Plaintiff (Law Firm Sejong, Attorneys Shin Tae-ok et al., Counsel for the plaintiff-appellant)

The Minister of Health and Welfare (Law Firm Hun-Myeon, Attorney Nam-Un, Counsel for defendant-appellant)

October 19, 2012

Seoul Administrative Court Decision 201Guhap12603 decided November 10, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

A disposition for one year (from May 9, 2011 to May 8, 2012) of the suspension of the business of a medical care institution conducted by the Defendant against the Plaintiff on March 29, 2011, and a disposition for one year of the suspension of business of a medical care institution conducted on April 5, 2011 (from May 9, 201 to May 8, 201) shall be revoked, respectively.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. From August 24, 2005, the Plaintiff operated ○○ Medical Care Assistance Act (hereinafter “instant member”), a medical care institution under the National Health Insurance Act, as a medical care institution under the National Health Insurance Act.

B. From July 13, 2010 to July 13, 2010, the Defendant conducted an on-site investigation into the medical records from May 2009 to July 7, 2009; from March 201 to May 2010, the Defendant designated five employees under its control; three employees under the Health Insurance Review and Assessment Service; and one employee under the National Health Insurance Corporation.

C. On July 13, 2010, employees belonging to the Health Insurance Review and Assessment Service and employees belonging to the National Health Insurance Service demanded the Plaintiff to submit insurance benefits and relevant documents (where the above records are stored and preserved by a computerized recording device, including the computerized recording device) including medical records and personal charge collection ledger prepared during the above investigation period. However, the Plaintiff did not submit computerized data on medical records stored and preserved by an electronic recording device.

D. On July 14, 2010, employees belonging to the Defendant and employees of the Health Insurance Review and Assessment Service demanded the Plaintiff to submit electronic records once again, but the Plaintiff did not comply with the said request on the grounds that the Plaintiff did not have any legal obligation to submit electronic records.

E. On March 29, 2011, the Defendant issued each disposition under Article 85(1)2 of the National Health Insurance Act against the Plaintiff on the ground that “The Defendant violated an order to submit data related to benefits (including DB) under Article 84(2) of the National Health Insurance Act,” each of the disposition under Article 28(1)3 of the Medical Care Assistance Act, on the ground that the suspension of the operation of a medical care institution is one year (from May 9, 2011 to May 8, 2012) pursuant to Article 85(1)2 of the National Health Insurance Act, and on April 5, 2011, “the Defendant violated an order to submit the relevant documents under Article 32(2) of the Medical Care Assistance Act” (hereinafter each of the above dispositions referred to as “instant disposition”).

[Ground of Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, and 3 evidence 1 to 3, Gap evidence 4, Gap evidence 5-1 to 3, Gap evidence 6-1 to 5, Gap evidence 7 through 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The employees of the Health Insurance Review and Assessment Service, who are not employees belonging to the defendant, are not entitled to conduct on-site investigations.

2) In addition, the Plaintiff is not obligated to submit computerized records, and the Defendant’s request for submission of computerized data other than the investigation period stated in the Defendant’s investigation order and request form is unlawful, and the Plaintiff cannot be deemed to have violated an order for submission of insurance benefits and medical benefits under the National Health Insurance Act and the Medical Care Assistance Act on the ground that the Plaintiff did not submit computerized records

3) Even if the Plaintiff violated the Defendant’s order to submit the relevant documents, the Plaintiff’s refusal to submit the documents is reasonable in light of the circumstances of the instant case, and the instant disposition that issued a disposition of business suspension for one year without considering it is unlawful as it constitutes a deviation or abuse of discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether an investigation is conducted by an unqualified person

However, the Health Insurance Review and Assessment Service, established pursuant to Article 55 of the National Health Insurance Act, may conduct the review of health care benefit costs, the assessment of the reasonableness of health care benefit costs, the examination of the health care benefit costs paid pursuant to other Acts, or the assessment of the appropriateness of medical care. The National Health Insurance Corporation may examine the appropriateness of the insurance benefits by requiring the person who received the insurance benefits to submit documents and other items, or by requiring the relevant person to question or diagnose the relevant person. Thus, even if the employees of the Health Insurance Review and Assessment Service and the National Health Insurance Corporation participated in the field investigation of the instant member at the time of the instant field investigation of the instant member, such participation is deemed the participation of the person who directly performs public duties in accordance with the Defendant’s order. Although a public official belonging to the Defendant did not directly conduct the field investigation and investigation on July 13, 2010, it cannot be deemed an illegal investigation since the instant public official belonging to the Defendant directly conducted the instant member on July 14, 2010.

