Plaintiff (Attorney Kim Jong-sik et al., Counsel for the plaintiff-appellant)

National Health Insurance Corporation (Attorney Song-young, Counsel for defendant-appellant)

July 12, 2018

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition to recover medical care benefit costs imposed on the Plaintiff on May 23, 2017 is revoked. The Defendant shall pay to the Plaintiff 112,585,130 won with 5% interest per annum from July 29, 2017 to the delivery date of an application for modification of the purport of the claim and the cause of the claim, and 15% interest per annum from the following day to the date of full payment.

1. Details and details of the disposition;

A. The Plaintiff is an intention to establish and operate a medical clinic with ○○○ Mental Health Center (hereinafter “instant clinic”) in the Gu Government-si ( Address omitted).

B. On May 23, 2017, the Defendant rendered a computerized disposition to the Plaintiff on the ground that “the Plaintiff operated the instant medical care benefit cost from May 30, 2009 to July 30, 2016 (hereinafter “instant period”) and in violation of the standards for facilities and equipment of mental medical institutions under the former Mental Health Act (wholly amended by Act No. 14224, May 29, 2016; hereinafter the same shall apply), the Defendant: (a) hospitalized mentally ill persons in excess of the permissible maximum number of beds (49 sickbeds); (b) provided them with medical care benefits; and (c) received the medical care benefit cost of KRW 3,091,953,020 from the Defendant (hereinafter “the instant patient”); and (d) received the medical care benefit cost of KRW 3,091,953,02 from the Defendant by fraud or other improper means; and (c) thus, (d) recovered the entire amount of the medical care benefit cost from the instant medical care benefit cost to the Defendant.

C. At the pertinent date, the Defendant selected the instant patients who were hospitalized in the instant Council member (including both the patients subject to health insurance and the patients subject to medical care) by setting the sequence of the first hospitalization date and more than 49 patient hospitalized in excess of 49 sickbeds.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 3 and 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) It is true that the Plaintiff, while operating the instant council member for the instant period, prepared the beds exceeding the maximum number of beds permissible in a mental council member (49 beds), and hospitalized mentally ill persons therein, and received medical care benefits for the instant patients from the Defendant. However, the Plaintiff’s receipt of medical care benefits from the Defendant by such method does not constitute “the case where the medical care benefits are paid by means of continuous pregnancy or other unjust methods” under Article 57(1) of the National Health Insurance Act for the following reasons.

① The standards for facilities and equipment of a mental medical institution under the former Mental Health Act, etc. merely reflects the difference in medical fees between a mental hospital and a mental medical clinic. Even if the Plaintiff operated beds in excess of the maximum number of sickbeds permissible in a mental medical clinic in violation of the standards for facilities and equipment, insofar as the Plaintiff provided the instant patients with adequate medical care benefits (the Plaintiff did not violate the standards for the floor area per patient according to the standards for facilities and equipment) and claimed medical care benefits corresponding to the mental medical clinic for the Defendant, such violation of the standards for facilities and equipment as above and the claim for medical care benefits for the instant patients, and thus, it cannot be deemed an unfair claim.

② In order to recover the cost of health care benefit by falling under “the case of receiving the cost of health care benefit by prompt or other unjust means” under Article 57(1) of the National Health Insurance Act, the right to claim restitution of unjust enrichment under the Civil Act must be recognized to the Defendant. However, the medical contract between the Plaintiff and the instant patient is valid without violating Article 103(b) of the Civil Act or any other effective provision. Therefore,

③ Article 5(1) [Attachment 1] subparag. 1(d) 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. 408, Jun. 30, 2016; hereinafter the same) provides that “medical care institutions shall maintain adequate human resources, facilities, and equipment necessary for medical care benefits.” However, given that the calculation of medical care benefits is governed by “the list of health insurance benefits and the relative value of benefits”, the above provision is irrelevant to whether the claim for medical care benefits for the instant patients constitutes an unfair claim. In addition, the above provision only allows medical care institutions to maintain adequate human resources, facilities, and equipment necessary for medical care benefits, and does not purport to prohibit the installation of excess facilities, and thus, even if the Plaintiff operated a mental hospital with the maximum number of sickbeds (49 sickbeds) permitted by a mental doctor, it cannot be deemed that the Plaintiff violated the above provision.

