Plaintiff (Law Firm LBS Partners et al., Counsel for the plaintiff-appellant)

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

February 28, 2019

Seoul Administrative Court Decision 2017Guhap75507 decided August 23, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The Defendant’s disposition to recover medical care benefit costs rendered by 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 service date of the application for modification of the purport of the claim and the cause of the claim, and 15% interest per annum from the next day to the day of full payment.

1. cite the reasoning of the judgment of the first instance;

The reasoning of this Court regarding this case is as stated in the reasoning of the judgment of the court of first instance, except for adding a judgment on the allegations raised by the plaintiff to this court as stated in Paragraph (2). Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure

2. Determination as to the additional argument

A. As to the assertion that the instant member complies with the standards for facilities and equipment of a psychiatrist

1) The plaintiff's assertion

In accordance with Article 12(1) of the former Mental Health Act and Article 7(1) [Attachment Table 2] of the Enforcement Rule of the former Enforcement Rule of the Mental Health Act, the hospitalization room of the instant council members was legally installed as a mental medical clinic who can sufficiently hospitalize 49 patients, such as complying with the standards for the minimum floor area per in-patient.

Even if the instant member had a hospital room with at least 50 patients, he/she does not have any obligation to meet the standards for facilities and equipment of “psychotics” or to obtain permission to establish a mental hospital.

Ultimately, the Plaintiff did not violate the standards and procedures under the Act on the Standards for Recognition of Medical Care Benefits.

2) Determination

According to Article 12(1) of the former Mental Health Act and Article 7(1) [Attachment 2] of the former Enforcement Rule of the Mental Health Act, a psychiatrist may have a sick room with the upper limit of 49 patients, and if he/she intends to have at least 50 patients, he/she shall be equipped with various facilities and equipment to be equipped by a mental hospital and obtain permission to establish a mental hospital.

Therefore, even if the instant member was equipped with the minimum floor area for each patient and treatment room for a psychiatrist, the medical care benefits provided to more than 49 patients out of the inpatients are in violation of the criteria for recognition of medical care benefits [Article 5 (1) 1 (d) of the former Rules on the Standards for Medical Care Benefits in National Health Insurance] because it does not have adequate facilities and equipment necessary for the medical care benefits. The Plaintiff’s assertion on this part is without merit.

B. As to the allegation that the Plaintiff did not gain unjust benefits

1) The plaintiff's assertion

The purport and nature of restitution of unjust enrichment under the former National Health Insurance Act shared the essence of unjust enrichment that “if there is a transfer of property value contrary to the concept of equity, it shall return such benefit from the beneficiary to the victim.” Therefore, the requirements for restitution under Article 57(1) of the former National Health Insurance Act, “where the payment is made by claiming, even though it is not possible to receive medical care benefit costs under the relevant statutes,” is based on the premise that the receipt of medical care benefit costs constitutes gains without legal cause for the recipient, i.e., unjust enrichment. Even if medical treatment in violation of the medical care-related Acts and subordinate statutes, the degree of illegality is not high, and if it is deemed that medical care benefits have been paid to the citizens as a whole, it does not constitute “expenses not payable as medical care benefit costs”

The degree of illegality of the instant council members’ violation of the standards for facilities and equipment does not exceed that of making the instant council members’ and the instant patients null and void a medical contract concluded between the instant council members and the instant patients, and the pertinent medical care benefits were provided irrespective of the violation. Therefore, the medical care benefit costs for this case

2) Determination

As seen earlier, if a medical care institution received medical care benefit costs in violation of the standards and procedures set forth in the statutes on the criteria for recognition of medical care benefits, it constitutes a case where, in principle, the medical care institution receives the medical care benefit costs in violation of Article 57(1) of the National Health Insurance Act. Therefore, the requirements for the disposition of recovering insurance benefit costs, method of exercising such expenses, etc. under Article 57(1) of the National Health Insurance Act cannot be deemed the same as a civil claim for restitution of unjust enrichment

However, since the medical care benefits provided to more than 49 patients from among the inpatients of the instant council members violated the criteria for recognition of medical care benefits, the medical care benefits related to the provision of medical care benefits to patients are subject to recovery disposition regardless of whether the contract between the Plaintiff and the relevant inpatients is valid under the private law, and the size of the illegality is what extent. The Plaintiff’

C. As to the argument about the scope of restitution disposition

1) The plaintiff's assertion

A) The former Health Insurance Act’s health insurance benefit, the list of benefits and relative value points (amended by the Ministry of Health and Welfare’s notice No. 2017-37, Feb. 28, 2017; hereinafter “instant notice”) provides that “In order to calculate hospital fees, etc., the current status of hospital rooms and beds shall be reported to the medical care institution.” This is merely a provision for the Defendant’s administrative convenience, and thus, it does not mean that the claim for medical care benefit costs and the receipt of the patient in excess of the reported details are unreasonable.

Meanwhile, inasmuch as the instant announcement provision was enforced from September 1, 2014, the medical care benefit cost should be calculated based on the number of beds actually operated, not on the number of beds (49 beds) reported in the instant member’s hospital, at least on the hospitalization fees and food expenses before September 1, 2014, but on the basis of the number of beds actually operated.

