Plaintiff (Law Firm, Kim & Lee LLC et al., Counsel for the plaintiff-appellant)

The Minister of Health and Welfare (Attorney exclusive of the Government Law Firm Corporation)

July 10, 2019

Seoul Administrative Court Decision 2017Guhap73174 decided March 8, 2018

1. Revocation of the first instance judgment.

2. The Defendant’s disposition of suspending the business of a medical care institution that the Plaintiff rendered on May 2, 2017 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details and details of the disposition;

A. The Plaintiff is a herb doctor who establishes and operates a ○○○○○○○○ Council member in the Seongbuk-gu Seoul Metropolitan City (hereinafter “instant Council member”) and closed his business, and thereafter establishes and operates a △△△△△ Council member in Seodaemun-gu (hereinafter omitted).

B. From July 1, 2013 to December 31, 2013 (hereinafter “the instant period”) the Plaintiff provided medical treatment for non-benefit items, such as de facto erosion (not less than 2 parts of climatics-2, vertecopic, vertecopic, etc.) and Onnuri Scopic Scopic Scopic (hereinafter “the instant period”), which was conducted even without implementing “the instant period”), and upon the request of the National Health Insurance Corporation (hereinafter “Corporation”) for medical care benefits, the Plaintiff received a total of KRW 47,724,060 (hereinafter “the instant case”).

C. On August 22, 2014, the Corporation conducted an on-site investigation on the instant Institute. Afterwards, the Defendant conducted an on-site investigation on the instant Institute for three days from October 22, 2015, and at the time, the Plaintiff prepared a confirmation of the fact (Evidence A6-1, hereinafter “instant confirmation”).

D. On May 2, 2017, the Defendant rendered a disposition to suspend the business of a medical care institution for 145 days (hereinafter “instant disposition”) based on Article 98(1)1 of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016; hereinafter the same shall apply) and Article 70(1) [Attachment 5] of the former Enforcement Decree of the National Health Insurance Act (amended by Presidential Decree No. 2743, Aug. 2, 2016; hereinafter the same shall apply) on the ground that the Plaintiff’s act of this case constitutes a case where the Plaintiff was liable for medical care benefit costs by deceit or other unjust means. The calculation method of the period of suspension of the foregoing is as listed below.

In the table (unit: won, percentage, and date) included in the main sentence, the total amount of medical care benefit costs (from July 2013 to December 2013, 159,23, 870, 47,724, 760, 754, 010. 97. 145, 209.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, Gap 6's evidence 1 to 3, Gap 26's evidence, Eul 2's evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff’s act was acknowledged before the instant period, the Plaintiff’s act was modified, and the instant period was 4 weeks 1) sexual intercourse and 5) sexual aggression during which the instant period was conducted. The Plaintiff’s act was an illegal disposition that deviates from and abused discretion, since the instant disposition was conducted on the premise of any other fact, even if it falls under the items of medical care benefits as independent treatment items, and thus, a person in charge of administrative affairs claims for medical care benefits corresponding to the sexual aggression, etc., which is the method of providing medical care benefits. Therefore, even though the instant act constituted a simple claim, and the Plaintiff’s act did not constitute a fraudulent claim using a deceptive act, the instant disposition is an illegal disposition that deviates from and abused discretion.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Whether the Plaintiff performed the blood transfusion and the climatic surgery during the instant period

1) If an administrative agency has obtained a written confirmation from the other party to an investigation to the effect that a specific offense is discovered in the course of an on-site investigation, the value of the written confirmation cannot be readily denied unless there are special circumstances, such as that the written confirmation is forced against the will of the originator, or it is difficult to take the written confirmation as evidentiary materials for specific facts due to lack of details (see, e.g., Supreme Court Decision 2015Du2864, Jul. 11, 2017).

2) The following facts can be acknowledged according to the statements in Gap evidence 6-1, Eul evidence 1-7, and Eul evidence 6.