2) Furthermore, even if the claim for and payment of medical care benefit costs for the instant patients constitutes unfair claims, considering the distinction between health insurance and medical care benefits, it is reasonable to select hospitalized patients in excess of the maximum number of patient beds permissible at a mental medical center, taking into account only the patients subject to the health insurance. However, the Defendant selected the instant patients hospitalized in excess of the maximum number of patient beds permissible at a mental medical center (49 patient), taking into account both the patients subject to the health insurance and the patients subject to the medical care, and thus, the instant disposition was rendered by misunderstanding the fact that the instant disposition is premised on the disposition.

3) Therefore, the instant disposition is unlawful.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Article 41(2) of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016) provides, “A medical care institutions shall provide that “The standards for and methods of medical care benefits for the insured, etc. under attached Table 1 shall be applied to medical care institutions in accordance with the standards and methods for medical care benefits under attached Table 1” pursuant to Article 5(1) of the former Regulations on the Standards for Medical Care Benefits for National Health Insurance pursuant to the delegation of Article 41(2) of the National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016), and that “medical care institutions shall maintain adequate human resources, facilities, and equipment necessary for medical care benefits

Article 12(1) of the former Mental Health Act provides that “The standards, etc. for the facilities and equipment of a mental medical institution shall be prescribed by Ordinance of the Ministry of Health and Welfare in consideration of the scale, etc. of the mental medical institution.” According to the attached Table 2 of Article 7(1) of the former Enforcement Rule of the Mental Health Act (wholly amended by Ordinance of the Ministry of Health and Welfare No. 497 of May 30, 2017 and the Enforcement Rule of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients; hereinafter the same shall apply), the standards for facilities and equipment of a mental medical institution shall be “a sick room where 49 or less patients can be hospitalized where 50 or more patients are installed,” and the standards for facilities and equipment of a mental medical institution shall be “a sick room, an emergency room or night clinic, a brain examination and clinical examination room, a consultation room, a rehabilitation training room, a radiation training room, a dispensary, a disinfection facility, a facility for disinfection, a facility for first-aid services, and one”.

Meanwhile, according to Article 12(6) of the former Mental Health Act and Article 33(3), (4), and (5) of the former Medical Service Act (amended by Act No. 1420, May 29, 2016; hereinafter the same), to establish a mental clinic, a Mayor/Do Governor shall report to the head of the relevant Si/Gun/Gu. To establish a mental hospital, a Mayor/Do Governor shall obtain permission to establish a mental hospital; and a Mayor/Do Governor is prohibited from granting permission if the mental hospital for which permission is applied for establishment is not in compliance with the facility standards. Moreover, when a medical institution that has been established by filing a report or obtaining permission intends to change any of the important matters prescribed by Ordinance of the Ministry of Health and Welfare among the reported or permitted matters, it shall report or obtain permission by the said method. According to Article 36 of the former Medical Service Act, a person who

B) As a matter of principle, a medical care institution provides medical care benefits in accordance with the standards and procedures set forth in the Act and subordinate statutes regarding the criteria for recognition of medical care benefits, and the payment of medical care benefits from insurers, subscribers, etc. ought to comply with the standards and procedures set forth in the relevant Act and subordinate statutes regarding the criteria for calculation thereof. Therefore, where a medical care institution receives medical care benefits in violation of the standards and procedures set forth in the Act and subordinate statutes regarding the criteria for recognition of medical care benefits, in principle, constitutes cases where the medical care institution receives medical care benefits in violation of Article 57(1) of the National Health Insurance Act (see Supreme Court en banc Decision 2010Du27639, 276

