2015Nu63816 Revocation of disposition on recovery of medical care benefit costs

1. A;

2. B

[Judgment of the court below]

Attorney Song-don et al.

National Health Insurance Corporation

Attorney Kim Han-soo, Counsel for the plaintiff-appellant

Seoul Administrative Court Decision 2015Guhap57901 decided October 22, 2015

May 17, 2016

5, 2016.31

1. The plaintiffs' appeal is dismissed.

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

The judgment of the first instance is revoked. The Defendant’s disposition to recover KRW 238,254,820 of the medical care benefit cost provided to Plaintiff A on December 2, 2014 and disposition to recover KRW 401,690,300 of the medical care benefit cost provided to Plaintiff B shall be revoked.

1. Details of the disposition;

A. From November 1, 201 to June 13, 2013, Plaintiff A, an oriental medical doctor, established a 'D Hospital' in Gangdong-gu Seoul Metropolitan Government (hereinafter "the instant hospital") under his/her name, and performed medical practice at the instant hospital. Plaintiff B, an oriental medical doctor, established the instant hospital in its name from June 14, 201 to June 13, 201, and performed medical practice at the instant hospital after opening the instant hospital in its name.

B. On December 2, 2014, the Defendant issued a disposition to recover medical care benefit costs of KRW 238,254,820 (the portion paid in relation to the medical treatment provided at the instant hospital from August 2, 2012 to June 13, 2013) to the Plaintiff, on the ground that “E established and operated the instant hospital under the name of the Plaintiffs, and violated Article 4(2) of the Medical Service Act” (hereinafter collectively referred to as “instant disposition”). The Plaintiffs filed an objection against the instant disposition with the Defendant on December 3, 2014, but the Defendant dismissed the Plaintiffs’ objection on January 28, 2015.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including branch numbers in case of additional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The Plaintiffs merely established and operated the instant hospital by running their business with E and jointly, and did not lend their names to E.

2) Article 4(2) of the Medical Service Act aims to prevent medical personnel from establishing a medical institution at many places with the license of another medical personnel. Even if the Plaintiffs leased their names to E, E did not violate Article 4(2) of the Medical Service Act, since only the instant hospital was established and operated. In addition, Article 4(2) of the Medical Service Act was not applicable since E lent the Plaintiff’s name prior to the establishment of Article 4(2) of the Medical Service Act and established and operated the instant hospital.

3) The interpretation that Article 4(2) of the Medical Service Act prohibits a medical person from lending the name of another medical person to the case of establishing one medical institution is in violation of the principle of clarity or the principle of excessive prohibition, thereby infringing on fundamental rights, such as the medical person’s freedom of occupation.

B. Relevant statutes

/ Medical Service Act

Article 4 (Duties of Medical Personnel and Heads of Medical Institutions) (2) No medical person may establish or operate a medical institution under the name of another medical person.

Article 33 (Establishment, etc.)

(2) No person, other than those falling under any of the following subparagraphs, may establish a medical institution. In such cases, a medical doctor may establish a general hospital, hospital, convalescent hospital or medical clinic; a dentist may establish a dental hospital or dental clinic; an oriental medical doctor may establish an oriental medical hospital, convalescent hospital or oriental medical clinic; and a midwife may establish a

1. A doctor, a dentist, a herb doctor, or a midwife;

(8) No medical person referred to in paragraph (2) 1 shall establish and operate two or more medical institutions under any pretext: Provided, That where a person who has not less than two medical licenses intends to establish a clinic-level medical institution, he/she may also establish a medical institution in one place only.

C. Determination

1) Determination on the first argument

In light of the following circumstances, Gap evidence 6, 7, 8, and 9-1, Gap evidence 11, 13-1, and 2, Eul's 1, and Eul's 6-2, and Eul's 6-2's 6-2's 6-2's 6-2's 6-2's 6-2's 6-2's 6-1's 6-2's 6-2's 1's 6-2's 6-2's 6-2's 1's 6-2's 6-2's 1's 6-2's 1's 6-2's 6-2's 1's 6-2's 1's 6-2's 6-2's 6-2's 6-2's 1's 6-3's 1's 6-2's 6-2's 1's 3's 7's '2'''s '2's '2'2's 's '2'2'2'.

2) Judgment on the second argument

A) Article 4(2) of the Medical Service Act provides that “A medical person shall not establish or operate a medical institution under the name of another medical person.” The main sentence of Article 33(8) of the Medical Service Act provides that “A medical person shall not establish or operate two or more medical institutions under any pretext.”

Article 4(2) of the Medical Service Act argues that the purpose of preventing the establishment of a medical institution is to prevent medical personnel from establishing more than one medical institution under the license of another medical personnel. However, Article 33(8) of the Medical Service Act prohibits medical personnel from establishing multiple medical institutions. As such, Article 4(2) of the Medical Service Act overlaps with Article 33(8) of the Medical Service Act inasmuch as the Plaintiffs asserts the purpose of Article 4(2) of the same Act, which is the same as that of the Plaintiffs, Article 4(2) of the Medical Service Act does not have any particular meaning. Furthermore, it is also necessary to prohibit medical personnel from establishing one medical institution under the name of another medical personnel inasmuch as medical personnel is likely to prevent a person from committing a violation of the Medical Service Act after having lent his/her old or bad credit status from establishing a medical institution, or operate one medical institution for profit-making purposes. Therefore, Article 4(2) of the Medical Service Act prevents medical personnel from establishing several medical institutions, by clarifying the responsibility for establishing and operating the medical institution and preventing the medical personnel from violating their obligations under the Medical Service Act.

B) In addition, retroactive legislation can be divided into a genuine class legislation that requires the application of the relevant facts or legal relations that have already been terminated by a new legislation and an in personam class legislation that provides for the deprivation of an individual’s legal status already formed under the existing law through an ex post facto legislation. Of these, it is a principle that it is not permitted by the principle of a rule of law that aims to protect the individual’s trust and legal stability. However, in principle, non-in personam class legislation is limited to the scope of a bridge between the reasons for public interest requiring retroactive effect, and the reasons for personal protection requesting retroactive effect. Furthermore, the principle of non-influence means that the relevant law cannot be applied to the completed facts before and after the enforcement of the Act, and it is not limited to the application of the Act on the Requirements for the Establishment of Medical Institutions after the enforcement of the Act (see, e.g., Supreme Court Decision 2014Da1270, Jun. 12, 2014).

C) Therefore, the establishment and operation of the instant hospital by E lending the name of the Plaintiffs violates Article 4(2) of the Medical Service Act.

3) Determination on the third argument

Article 4(2) of the Medical Service Act does not violate the principle of clarity because it is sufficiently foreseeable that an act may be sufficiently expected if a person has a sound common sense and ordinary legal sentiment. Moreover, Article 4(2) of the Medical Service Act is intended for the public interest such as the protection of national health and the sound operation of the National Health Insurance, and the prohibition of establishing a medical institution under a name of another medical person is justifiable and its legislative purpose is appropriate as a means to achieve the above legislative purpose, and the foregoing provision may infringe on the medical person’s freedom of occupation, but the public interest to achieve the above provision does not violate the principle of excessive prohibition.

3. Conclusion

Therefore, the judgment of the court of first instance is justifiable, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, assistant judge and assistant judge

Judges Min Young-young

Judge Chuncheon