In addition, the notice of this case does not have a provision on the report of the current status of the sick room and beds in order to calculate the fees for examination, basic medical examination fees, medicine, materials, preparation fees, treatment and treatment in addition to the hospitalization fees and food expenses. Therefore, there is no room to deem that there is a fraudulent or other improper means in relation to the inspection fees, etc.

B) Furthermore, even if the instant medical care benefit cost received after the instant member operated in excess of the beds permissible in a mental medical clinic falls under “expenses not payable as medical care benefit costs pursuant to the relevant statutes,” its scope should be limited to the part having normative causal relations with the violation of the standards for facilities and equipment. Medical care benefits in connection with the excess of hospitalization are limited to hospital fees, and thus, it cannot be subject to the disposition of recovery of medical care benefit costs.

2) Determination

A) The instant disposition is not based on the violation of the obligation to report the sick room and the number of sickbeds pursuant to the instant notice, and thus, hospital fees and other medical care benefit costs than meal expenses are not subject to the restitution disposition, or medical care benefit costs provided prior to the establishment of the duty to report are not subject to the restitution disposition.

B) Also, the purport of the disposition to recover the medical care benefit cost prescribed in Article 57(1) of the former National Health Insurance Act is to reinstate the unfairly paid medical care benefit cost. Thus, barring any special circumstance, it is a principle to collect the full amount of the medical care benefit cost. ② In the case of an in-patient, it is natural to view that the treatment act, such as hospitalization, diagnosis, medication, medication, injection, etc., conducted before and after the hospitalization, corresponds to the actual medical care. ③ In the case of an in-depth patient, the medical treatment act for over 49 patients, who are the council-level medical institution of this case, is not allowed to commit an illegal act, and even if the medical treatment itself was actually performed by the council of this case, it cannot be claimed as a justifiable medical care benefit cost. Therefore, the medical care benefit cost generated and paid in the course of the treatment of the above in-depth patients, in full, shall be subject to the disposition to recover the whole amount of the medical care benefit cost, such as food, examination fees, basic diagnosis fees, pharmaceutical material, treatment

The plaintiff's assertion on this part also cannot be accepted.

D. As to the assertion of deviation and abuse of discretionary power

1) The plaintiff's assertion

Pursuant to the guidelines on on the on-site investigation of medical care institutions, it was a practice to recover only a maximum of three-year medical care benefit cost from the date of investigation to the medical care institution. The instant disposition was subject to recovery of the medical care benefit cost provided for a period of at least seven years from May 30, 2009 to July 30, 2017, and was excessively harsh to the Plaintiff and abused its discretionary power.

2) Determination

As seen earlier, the purpose of Article 57(1) of the former National Health Insurance Act is to recover the medical care benefit cost unfairly received by a medical care institution. Accordingly, in order to promote the soundness of the national health insurance finance and ensure operational transparency, the public interest needs to strictly control and manage the medical care benefit cost. If the insurance benefit or insurance benefit cost received by a policyholder or a medical care institution is found to have been “infinitely controlled or otherwise infinite,” the “total amount” of the insurance benefit or insurance benefit cost is subject to restitution (i.e., the “total or partial amount” under Article 57(1) of the same Act is deemed to have been recovered if the amount unjustly received is all or part of the medical care benefit cost, it is reasonable to view that the scope of recovery can not be arbitrarily adjusted. Accordingly, the Plaintiff’s assertion that the instant disposition in this case constitutes discretionary act is without merit.

Even if there is room for discretion regarding the scope of restitution disposition by the Defendant, considering the following: (a) the purpose and purport of Article 57(1) of the former National Health Insurance Act; and (b) the need for public interest to strictly control and manage medical care benefit costs in order to promote the soundness of the finance of national health insurance; and (c) ensure operational transparency, it cannot be deemed that the public interest intended to achieve the disposition of this case is smaller than the disadvantage the Plaintiff

On the other hand, the Ministry of Health and Welfare’s guidelines on on on-site investigations of medical care institutions (see January 2017) provides that where false or unjust claims are confirmed during the investigation process following a request for an investigation, an on-site investigation shall be conducted within a maximum of 36 months based on the most recent amount of medical treatment provided from the date of issuance of the order for investigation, and where the period of request for investigation includes 36 months prior to the latest payment month, the relevant month shall confirm whether a request for unfair claims is made in the field investigation

However, the above guidelines are based on Article 97(2) of the National Health Insurance Act and Article 32(2) of the Medical Care Assistance Act, and there is no external binding law as an internal administrative guidelines setting the method or standards for handling affairs. Furthermore, the above guidelines also allow an investigation into the period prior to 36 months, and do not limit the authority to recover medical care benefit costs to three years. Moreover, there is no evidence to deem that there is an internal practice of disposing of medical care benefit costs within the period of three years to the extent that the principle of self-regulation is applied.

Therefore, the fact that the instant disposition, which is the extinctive prescription period of the right to recover medical care benefit costs, is subject to more than 10 years, does not necessarily mean that it is unlawful because it deviates from and abused discretion. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is without merit.

Judges gate Charter (Presiding Judge)