2) As can be seen, the National Health Insurance Decree provides health insurance subscribers with adequate health care benefit by maintaining appropriate facilities and equipment necessary for health care benefit and providing health care benefit. According to the Mental Health Act and the Medical Care Act and subordinate statutes, a psychiatrist may establish a sick room where not more than 49 patients can be hospitalized if one hospital is established, and the establishment thereof shall be in accordance with the reporting procedure. On the contrary, a mental hospital shall be equipped with facilities to provide health care benefits at a higher level compared with mental and medical members, such as sick rooms and emergency or night medical rooms, diagnostic rooms, brain wave tests, and hearts, which can be hospitalized by not less than 50 patients, and the establishment thereof shall be in accordance with the permission procedure. Where a mental hospital intends to change the permitted matters, permission for change shall be obtained from the permitting administrative agency, and in the process, management and supervision of the relevant facilities and equipment shall be maintained by an administrative agency. The foregoing mental hospital’s standards for facilities and equipment meet the standards for health care benefit prescribed in attached Table 1(d) [Attachment 1] of the former Rules for Health Care Benefits.

Therefore, in the event that at least 50 patients were hospitalized in the relevant hospital in violation of the criteria for the establishment of the hospital (a hospital which may be hospitalized by 49 or less persons), and the mental medical personnel, in fact, operated the hospital as the scale of a mental hospital without meeting the standards for facilities and equipment of the hospital and provided the hospital with any management and supervision of the relevant facilities and equipment by the competent administrative agency without meeting the standards for establishment of the hospital, the medical care benefits provided to at least 49 patients out of the hospital without being equipped with adequate facilities and equipment necessary for the medical care benefits (Article 5(1)1 (d) of the former Regulations on the Standards for the Medical Care Benefits of National Health Insurance) is performed in violation of the standards for recognition of the medical care benefits [Article 5(1)1 (d) of the National Health Insurance Act]. Therefore, it is reasonable to view that the medical care benefits for which the mental medical personnel cannot receive all expenses for the medical care benefits provided to the patients exceeding 49 persons among the inpatients, and thus, received the “influence or any other unfair means” under Article 57(

3) Although the Plaintiff was in a sick room where at least 50 patients can be hospitalized in the course of operating the instant clinic during the instant period, the fact that the Plaintiff did not obtain permission to establish a mental hospital without having any kinds of facilities and equipment to be equipped by the mental hospital pursuant to Article 7(1) [Attachment 2] of the former Enforcement Rule of the Mental Health Act does not conflict between the parties.

The Plaintiff, which is a cause of the instant medical clinic, was equipped with a sick room where at least 50 patients can be hospitalized, and operated as a mental hospital in fact, but did not meet the standards for facilities and equipment of a mental hospital and did not receive any management and supervision from the competent administrative agency on the relevant facilities and equipment from the competent administrative agency. In light of the purport of the relevant statutes, inasmuch as the medical care benefits for more than 49 patients hospitalized in the instant medical clinic, among the patients hospitalized in the instant medical clinic, were provided in violation of the standards for recognition of medical care benefits, the medical care benefits for the patients hospitalized in excess of 49 persons, and thus, all of the medical care benefits are medical care benefits for which

4) In light of the purpose of the criteria for recognition of medical care benefits to secure the appropriate level of medical care benefits for inpatientss [Article 5(1)1(d) of the former Regulations on the Standards for Medical Care Benefits in National Health Insurance], it is reasonable to determine whether the number of patients hospitalized at a mental doctor’s meeting exceeds 49 persons, including both patients subject to health insurance and patients subject to medical care, when determining whether the number of patients hospitalized in the meeting of a mental doctor is successively calculated according to the time of hospitalization, and whether the number exceeds 49 persons. As seen earlier, as seen earlier, the Defendant: (a) taken a patient with more than 49 patients of the instant Council by such method;

5) Ultimately, the instant disposition is unlawful and lawful without any unlawful ground alleged by the Plaintiff.

3. Determination on the claim for payment of medical care benefit costs

Under the premise that the disposition of this case is revoked illegally, the Plaintiff claims for medical care benefit costs of KRW 112,585,130, which was set-off by the computer of this case, and damages for delay.

However, as seen earlier, the instant disposition is lawful, and thus, the aforementioned claim is rejected on a different premise.

4. Conclusion

The claim of this case cannot be accepted in entirety, and it is so dismissed as per Disposition.

[Attachment]

Judges Kim Jong-dae (Presiding Judge) (Presiding Judge) Kim or Kim Gung-Gyeong