2) Whether the order to submit relevant documents was violated

A) The purpose of legal interpretation ought to be to find a concrete feasibility within the extent that does not undermine legal stability. Furthermore, as a matter of principle, the statutory interpretation ought to be faithfully interpreted in that process. Furthermore, a systematic and logical interpretation ought to be reasonable in response to the request for legal interpretation by additionally using the method of systematic and logical interpretation that takes into account the legislative intent and purpose of the law, its legislative intent and purpose, history, harmony with the entire legal order, relationship with other Acts and subordinate statutes (see Supreme Court Decisions 2006Da81035, Apr. 23, 2009; 2010Da81254, Dec. 23, 2010).

In light of the above legal principles, in light of the following circumstances acknowledged as a whole by comprehensively taking account of the evidence and the overall purport of evidence Nos. 1 and 2 as well as the entire purport of arguments, it is reasonable to interpret that the relevant documents under Article 84(2) of the National Health Insurance Act and Article 32(2) of the Medical Care Assistance Act include computerized records. Accordingly, the Plaintiff’s assertion on the different premise is without merit.

(1) The purpose of both insurance benefits and medical benefits under the National Health Insurance Act is to improve national health and promote social security. Article 84(2) of the National Health Insurance Act and Article 32(2) of the Medical Care Assistance Act provide that the State can secure data held by a health care institution and properly evaluate the appropriateness of insurance benefits or medical benefits. Meanwhile, Article 83(1) and (3) of the National Health Insurance Act provides that the Corporation and the Review and Assessment Service may request the health care institution to provide necessary data for the health insurance program, and that the health care institution so requested shall comply with such request in good faith. Article 84(4)1 of the National Health Insurance Act provides that the Corporation and the Review and Assessment Service shall have the authority to request the comprehensive submission of data. Article 84(4)1 of the National Health Insurance Act provides that the Minister of Health and Welfare may order the organization that vicariously executes the request for review of the health care benefit cost to submit necessary data, or require its public officials to

In light of the above legislative purpose and the contents of relevant provisions, etc., if there are several different expressions in the form of computer system when there was no medical records in the legislative history, it is reasonable to interpret Article 84(2) of the National Health Insurance Act and Article 32(2) of the Medical Care Assistance Act as the meaning of comprehensively guaranteeing the defendant the right to request submission of data as long as it is deemed necessary. It is reasonable to deem that the provision that the electronic records are included in the related documents under [Attachment Table 5] subparagraph 1(b) of Article 61 of the Enforcement Decree of the National Health Insurance Act and Article 33 [Attachment Table 3] subparagraph 1(b) of the Enforcement Rule of the Medical Care Assistance Act is to specify the contents of the mother law.

(2) Article 22(1) and (2) of the Medical Service Act provides that a medical person shall prepare a medical record, etc. and shall record and sign the matters and opinions concerning the relevant medical practice in detail, and that the Medical Service Act may exist in the form of computerized data by including an electronic medical record under Article 23(1) of the same Act in such medical record. However, Article 21(2) of the Medical Service Act lists cases where a medical person or an employee of a medical institution is obligated to verify matters such as perusal of records or issuance of copies thereof to a person other than the patient, and among subparagraph 4 thereof, provides such cases to the National Health Insurance Corporation or the Health Insurance Review and Assessment Service for the examination, payment, confirmation of eligibility for benefits, and confirmation of eligibility for post management, and evaluation and provisional payment of the health care benefits, etc. pursuant to Articles 13, 43, 43-2 and 56 of the National Health Insurance Act, Article 5, 11, 11-3 and 33 of the Medical Care Act shall be included in the examination and assessment Service Act.

However, if the medical record that was treated equally regardless of its existence form under the Medical Service Act is treated differently depending on its existence form in Article 84(2) of the National Health Insurance Act and Article 32(2) of the Medical Care Assistance Act, there is a problem in securing the system of legal order. Moreover, if a medical practitioner prepares a medical record in the form of paper, he/she should submit it, and if it is considered that a medical practitioner cannot submit it in the form of computer, it would result in an ordinarily unreasonable result.

Therefore, it is reasonable to interpret that the relevant documents under Article 84 (2) of the National Health Insurance Act and Article 32 (2) of the Medical Care Assistance Act include computerized records in light of the relationship with the Medical Service Act.