① The confirmation document of the instant case, which was prepared by the Plaintiff in the course of the Defendant’s on-site investigation, states as follows: “The intrusion was modified after August 2014. The former was used, and the current was used.”

② On October 23, 2015 and October 24, 2015, an investigator belonging to the Corporation respondeded to the purport that according to telephone conversations with seven of the instant researchers, he/she would not have any contact.

③ The medical records of the Plaintiff are not recorded with blood transfusions or her part of her part of the procedure.

However, the following facts are also acknowledged in light of the contents of evidence Nos. 3, 18-1, 2, 9, 14, 19-1, A24-5, A28-31, A34, and 35-1, and the whole purport of the pleadings.

① During the instant period, a member of the Institute of Korea purchased amochys used for the blood transfusion treatment, automatic blood transfusions, and amocacacacacacacacacacacacacacacacacaca

② Of the winners of the instant case, 117 persons submitted a written confirmation to the effect that they were imprisoned, and some of them stated in the police investigation that “the head or embling was invaded.” In the criminal case against the Plaintiff (Seoul Western District Court Decision 2018Da1885, hereinafter “related criminal case”), some of the winners of the instant case were present as witnesses for the same purpose.

③ 이 사건 한의원에서 2012. 3. 31. ~ 2015. 4. 25.경까지 근무한 간호사 소외 1은 경찰 전화통화에서 “처음 입사하였을 때 얼마간은 누워서 맞는 일반적인 침을 하였으나, 이후 침법을 톡톡이침, 사혈침으로 바꾸었다”고 진술하였다. 이 사건 한의원에서 이 사건 기간 이전부터 진료받은 경험이 있는 이 사건 수진자들 중 일부도 “과거에는 누워서 침을 맞다가 이후 치료의자에 앉은 채로 침을 맞았다”고 진술하였다.

3) In light of the following circumstances as revealed from the above facts and the evidence, it is reasonable to recognize that the Plaintiff had conducted blood ties and patition during the instant period, notwithstanding the written confirmation of facts in the instant case. This part of the Plaintiff’s assertion is with merit.

① Among the winners of the instant case, a majority stated that he/she was invaded upon the head or she was, and in light of the fact that the equipment necessary for the blood transfusion and the procedure of the instant case and the records of the actual purchase and destruction of the intrusion were confirmed during the instant period, the credibility of the said statement cannot be rejected.

② In light of the fact that the phone investigation by an investigator belonging to the Corporation was conducted only through a simple question and answer without a description of the type of invasion, and that some of them corrected the statement that they met after hearing an explanation of the act of blood transfusion and the procedure of the surgery, there is sufficient room for an investigator to answer the phone investigation at the time of the above phone investigation to the extent that they were in short of understanding of blood invasion and the surgery.

③ The police, as a general opinion in the relevant criminal case, judged that the Plaintiff had changed the course from April 2012 to the beeutic beeutic beeutic beeutic beeutic beeutic beeutic in the beeutic beeutic beeutic beeutic beeutic beeutic from April 2012. The first instance court in

④ Although the Plaintiff stated that “after the Corporation’s investigation on August 2014,” the instant written confirmation of facts, the date and time of the amendment seems to be clearly contrary to the specific facts and the aforementioned date of amendment.

(d) Whether the medical care benefit cost can be claimed, as an independent medical treatment for the surgery of blood transfusion and patriate;

1) In light of the structure, form, and content of the provisions of the former National Health Insurance Act concerning the medical care benefit eligible under the National Health Insurance Act, if an act, medicine, or material for medical treatment conducted or used by a medical care institution to the subscribers, etc. falls under non-benefit eligibility under Article 9(1) [Attachment Table 2] of the Medical Care Benefit Standard Rules, it shall be excluded from the medical care benefit even if the act, medicine, or material for medical treatment listed in the wage list publicly notified by the Minister of Health and Welfare pursuant to the above Act falls under the scope of non-benefit eligibility. Furthermore, it is reasonable to view that the above non-benefit eligibility medical treatment includes not only the medical treatment itself but also the medical treatment incidental thereto. Determination on the need should be made by the medical care institution comprehensively taking into account the medical care institution’s internal motive, objective condition, etc., the purpose of the medical care, the content of the medical treatment, and the level of the medical practice performed in the clinical medical field, such as the medical care institution at the time of the implementation

2) For the following reasons, it is reasonable to view that the Plaintiff’s blood transfusion surgery is accompanied by the Plaintiff’s medical treatment necessary to conduct “non-benefit surgery”, which is a non-benefit medical treatment, and is included in non-benefit medical treatment. This part of the Plaintiff’s assertion cannot be accepted.

