[1] Whether the Health Insurance Review and Assessment Service’s excessive personal charges to be verified and notified pursuant to Article 43-2(1) and (2) of the former National Health Insurance Act include “expenses received by mutual agreement with the health care institution to conduct medical treatment at will and be treated as health care expenses with the insured, etc.” (affirmative in principle)

[2] In a case where a medical care institution conducts arbitrarily non-benefit medical treatment and does not constitute excessive personal charges, the medical care institution bears the burden of proof (=medical care institution)

[3] Where the Act on the Standards for Medical Care Benefits, etc. was amended after medical treatment by a medical care institution, whether the Act on the Standards for Medical Care Benefits, etc. can be applied retroactively to the time of medical treatment (negative in principle).

[1] Article 43-2 (1) (see current Article 48 (1) and (2) (see current Article 48 (2)) of the former National Health Insurance Act (Amended by Act No. 9386, Jan. 30, 2009); / [2] Article 43-2 (1) (see current Article 48 (1) and (2) (see current Article 48 (2)) of the former National Health Insurance Act (Amended by Act No. 9386, Jan. 30, 2009); / [3] Article 43-2 (see current Article 48) of the former National Health Insurance Act (Amended by Act No. 9386, Jan. 30, 2009)

[1] [3] Supreme Court Decision 2011Du3524 Decided August 17, 2012 (Gong2012Ha, 1554), Supreme Court Decision 2011Du1068 Decided September 27, 2012 / [1] Supreme Court en banc Decision 2010Du27639, 2010Du27646 Decided June 18, 2012 (Gong2012Ha, 1312)

Plaintiff 1 and 14 others (Attorney Park Young-hoon et al., Counsel for the plaintiff-appellant-appellee)

Health Insurance Review and Assessment Service (Law Firm Hun-Myeon, Attorneys Southern-gu et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu11919 decided October 8, 2010

Of the lower judgment, the part of the lower judgment, excluding the confirmation and notification of excessive personal charges against Plaintiff 9 on September 22, 2009, is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the subject of the disposition of confirmation and notification

A. (1) According to Articles 41 and 43-2 of the former National Health Insurance Act (amended by Act No. 9386, Jan. 30, 2009; hereinafter the same), a policyholder of a national health insurance or his/her dependent (hereinafter “subscriber, etc.”) may request the defendant to verify whether the expenses incurred in relation to the medical care benefits, other than the amount of co-payment that should be borne by himself/herself, are excluded from the subject of the medical care benefits under Article 39(3). Upon receipt of such request, the requested defendant shall notify the relevant medical care institution of the purport that the expenses requested for confirmation are excessive charges, and the medical care institution so notified shall promptly pay the person requesting the confirmation an excessive personal charges.

Based on the purport of the national health insurance system, the system of the National Health Insurance Decree, such as the subject of, criteria for, and procedures for, medical care benefits, legal principles on non-benefit eligibility, etc., is examined. In principle, unless the so-called legal non-benefit treatment that is excluded from the subject of medical care benefits under Article 39(3) of the former National Health Insurance Act is not the legal non-benefit treatment, a health care institution shall provide health care benefit to subscribers, etc. in accordance with the standards and procedures prescribed by the Act and subordinate statutes on the criteria for recognition of health care benefits. In the event that an insurer, etc. is paid health care benefit from the insured, etc., the standard and procedure prescribed by the Act and subordinate statutes on the criteria for calculation are complied with [see Supreme Court en banc Decision 2010Du27639, 2010Du27646, Jun. 18, 201] The scope of excessive charges that the Defendant has to verify and notify under Article 43-2(1) and (2) of the former National Health Insurance Act includes not only the medical care institution’s “in principle” but also the self-payment.

(2) However, on the other hand, given that a medical person, etc. is not obligated to perform the best medical treatment pursuant to a medical contract concluded with a subscriber, etc., as well as that a medical person, etc. is obligated to endeavor to provide a patient with the best medical service pursuant to the Medical Service Act, and a patient, such as a subscriber, etc. is entitled to receive effective and appropriate medical treatment without any excessive burden of expenses for illness, injury, etc., even in cases where the medical care institution arbitrarily provides non-benefit medical treatment outside the National Health Insurance framework and received such expenses from the subscriber, etc., (i) under the relevant Acts and subordinate statutes implemented at the time of such medical treatment, such as inclusion into the medical care benefit object or non-benefit within the National Health Insurance framework or the relevant medical care benefit cost can be reasonably adjusted, or even if such procedures are provided, it is difficult to deem that the medical care institution avoided it in light of specific circumstances such as the content and urgency of such procedure, the medical care institution’s medical treatment should be deemed to have been provided beyond the medical safety and effectiveness, as well as the medical care benefit recognition standard.

