015, the Plaintiff sent two caregivers to the recipients C, D, E, F, G, and H (hereinafter “beneficiary C, etc.”) and provided them with visiting bathing services. The said two caregivers, while providing the said recipients with visiting bathing services, together with “the preparation for bath, taking in bath, taking in clothes, and taking the clothes,” but only “the body cleaning agent” did not act together at the request of the said recipients, and only one caregiver, the said recipients and the same-sex caregiver, the same.

C. Jeju Mayor: (a) conducted on-site investigations with respect to the instant medical care institution during the period of investigation from November 3, 2015 to November 6, 2015, setting the period of investigation from December 12, 2012 to September 2015.

D. On January 13, 2016, the Defendant notified the Plaintiff of a redemption decision of KRW 19,872,560, total expenses for long-term care benefits based on Article 43(1) of the Long-Term Care Insurance for the Aged, on the ground that the Defendant received KRW 19,872,560 (the total expenses for long-term care benefits, including a body cleaning agent, which was provided by two caregivers, by unfairly claiming KRW 19,485,330, which was provided by two caregivers, even though the Plaintiff provided some processes, such as “the Plaintiff’s body cleaning agent,” which was provided by two caregivers, and was paid by claiming for medical care benefits.” (hereinafter “the instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 4-12, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Relevant statutes;

The entries in the attached statutes are as follows.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the public notice on the criteria for provision of the relevant long-term care benefits and the criteria for calculation of expenses for benefits, the term "the process of body cleaning shall be provided by two or more caregivers" is unconstitutional and ineffective by infringing on the beneficiary's personal rights and fundamental rights, such as privacy and freedom of privacy. In addition, the provision is unconstitutional and invalid by prescribing the criteria for provision of long-term care benefits unconstitutionally, and it is illegal and ineffective beyond the delegation scope of the Enforcement Rule of the Act on Long-Term Care Insurance and the Enforcement Rule of the same Act.

Therefore, the instant disposition, which was made based on the invalid notification provision, should be revoked as it is unlawful.

B. Determination

1) Whether a beneficiary’s privacy, freedom, and general personality rights are violated

A) The limitation of fundamental rights

(1) Article 39(3) of the Act on Long-Term Care Insurance for the Aged and Article 32 of the Enforcement Rule of the same Act provides that the former Act on Long-Term Care Expenses, etc. for Long-Term Care Benefits (Article 2011-137 of the Ministry of Health and Welfare’s notification, Article 201-153 of the Ministry of Health and Welfare’s notification, and Article 201-153 of the Ministry of Health and Welfare’s notification, etc.), Chapter II and Article 2-II and 5 of the same Act provide that “The process of physical cleaning shall be provided by two or more caregivers” (Article 2014-97 of the Ministry of Health and Welfare’s notification, hereinafter the same shall apply), and Article 2-3(b) of the former Public Notice on the criteria for the provision of long-term care benefits

(2) The provision of this case, as a social security benefit, provides that the criteria for the provision of medical care benefits and the criteria for the calculation of medical care benefits for 's visit bath service' to a beneficiary entitled to a certain long-term care benefit who is entitled to a home care benefit, should be provided by 2 or more caregivers, thereby compelling two or more caregivers to be exposed to their own body during the process of receiving 'the body cleaning service'. The provision basically belongs to the area where social security benefits are formed under the system of legal order, but the provision of this case is basically within the area where the social security benefits are formed, and thus, it causes a sense of shame by forcing another person to feel a sense of shame in the process of concrete realization of the right to social security benefits, so it entails restriction on fundamental rights, such as personal rights derived from the confidentiality and freedom of his privacy (Article 17 of the Constitution) and human dignity and value (Article 10 of the Constitution). Therefore, the State’s excessive restriction on the right to social security benefits from the perspective of the right to receive social security benefits.

B) Whether the infringement of privacy, freedom, and general personal rights is infringed

(1) The purpose of the instant notification is to ensure the physical safety of the recipient, which is to compel more than two caregivers to provide the process of a visit bathing service. In addition, it can be seen that providing the body cleaning process by more than two caregivers rather than providing the body cleaning process to the recipient. Therefore, such enforcement is more appropriate to achieve the purpose of the instant notification.