① The Plaintiff stated in the confirmation document of the instant case that “In the instant case, I would enhance the effect of the therapy in parallel with the Non-Gronology and the Nana Triwon Correction Law. In each of the instant treatments, the treatment should be effective and carried out concurrently. Accordingly, the treatment must be an essential course of the said treatment.” The Plaintiff asserted that during the instant lawsuit, the treatment is an essential treatment to correct the cerebrovassis that is unstable due to the implementation of the Non-Gronology and the Non-Gronchial Reculary Reculsis and the Non-Gronchial Reculsis.”

② Even based on the Plaintiff’s assertion, the patients wished to undergo the Non-Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megicals, and

③ In the relevant criminal case, Nonparty 2 testified that “The head of the instant medical clinic, the head of the instant medical clinic, and the blood transfusion, are under way in the order of his/her hair, and there is no omission in the said process (Evidence A27).” Nonparty 3, one of the winners of the instant case, testified that he/she was headed and was affected by his/her hair at each time of Nonparty 3 (Korean Council member)” (Evidence A28) (Evidence). In light of the above statements, in the instant medical clinic, Nonparty 2, who was working for the instant medical clinic, appears to have been conducted only with the treatment subject to non-benefit.

④ On May 17, 2019, the Korean Medical Association replied to the fact-finding inquiry inquiry that “In the event that it is impossible to know the specific method of therapy and the blood transfusion, and thus, the accurate judgment was made by the Korean Medical Association: (a) the effect of lowering the degree of the improvement of the blood disorder in the non-river and the pressure within the non-river; (b) however, it is difficult to recognize the Plaintiff’s response on the premise that the treatment was conducted by the Plaintiff only based on the aforementioned independent method of treatment as well as the content of the treatment in the instant case, based on the premise that the Plaintiff’s response to the treatment in the instant case was based on the premise that the treatment in question was conducted by the Plaintiff, such as the treatment in question and the treatment in question, conducted by using the dynasium using the dynasium and the dynasium to expect the treatment in question, is different from the treatment in question and the treatment in question using the finger and the mechanism that the treatment in question was conducted by the Plaintiff.”

⑤ In the instant case, it is recognized that the Plaintiff claimed and received medical care benefit costs at three medical clinics with respect to the inception related to the inception and the inception procedure similar to the inception and the inception surgery (the inquiry inquiry inquiry by the Corporation on July 17, 2018), but there is no evidence to deem that the inception procedure conducted by the above inception is accompanied by the inception and the inception procedure, which is the treatment subject to non-payment, and the inception method of the same content as the inception and the inception procedure of Han inception.

D. Whether the Plaintiff claims for unfair medical care benefits using a fraudulent act

1) Article 98(1)1 of the former National Health Insurance Act provides that a medical care institution may order the Defendant to suspend its business, “in cases where the medical care institution has charged costs of health care benefit by fraud or other improper means.” In this context, where the medical care institution has charged costs of health care benefits by fraud or other improper means, even though there is no factual basis that causes for claiming the costs of health care benefits exist, it is interpreted that the institution has charged the costs of health care benefits by means of fraud or other improper means, even if there is factual basis that causes for claiming the costs of health care benefits by fraud or other relevant documents, it is interpreted that the institution has violated the relevant statutes or that it has charged the costs of health care, although it is inappropriate to pay the costs of health care benefits by lack of substantial feasibility (see, e.g., Constitutional Court Decision 2014Hun-Ba