B. The court below determined to the effect that with respect to each of the dispositions of this case against the plaintiffs 9 except for the disposition of confirming and notifying excessive principals' charges as of September 22, 2009 listed in the attached disposition list Nos. 3 of the judgment below against the plaintiff 9 among the dispositions of this case, medical care institutions conduct medical treatment and collect the expenses from the subscribers, etc., the medical care institutions must necessarily follow the standards and procedures prescribed by the relevant Acts and subordinate statutes, and the insurer shall not be charged with the patient's expenses which cannot be claimed from the insurer because they exceeded the medical care benefits standards, and the medical treatment act is medically appropriate, and it does not change from the fact that the medical care institution was medically proper, the medical care institution of this case conducted by the plaintiffs with the mother during the operation of the medical care institution does not fall under the medical care benefits subject to the Act on the Medical Care Benefits Recognition at the time of its enforcement, and the medical care act does not fall under the medical care benefits subject to the legal non-benefit treatments.

C. However, in light of the legal principles as seen earlier, the Plaintiffs’ assertion to the effect that, even if the instant non-payment treatment constitutes a voluntary non-payment treatment, the costs thereof do not constitute an excessive personal charges. Therefore, the lower court should have deliberated and determined whether the costs of the instant non-payment treatment cannot be viewed as an exceptionally excessive personal charges.

Therefore, this part of the judgment of the court below is erroneous in the misunderstanding of legal principles on the objects of the confirmation and notification of excessive principal charges under Article 43-2 (1) and (2) of the former National Health Insurance Act, which led to failure to exhaust all necessary deliberations, which affected the conclusion

2. As to the misapprehension of legal principles as to the application of amended Acts and subordinate statutes on medical care benefit standards

In light of the principle of the rule of law and the provisions of Article 13 of the Constitution, barring special provisions, such as the provision of transitional provisions that the new law shall apply in favor of the persons subject to the amendment, the former law prior to the amendment shall be applied instead of the new law after the amendment: Provided, That even if the new law is retroactively applied, where there is no direct relation to the interests of the general public, and where there are special circumstances, such as where the benefit is promoted, where disadvantage or pain is removed, the retroactive application of the law shall be exceptionally allowed (see Supreme Court Decisions 2001Du3228, Dec. 10, 2002; 2004Da8630, May 13, 2005, etc.).

Whether a medical care institution’s expenses are excessive charges for medical care institutions, and the relevant medical care institution’s expenses are determined based on the standards for medical care benefits and the standards for calculation of medical care benefits prescribed by Acts and subordinate statutes implemented at the time of receiving such expenses. Thus, whether a medical care institution’s expenses received in return for medical care constitute excessive charges pursuant to Article 43-2 (1) and (2) of the former National Health Insurance Act shall be determined based on the relevant Acts and subordinate statutes not on the amended medical care benefits standards, but on the basis of the standards for medical care benefits, etc. at the time of such medical care. The understanding of the amended medical care benefits standards, etc. is inconsistent with those of the operator of the medical care institution, barr

In the same purport, the court below is just in holding that the above revised provisions cannot be applied retroactively to the inspection of the proteperics in the mountain of this case conducted before it was implemented on March 10, 2009 by the Ministry of Health and Welfare’s announcement No. 2009-45 on March 10, 2009, which was amended by the Ministry of Health and Welfare’s announcement No. 2009-45 on March 15, 2009, which was based on delegation of Article 39(2) of the former National Health Insurance Act and Article 5(2) of the Regulations on the Standards for Medical Care Benefits, etc.

3. Conclusion

Of the lower judgment, the part of the lower judgment regarding Plaintiff 9, excluding the disposition of confirmation and notification of excessive personal charges as of September 22, 2009, is reversed, and this part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)