School Foundation and Tol Private Teaching Institute (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

The Minister of Health, Welfare and Family Affairs and one other (Law Firm Dong-in et al., Counsel for the plaintiff-appellant)

September 28, 2010

Seoul Administrative Court Decision 2008Guhap9522, 2008Guhap14807 decided Oct. 29, 2009

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Claim: The imposition of a penalty surcharge of KRW 9,690,443,950 against the plaintiff on February 19, 2008 by the Minister of Health and Welfare and the revocation of the decision to recover KRW 1,938,08,790 against the plaintiff on March 31, 2008 by the defendant National Health and Welfare.

2. Purport of appeal: Revocation of the judgment of the first instance. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, and it is the same as the reasoning of the judgment of the court of first instance except for adding the judgment of the defendants as to the allegations in the trial of the court of first instance. Thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

▣ 제1심 판결문 7쪽 밑에서 2째줄, 8쪽 10째줄 “2006. 1. 8.”을 “2006. 1. 9.”로 각 고친다.

▣ 제1심 판결문 20쪽 밑에서 4째줄 다음에 아래 부분을 추가한다.

“E. The defendants' assertion and judgment on the defendants' assertion

(1) The Defendants asserted that the medical feasibility of medical care benefits is recognized and thus, even if the medical care benefits and the procedure are violated, if the medical care benefits are to be collected in full from the patient, the examination function of the National Health Insurance Act pertaining to whether the medical care benefits are being properly performed, and that there is an infringement on the entitlement to insurance benefits guaranteed by the policyholder by paying insurance premiums due to the patient’s burden on the expenses for medical care, medicine, and materials subject to medical care benefits, and that the patient’s use of medicines and materials that are not permitted under the medical care benefits standards for the patient to conduct clinical trials for new medicine, etc. Therefore, even in such a case, the Defendants asserted that the medical care provider constituted “the case where the expenses for the insurance benefits have been received by fraud or other improper means” under Articles 52(1) and 85(1) of the National Health Insurance Act, but on the following grounds, the medical care provider selected medical care benefits, medicine, and materials for medical treatment, medicine, and materials for medical care, and obtained consent from the patient and his/her guardian.

① As the medical care benefits standard provides for the medical care benefits and non-benefit items, the upper limit of the cost and remuneration that the medical institution can receive as well as the medical care benefits is individually listed in the medical care benefits standard, which does not fall under the medical care benefits standard but also includes medical care, medicine, and materials for medical treatment that do not fall under non-benefit items. As a result of the development of medical care technology, such matters increase due to the development of medical care technology. In order to treat a disease, it is not subject to the health insurance system, and thus, it cannot be claimed as insurance benefits because it is not subject to the health insurance system. Therefore, it is inevitable to directly claim the expenses and remuneration with the consent of the wounded outside the framework of the insurance system. In particular, in the case of a disease for which the early death rate is high, but the medical treatment rate is high due to active treatment, such need is increased.

② The latter part of Article 22(2) of the Enforcement Decree of the National Health Insurance Act prohibits a patient from claiming expenses for reasons other than medical care benefits or non-medical care benefits prescribed by Ordinance of the Ministry of Health and Welfare pursuant to Article 39(2) and (3) of the same Act. However, this provision should be construed as limiting the scope of claiming insurance benefits and personal charges within the framework of the health insurance system. Thus, if it is interpreted that the provision prohibits a patient from receiving additional expenses or remuneration from a person who has received medical care benefits in excess of the medical care benefit standards with the consent of the person who has received medical care benefits, it cannot be said that it infringes on the patient’s right to receive medical

③ In such cases, even if the grant of voluntary benefit does not necessarily lead to medical personnel to whether it is medical feasibility, the examination can not be conducted ex post by examining and determining the examination of the disposition of imposition of penalty surcharges by the Minister of Health and Welfare and the disposition of unjust enrichment by the National Health Insurance Corporation, and the efficacy, effect, etc. of medical technology and medicines at that time may be determined by comprehensively considering the efficacy, effect,

(4) If the patient has consented to the implementation of the aforementioned provision after hearing a sufficient explanation from the medical personnel on the details of the voluntary benefit, the patient’s right to receive the medical benefit, rather than the right to receive the insurance benefit that only pays the expenses for receiving the treatment in accordance with the criteria for medical care, is more than the right to receive the insurance benefit, so that all medical knowledge and medical technology are mobilized to treat the disease, and the patient himself/herself has selected the right to receive the same treatment.

⑤ According to Article 5(1) [Attachment 1] 3 of the former Regulations on the Standards for Medical Care Benefits in National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 328 of Oct. 11, 2005), and Article 5(1) [Attachment 1] 3 of the former Regulations on the Standards for Medical Care Benefits in National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 328 of Oct. 11, 2005), where a public notice by the Minister of Health and Welfare, a public notice by the Health and Welfare, and a deliberation by the Health and Welfare Committee on severe diseases, etc. are given to patients with serious illnesses, it is possible to prescribe and administer drugs beyond the scope of the matters permitted or reported (e.g., efficacy, effect, usage, volume, etc.) under the Pharmaceutical Affairs Act. Thus, since the National Health Insurance Act recognizes prescription and administration beyond the scope of the license or reporting of drugs, such

(2) The Defendants also asserted to the effect that since the prior application system for aviation cancer was enforced from January 9, 2006, the Plaintiff used the aforementioned system as medical care benefits or non-medical care benefits but did not go through such procedure, it should be deemed that the Plaintiff received insurance benefit costs by fraud or other improper means.

As seen earlier, medical care institutions can file an effective prior application only when the details on the medical care benefit standards have been publicly notified at the same time as the establishment of the medical care benefits system, so that they can substantially use the aforementioned system for blood diseases, such as leuk-dysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysys orsysysysysysysysysysysys.

2. Conclusion

The plaintiff's claim of this case is justified, and the judgment of the court of first instance is just in conclusion, and all appeals by the defendants are dismissed as it is without merit. It is so decided as per Disposition.

Judges Sung Pung-tae (Presiding Judge)