2) The instant confirmation document states that “The details of the patient’s diagnosis and treatment are entered in the vertical set at the time of the completion of the medical examination and treatment, and the details of the electronic vehicle insurance claim (the details of the insurance claim are entered in the tethical tethical tethical tethical tethical tethy and the tethical tethical tethical tethical tethical tethy). Furthermore, in full view of the purport of the argument in the evidence No. 31, the prosecutor in the relevant criminal case considered that “the Plaintiff did not notify the nurse of the changes in the claim and that the Plaintiff had an interest in the claim for medical care benefits,” rather than in the claim due to mistake, the Plaintiff’s act of this case was charged at a rate of fraud.

However, the following facts can be acknowledged in full view of the contents of evidence A, Nos. 14, 15 and the purport of the entire pleadings.

① Nonparty 1, who worked at the instant Institute, stated in police telephone conversations that “The Health Insurance Review Board requested other nurses, including Nonparty 4, at the time of filing a claim for health care benefit, etc., and the relevant details also were known to the Plaintiff, the president.”

② Nonparty 5, a member of the Council of Korea, stated that “The duties related to the claim for medical care benefits, was entirely carried out by the employees, and the Plaintiff did not participate in the said duties and is currently carried out by the employees.”

3) In light of the following circumstances, including the above-mentioned facts, evidence Nos. 31 and 36, and the overall purport of the pleadings, the Plaintiff merely appears to have claimed medical care benefit costs by “other improper means,” and it is difficult to deem that the Plaintiff claimed medical care benefit costs by “a continuous acceptance.” This part of the Plaintiff’s assertion is with merit.

① In the relevant criminal case, the Prosecutor also recognized that “the Plaintiff did not notify the nurse in charge of the change of the items of medical care benefit claim due to the change of the course of the law as the president, and thus did not directly enter the details of the insurance claim into the details of the insurance claim at least, based on the fact that the nurse who was not aware of the change of the course of the law was claimed according

② In the relevant criminal case, the first instance court determined that “The claim for medical care benefits in question in this case is at least 6,00 cases, approximately 2,500 cases were filed on October 7, 2013), and the remainder approximately 3,500 cases were filed on February 11, 2014, and it is reasonable to view that the above entry was made by a person in charge of administrative affairs rather than by the Plaintiff, the president in charge of medical care.”

③ It is reasonable to view that the Plaintiff’s claim for medical care benefits during the instant period was made by a person in charge of administrative affairs, not the Plaintiff. However, there is no evidence to deem that the Plaintiff instructed the person in charge of administrative affairs to demand as it was in the past even when the law was changed, or that the administrative affairs officer did not intentionally instruct the person in charge of administrative affairs to demand as changed in the past.

E. Whether the instant disposition deviates from or abused discretionary power

1) The court’s judicial review of discretionary act is to examine whether the pertinent act was a deviation or abuse of discretionary power by misunderstanding of facts, violating the principle of proportionality and equality, and violating the purpose of the pertinent act or an illegal motive. However, if, as a result of the court’s review, the court’s discretionary act is deemed to be based on misunderstanding of facts, etc., it is a deviation or abuse of discretionary power and is not exempt from its revocation (see Supreme Court Decision 99Du8589, Jul. 27, 2001). In addition, if the court did not take into account any of the grounds for mitigation in the absence of any other mitigation or misunderstanding that it does not constitute grounds for mitigation, the disposition is an illegal disposition that deviates or abused from discretionary power (see Supreme Court Decision 2010Du7031, Jul. 15, 2010, etc.).

2) For the following reasons, it is reasonable to deem the instant disposition was unlawful as it deviates from and abused discretionary power. This part of the Plaintiff’s assertion is with merit.

① The instant disposition was made on the premise that the Plaintiff did not perform the instant period’s bedyptive surgery as well as the instant period’s bedyptive surgery, and that the Plaintiff made a fraudulent claim against the bedyptive surgery, etc., which was not directly treated. However, this premise of the instant disposition is not acknowledged.

