Whether fraud is established in a case where a medical institution established by non-medical persons claims the payment of medical care benefit costs to the National Health Insurance Corporation as if it were legally established medical care institutions under the Medical Service Act (affirmative)

Article 42(1)1 of the National Health Insurance Act limited to “medical institution established under the Medical Service Act” among medical care institutions that are capable of providing medical care benefits. Therefore, if medical care benefits such as providing medical treatment to patients at a lawfully established medical institution in violation of Article 33(2) of the Medical Service Act, the pertinent medical institution is not eligible for lawful payment of medical care benefits since it does not constitute a medical care institution that can claim medical care benefits under the National Health Insurance Act. Therefore, as if the medical institution established by non-medical person is a medical care institution legally established under the Medical Service Act, claiming the payment of medical care benefits to the National Health Insurance Corporation would cause error in the decision-making on the payment of medical care benefits, thereby constituting deception in fraud. In such a case, if the National Health Insurance Corporation receives medical care benefits by such deception, fraud is established. The same applies to the case where a non-medical person, who is the founder of a medical institution, lends the name of a non-medical person,

Article 347 of the Criminal Act; Articles 33(2), 87(1)2 of the Medical Service Act; Articles 42(1)1 and 57(1) of the National Health Insurance Act

Supreme Court Decision 2011Du21669 Decided January 27, 2012 (Supreme Court Decision 2012Da72384 Decided May 14, 2015)

Defendant

Defendant

Law Firm Initial, Attorneys Lee Dong-soo et al.

Seoul Northern District Court Decision 2014No657 decided August 22, 2014

The appeal is dismissed.

The grounds of appeal are examined.

Article 33(2) and Article 87(1)2 of the Medical Service Act prohibit any person without a license to establish a medical institution from establishing a medical institution by restricting the qualifications of a medical institution founder, an oriental medical doctor, etc. In such a case, criminal punishment is imposed. This is to prevent possible risks to national health, which may arise when establishing a medical institution for the purpose of establishing sound medical order and profit-making by strictly restricting the qualifications for establishing a medical institution to those with expertise or who have public character (see Supreme Court Decision 2009Do2629, Oct. 27, 201). Furthermore, Article 42(1)1 of the National Health Insurance Act limits the medical institution, one of the health care institutions that can provide health care benefit, to “medical institution established under the Medical Service Act.” Therefore, if the medical institution lawfully established a medical institution in violation of Article 33(2) of the Medical Service Act provides health care benefit under the name of the National Health Insurance Corporation, the pertinent medical institution is not entitled to medical care benefit benefit under the National Health Insurance Corporation Act. This is established.

The lower court affirmed the first instance judgment convicting the Defendant of fraud among the facts charged in the instant case, on the ground that: (a) the medical institution established in violation of the Medical Service Act cannot be legally incorporated into the insurance system under the National Health Insurance Act; and (b) even if the Defendant actually provided the medical care benefits to the patient through a legitimate license, the National Health Insurance Corporation could not claim for the medical care benefits lawfully against the National Health Insurance Corporation; and (c) the National Health Insurance Corporation did not pay the medical care benefits if it was known that the non-medical person was established and was not a lawful medical institution; and (d) the instant medical institution was not a lawful medical institution; and (e) the instant medical

Examining the above legal principles and evidence duly adopted and examined by the first instance court, the lower court’s aforementioned determination is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the establishment of fraud and the burden of proof in criminal proceedings, or by misapprehending the principle of no punishment

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)