(3) An offender under Article 84(2) of the National Health Insurance Act is a medical care institution, and an offender under Article 32(2) of the Medical Care Assistance Act is not all the general public as an institution providing medical benefits. Meanwhile, the National Health Insurance Act was enacted on February 8, 1999. The first Enforcement Decree was enacted on June 23, 200. The first Enforcement Decree of the National Health Insurance Act explicitly stated that electronic records are included in the documents related to Article 61(1) [Attachment 5] subparagraph 1(b). The first Enforcement Decree of the National Health Insurance Act also revised on May 24, 2001. The first Enforcement Rule of the Medical Care Act was revised on October 9, 2001. The first Enforcement Rule of the Medical Care Assistance Act also explicitly stated that the electronic records of the medical care institution or the institution providing medical care were included in the documents related to subparagraph 1(b) [Attachment 3] under Article 33 [Attachment 3] of the Enforcement Rule of the Medical Care Assistance Act. Therefore, it seems that the Defendant’s relevant documents or regulations were formulated within 20 years.

(4) In light of the Plaintiff’s claim for insurance benefits, etc., it appears that it would be possible to accurately and efficiently grasp the Plaintiff’s improper claim by comparing and analyzing the data recorded in the Plaintiff’s computerized medical records, and the output of computerized data would not appear in writing to make it difficult to confirm whether the Defendant’s investigation, such as the time of electronic data receipt and the time of medical examination, would make it difficult to confirm whether the claim is illegal, and the computerized data would be easily changed. Therefore, if the data are not immediately submitted at the time of an on-site investigation, it would considerably undermine the effectiveness of the on-site investigation, it would be highly necessary to interpret

B) Meanwhile, in light of the fact that the Plaintiff did not submit the computerized data itself to the Defendant, in the case of computerized data, the Plaintiff must collect the period subject to an on-site investigation by having the data submitted in its nature, and the period subject to an on-site investigation is specified in the investigation order, and even if all computerized data are submitted, the period subject to an on-site investigation can be deemed as only the period subject to an on-site investigation. In light of the above, the Defendant’s request for the submission of computerized data cannot be deemed unlawful merely because

3) Whether the discretionary authority is deviates or abused

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the act of violation and the public interest to be achieved by the act of violation as the ground for the disposition. In this case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal business rules, and it has no effect to the public and court externally, and whether such disposition is legitimate or not shall be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes as well as the above criteria for disposition. Thus, it cannot be said that the pertinent disposition is legitimate immediately in conformity with the above criteria for disposition. However, unless the above criteria for disposition do not in itself conform with the Constitution or laws, or there are reasonable grounds to believe that the sanction administrative disposition in accordance with the above criteria for disposition is significantly unreasonable in light of the content and purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du6964.

In light of the above legal principles, in light of the following circumstances acknowledged by comprehensively considering the above evidence and the purport of the entire pleadings, it is difficult to deem that the instant disposition deviates from the scope of discretion or abused it, and there is no evidence to acknowledge otherwise. Accordingly, the Plaintiff’s assertion on this part is without merit.

A) Since medical records stored in the form of computerized data are judged as essential data for evaluation of the reasonableness of medical care benefits, the above order for submission of medical records is violated, the period of suspension of business of medical care institutions and institutions providing medical care shall be set as one year and be disposed of to the point of violation of other unfair claims or orders for submission of documents

B) Considering that there is a possibility of ex post facto manipulation of computerized records, etc. related to benefits, it shall be deemed that the violation of the order to submit a report is established immediately because the Plaintiff did not submit the report despite the Defendant’s submission order.

C) The Plaintiff had previously claimed medical care benefits in advance and had been recovered KRW 27,774,680 from the Defendant. Moreover, it seems that there was a false claim for medical care benefits even during the investigation period of the instant case.

D) The purpose of public interest is to prevent unfair and false claims for expenses for benefits is significant since they are acts that shaking the foundation of the national health insurance system operated with national health insurance premiums. On the other hand, the Defendant issued the instant disposition in accordance with the relevant laws and regulations, and the Plaintiff appears to have received several notification that business suspension may be imposed within the scope of one year if a public official belonging to the Defendant was not submitted computerized records, etc. at the time of an on-site investigation. In light of the above, it is difficult to see that the Plaintiff suffered disadvantage compared to the public interest purpose achieved by the instant disposition.

3. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair. The defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff'

[Attachment Form 5]

Judges Kim Jong-chul (Presiding Judge)

1) Article 84(2) of the National Health Insurance Act that provides for the right to request the submission of data to an organization that requested the submission of data on behalf of a medical care institution, which provides that the right to request the submission of data to a medical care institution, and its contents are different.