② Article 98(5) of the former National Health Insurance Act and Article 70(1) [Attachment Table 5] of the former Enforcement Decree of the National Health Insurance Act provides that “The standards for disposition of suspension of business and imposition of penalty surcharges” (hereinafter “standards for disposition”) shall be deemed the maximum period or amount not fixed (see Supreme Court Decision 2005Du11982, Feb. 9, 2006). In addition, according to the criteria for disposition and the “disposition for mitigation” on April 2, 2006, “the period of suspension of business may be mitigated by up to 1/2 of the period of suspension of business, taking into account the motive, purpose, degree, frequency, etc. of the offense: Provided, That this shall not apply where the Corporation bears medical care benefit costs by fraudulent means.”

The instant disposition is the business suspension disposition of the maximum limit, and the Plaintiff has no record of being subject to an administrative disposition in violation of the National Health Insurance Act. As seen earlier, it is determined that the Plaintiff’s act of this case is not a fraudulent act but an illegal claim by other improper acts, and there is a reason to consider the reduced business suspension or the imposition of the penalty surcharge. Nevertheless,

F. Sub-committee

In cases where a disposition is taken in relation to an administrative disposition that has discretion as to whether to take a disposition or whether to take a disposition and the degree of the disposition, the court can only determine whether the disposition is a deviation from its discretion, but it cannot determine whether the degree is appropriate within the scope of its discretion, and the entire revocation is inevitable (see, e.g., Supreme Court Decision 2007Du18062, Jun. 23, 2009). Therefore, the instant disposition that deviates from or abused its discretionary authority should be completely revoked.

3. Conclusion

Thus, the plaintiff's claim shall be accepted on the grounds of its reasoning. Since the judgment of the first instance is unfair with different conclusions, the plaintiff's appeal is accepted and the judgment of the first instance is revoked and the disposition of this case is revoked

[Attachment]

Judges Jeon Soo-tae (Presiding Judge)

Note 1) The “Non-Greshionary Act” means: (a) by inserting ices, which are equipment, into the nose, thereby causing negative pressure; (b) forcibly reducing the fluorum finites and the agriculture inside the finites, which are the cause of infection; and (c) stimulates the pressure of ices by controlling the pressure of ices so as to achieve immunity and the sbrake’s correctional effects; and (d) correcting the structural problems of the cinant body by using the cinites, which are made of special manufacture for the upper cycle of the upper cycle of the thromatic water protecting brain and the growth of the necks (the Plaintiff’s preparatory brief on July 9, 2019).

Note 2) It means bedys performed and removed after a certain time is maintained.

Note 3) It means the methods which repeatedly stimulates light blood transfusions by means of aggression.

Note 4) He/she is a light-droculing (self-divated) which makes the upper part of his/her he/she shoots by using the blood shoot (the end of the automatic blood recorder that has a small-sized rifle).

Note 5) Using a child bed (a single-use bed in a small bed-type bed-to-be bed-to-be bed-to-be bed-to-be bed-under bed-under bed-under bed-to-be bed-under bed-under bed-under bed-under be

주6) 관련 형사사건의 판결(갑36호증)에 나타난 진술도 ‘혀에 무슨 시술을 하고, 머리를 탁탁치고, 귀에 연필 같은 것으로 자극하는 시술을 받았다’, ‘혀에 똑딱이 같은 것으로 뭘 한 것은 있었어요. 그것으로 혀에 뭘 한 다음에 피를 뱉으라고 한 적은 있었어요.’, ‘머리에 침 꽂았다 빼는 것을 받긴 했어요’, ‘머리에 뭘 놓긴 놓았던 것 같아요’, ‘혓바닥에 에~~ 라고 하면 총 같이 생긴 침을 놓는 시술은 했어요’ 등이다.

Note 7) In light of the indictments in the relevant criminal case (to be attached to the Plaintiff’s reference documents as of February 19, 2018) and the attached documents of the judgment, it appears that the phrase “ October 11, 2013” appears to be written in writing.