(영문) 서울중앙지방법원 2010. 1. 21. 선고 2009노3734 판결

(1) In the first place, Article 48(1)1 of the National Health Insurance Act (hereinafter “instant legal provision”) provides that “When a person causes an accident by intention or gross negligence or intentionally,” one of the grounds for restrictions on insurance benefits. In light of the fact that “when a person causes an accident by intention or gross negligence” refers to an employee’s intentional act, it is unreasonable to interpret “when a crime by intention or gross negligence is caused by another person’s criminal act” differently from that of another person’s criminal act. In addition, it is unreasonable to interpret that “when a crime by intention or gross negligence is caused by another person’s criminal act.” In addition, it is difficult to interpret that benefits under the National Health Insurance Act are also caused by an accident by intention or gross negligence, and thus, it is more reasonable to interpret the legal provision of this case as grounds for restriction on benefits, and it is reasonable to interpret that the legal provision of Article 53(1) of the National Health Insurance Act provides that “when a criminal act by intention or gross negligence is caused by another person’s criminal act, as well as a criminal act by intention or gross negligence.”

(2) Preliminaryly, even if the legal provision of this case should be interpreted in the same manner as the lower court’s judgment, the Defendant first placed the legal provision and suffered the instant injury in the process of physical fighting with Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), which constitutes “where an insurance accident occurred due to the principal criminal act of the Defendant,” or “where an accident occurred due to intention.”

(3) Therefore, even though the charge on the fraud of this case is found guilty, since the injury of the defendant seems to be limited, the court below rendered a not-guilty verdict on this part of the charges. The court below erred by misapprehending the legal principles on the legal provisions of this case, thereby affecting the conclusion of the judgment.

B. As to the insult

Despite the fact that the Defendant’s insulting act of this case cannot be deemed an act that does not go against the social norms, the lower court rendered a not guilty verdict of the Defendant on this point. In so doing, the lower court erred by misapprehending the legal doctrine on a justifiable act or by misapprehending the fact about a justifiable act, thereby adversely affecting the conclusion of the judgment. In so doing, it did not err by misapprehending the legal doctrine on a justifiable act, or by misapprehending the fact about a justifiable act, thereby affecting the conclusion of the judgment.

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged in this case

(1) Fraud

At around 09:30 on March 23, 2007, the Defendant was Nonindicted Party 1 and was in trial near Seocho-gu Seoul Seocho-gu Seocho-gu, Seocho-gu, Seoul, and Nonindicted Party 1 caused injury to the Defendant, such as the left-hand flag abandonment, pulverization, pulverization, etc., which requires approximately eight weeks of treatment by the Defendant’s flabation.

On March 23, 2007, the Defendant was hospitalized in Seocho-gu Seoul Metropolitan Government (hereinafter referred to as ○○ Hospital) and received treatment from March 27, 2007 from that date until March 27, 2007, and the Defendant became aware that the application of medical insurance or the “injury by another person” was not subject to medical insurance, but the Defendant was classified as a patient not subject to medical insurance.

On March 27, 2007, the Defendant: (a) had the National Health Insurance Corporation consider to pay the medical expenses on behalf of the patient subject to the application of the medical insurance; and (b) had the employee in charge of the medical expenses of the Seocho-gu Hospital receive medical treatment from the hospital immediately in Seocho-gu Seoul (hereinafter referred to as “Seoul”); (c) had the employee in charge of the medical expenses of the hospital in charge of the medical expenses of the hospital in charge of the medical expenses of the hospital in charge of the medical expenses of the hospital in charge of the medical expenses of the hospital in charge of the medical expenses of the hospital in charge of the medical expenses of the National Health Insurance Corporation. (d) around March 23, 2007, the Defendant had the employee in charge of the health insurance in charge of the medical expenses of the hospital in charge of the medical expenses of the hospital in charge of the medical expenses of the hospital in charge of the medical expenses in charge of the medical expenses of the hospital in charge of the amount of the medical expenses paid to the Corporation.

As such, the Defendant, as well as the employees of the National Health Insurance Corporation, had them pay 14,900 won for medical expenses, thereby taking property benefits equivalent to the same amount, thereby making a total of 17 times from that time to September 26, 2008, 261,590 won.

(2) Deguination

On November 13, 2007, the Defendant was present at the Seoul Central District Court as a witness and appealed against the Defendant’s injury (Seoul Central District Court 2007Ma4739).

이에 피고인은 2008. 6. 13. 16:30경 서울중앙지방법원에서 공소외 3, 4 등 여러 사람이 있는 가운데 위 피해자에게 “그딴 식으로 살지 말어! 어? 보험금 가져갔으면 먹고 떨어지라고 내가 말 안 했어! 보험사기 했잖아! 너! 보험사기 안 했어. 너가? 뭘 다쳤어. 니가? 야. 인간아, 인간아! 보험금 타 먹었으면 됐지. 증언을 그따위로 해! 내가 남 때렸다고 그래, 그런 식으로 하고 있어! 고소도 했어. 한번 두고 봐. 누가 사기꾼인데, 누구보고 사기꾼 하는 거야? 니가 사기꾼이라 그랬지. 내가 사기꾼이라 그랬어? 보험사기 쳤잖아!”라고 말하여 공연히 피해자를 모욕하였다.