(3) However, the notice provision of this case violates the minimum infringement principle of fundamental rights for the following reasons.

① From among visiting bathing services, a beneficiary is not only exposed to his/her body in the process of making a cleaning agent, but also left to his/her body in his/her own condition. Even if it is inevitable for a beneficiary to be provided with bathing services, as much as possible, the exposure of his/her body has special trust with the beneficiary, and the other party to be exposed to his/her body is same, and the number is less than that, the degree of infringement on the beneficiary’s privacy, freedom of privacy, or general personality rights may also be reduced. In particular, considering that a beneficiary of bathing services is a person who needs another person’s assistance in daily life due to mental or physical disorder or dementia patient (Article 15(2) of the Act on Long-Term Care Insurance for the Aged and Article 7(1) of the Enforcement Decree of the same Act and Article 7(1) of the Act on Long-Term Care Insurance for the Aged and a long-term care institution without clearly delivering his/her own will and is likely to cause a sense of shame caused by exposure, the State needs to minimize the infringement of the beneficiary’s body’s privacy or general moral rights.

② According to Article 17(1) of the Act on Long-Term Care Insurance for the Long-Term Care of the Aged, beneficiaries of long-term care insurance need to obtain long-term rating and approval for long-term care. Article 7(1) of the Enforcement Decree of the Act on Long-Term Care Insurance for the Long-Term Care of the Aged classifys long-term care class 1 through 5 according to the degree of other people’s assistance and the points of recognition of long-term need. Article 39(3) of the Act on Long-Term Care Insurance for the Long-Term Care of the Aged and Article 32 of the Enforcement Rule of the Act on Long-Term Care Insurance for the Long-Term Care for the Long-Term Care of the Aged (Notice of the Ministry of Health and Welfare No. 2014-97 of the Ministry of Health and Welfare) provides that beneficiaries of long-term care class 1 or 2 may receive home care benefits or facility benefits; accordingly, beneficiaries of home care services falling under classes 3 through 5 may receive home care benefits.

③ 한편, 방문목욕 서비스의 제공방법으로 '수급자 가정 내 목욕'과 '요양기관 제공차량 내 목욕'이 있다. '수급자 가정 내 목욕은 각 가정의 목욕 시설이나 환경이 다양하여 몸씻기 과정의 안전성을 일률적으로 말할 수 없을 것이고, '요양기관 제공 차량 내 목욕은 안전을 특별히 고려한 욕조 등 시설을 갖추고 있다.

4. Moreover, a caregiver capable of providing visiting bathing services is also a family member of the recipient.

⑤ 이와 같이 방문목욕 서비스 수급자의 인지능력이나 신체활동 능력이 다양한 점, 방문목욕 서비스의 제공방법에 따라 안전성에 차이가 있는 점, 나아가 요양보호사의 수급 여건 등을 고려하면, 요양보호사 1인이 수급자에게 '몸씻기'를 제공하여도 그의 안전을 해치지 않으면서 방문목욕 서비스를 충분히 제공하는 경우가 있어 보인다. 6 그럼에도 이 사건 고시 규정은 이런 사정들을 고려하지 않고, 일률적으로 2인 이상의 요양보호사로 하여금 몸 씻기 과정을 수행하도록 강제함으로써 수급자가 몸 씻기 과정에서 2인 이상의 타인에게 자신의 알몸을 완전히 노출하고 그 상태로 2인 이상의 타인의 손에 맡기도록 규정하고 있다.

(3) Therefore, the instant public notice provision violates the principle of excessive prohibition, and thus is unconstitutional and null and void by infringing the beneficiary’s privacy, freedom, and general personal rights.

2) Sub-committee

The instant disposition based on the instant notice provision, which is unconstitutional or invalid, is unlawful as there is no ground for law.

4. Conclusion

The claim of this case is reasonable, and it is so accepted as per Disposition.