B. The judgment of the court below

(1) As to fraud

As specified in Article 1 of the National Health Insurance Act, the purpose of the National Health Insurance Act is to improve the national health and promote social security by providing citizens with insurance benefits for the prevention, diagnosis, medical treatment, and rehabilitation of diseases and injury, for childbirth and death, and for improvement of health. If an insurance benefit under the National Health Insurance Act is interpreted to be restricted in the case of an insurance accident caused by a criminal act of another person, the perpetrator would be bound to fully bear medical expenses, etc., and ultimately go against the legislative purpose of the National Health Insurance Act. ② The provision of the right to indemnity against a third party under Article 53(1) of the National Health Insurance Act is premised on the inclusion of an insurance accident caused by a third party’s criminal act as an insurance accident. In light of the above, the court below found the Defendant guilty of this part of the facts charged on the ground that even if the injury of the Defendant itself is based on the facts charged, it constitutes a criminal act of the non-indicted 1, the main agent, and thus, it does not constitute fraud.

(2) An insulting point

In addition, as to the facts charged of the above insult against the defendant, the court below found the defendant guilty of this part of the facts charged on the ground that the defendant's above expressions are not contrary to social rules and do not constitute a justifiable act under Article 20 of the Criminal Act, in light of the motive and background of the above expressions, the contents and degree of the expression, and the relationship of the victim, etc., and thus, the defendant's above expressions are not contrary to social rules, and they do not constitute a justifiable act under Article 20 of the Criminal Act.

3. Judgment of the court below

A. As to fraud

(1) We examine the above circumstances. ① In light of the legislative purpose of Article 1 of the National Health Insurance Act, the requirement of benefit restriction should be strictly interpreted (see, e.g., Supreme Court Decision 2002Du12175, Feb. 28, 2003). ② Article 41(1) of the former National Medical Insurance Act (repealed by Article 2 of the Addenda to the National Health Insurance Act, Act No. 5854, Feb. 8, 1999), which is a telegraph of the legal provision of this case, provides that “When a person entitled to insurance benefits has caused a criminal act, intentionally or intentionally caused an accident, the insurer shall not receive insurance benefits.” This is modified to the legal provision of this case, and it is unreasonable to take the benefit restriction into account due to a criminal act committed by a worker's passage as a reason for health insurance in light of the purpose of the National Health Insurance Act, and it is difficult to consider that the insurance accident occurred only due to a criminal act or negligence of another person.”

(2) In addition, comprehensively taking account of the evidence duly adopted and examined by the court below, the defendant was found to have suffered the injury of this case while driving on the road around March 23, 2007 on the road and driving it on the road with Non-Indicted 1 who is the other driver of the vehicle, and having committed violence. Thus, the injury of this case suffered by the defendant due to Non-Indicted 1's assault cannot be deemed to be "the injury suffered by the defendant either by mistake or mainly by the criminal act."

(3) Therefore, it was true that the defendant made a false statement about the reason why he suffered the instant injury in a hospital that "at the time when he suffered the instant injury," but there is no proximate causal relation between such false statement and the result that he received the insurance benefit of this case from the National Health Insurance Corporation after that, therefore, the judgment of the court below which acquitted the Defendant on the facts charged of the instant fraud is just, and there is no error in the misapprehension of legal principles as otherwise alleged by the prosecutor.

B. As to the insult

Furthermore, as to insult, the phrase “act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and whether certain act is justified as a legitimate act that does not contravene social norms, should be determined individually by considering the following specific circumstances: (a) the motive or purpose of the act is justifiable; (b) the reasonableness of the means or method of the act; (c) the balance between the benefit and the benefit of infringement; (d) the balance between the benefit of protection and the benefit of infringement; and (e) the supplementary nature that there is no other means or method other than the act (see, e.g., Supreme Court Decisions 2002Do5077, Dec. 26, 2002; 2003Do4151, Apr. 27, 2006).

Comprehensively taking account of the evidence duly adopted and examined by the court below, the defendant was not guilty of the injury of the victim, who was on the part of the non-indicted 1 and the other party while driving his vehicle on March 23, 2007, and was injured by the non-indicted 2, who was on the part of the non-indicted 1 while driving his vehicle on the road. The defendant was not guilty of this part by receiving 4.5 million won insurance money from the insurance company in which the victim non-indicted 2 was a member of the defendant's vehicle. However, the defendant and the non-indicted 1 sent a complaint against the above injury between the non-indicted 2 and the non-indicted 2, who was not on the part of the non-indicted 2, and the victim's testimony and testimony to the non-indicted 1 as a witness of the non-indicted 2, who was on the part of the non-indicted 1 and the non-indicted 2, who had been on the part of the non-indicted 1, who had been on the part of the defendant's vehicle.

Therefore, the judgment of the court below which acquitted the defendant on the ground that the above insult constituted a justifiable act is erroneous by misapprehending the legal principles as to a justifiable act, or by misapprehending the facts as to such an act. Therefore, the prosecutor's appeal pointing this out is with merit.

4. Conclusion

Therefore, since the above appeal against the prosecutor's insult is well-grounded, the part of the judgment of the court below as to the insult under Article 364 (6) of the Criminal Procedure Act is reversed, and it is again decided after pleading as follows. The prosecutor's appeal as to the fraud is without merit, and it is dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Criminal facts

On November 13, 2007, the Defendant was present at the Seoul Central District Court as a witness and appealed against the Defendant’s injury (Seoul Central District Court 2007Ma4739).