[1] The meaning of “the act of establishing a non-medical person’s medical institution” prohibited under Article 33(2) of the Medical Service Act, and whether the medical institution itself constitutes a violation of the said provision in a case where the medical doctor operated the medical institution and operated it together with a non-medical person affiliated with the hospital (affirmative)

[2] Whether unjust enrichment collection under Article 57(1) of the National Health Insurance Act constitutes a discretionary act (affirmative)

[1] Article 33 (2) of the Medical Service Act / [2] Article 57 (1) of the National Health Insurance Act

[1] Supreme Court Decision 2006Do3750 Decided September 28, 2006, Supreme Court Decision 2018Do10779 Decided November 29, 2018 (Gong2019Sang, 248) / [2] Supreme Court Decision 2015Du3996 Decided June 4, 2020 (Gong2020Ha, 1367) en banc Decision 2010Hun-Ba375 Decided June 30, 201 (Hun-Ba177, 943)

A medical corporation shall be a medical foundation (Law Firm LLC et al., Counsel for the defendant-appellant)

National Health Insurance Corporation (Attorney Song Young-Gyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Nu69258 decided August 16, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Object of the disposition of unjust enrichment collection;

A. “Establishment of a non-medical person’s medical institution” prohibited under Article 33(2) of the Medical Service Act means that a non-medical person takes the lead in the recruitment and management of facilities and human resources of a medical institution, the report on establishment, the performance of medical business, the raising of necessary funds, the ownership of operational performance, etc. (see Supreme Court Decision 2018Do1079, Nov. 29, 2018). The hospital itself constitutes a violation of Article 33(2) of the Medical Service Act even in cases where a non-medical person and his/her affiliated medical person are engaged in the operation of a health examination center affiliated with a hospital (see Supreme Court Decision 2006Do3750, Sept. 28, 2006).

B. The lower court determined that it was reasonable to view that the Plaintiff, as a health insurance medical care institution, entered into a business partnership agreement with the Nonparty, who was a non-medical person, on the operation of the instant health care center, and divided the operating profit of the instant health care center into 2:8 (Plaintiffs):00). Then, the lower court determined that the costs of health care paid to the Plaintiff constituted a medical care benefit paid by a non-medical person to a medical care institution established in the same business with the medical person

C. Examining the reasoning of the lower judgment in light of the record, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal doctrine on the collection of unjust enrichment under Article 33(2

2. Deserting or abusing discretionary power;

A. Article 57(1) of the National Health Insurance Act provides that “The NHIS shall collect, in whole or in part, an amount equivalent to the relevant insurance benefits or expenses for insurance benefits from a person who has received insurance benefits or a medical care institution that has received expenses for insurance benefits by deceit or other fraudulent means.” The legislative purpose of the provision is to ensure the soundness of the finance for health insurance and medical benefits through the maintenance of a desirable benefit system by preventing a medical care institution from claiming the payment of expenses for benefits in an unjust manner (see Constitutional Court en banc Decision 2010Hun-Ba375, Jun. 30, 201). However, as a medical care institution as a result of a failure to recover the expenses for health care benefits already provided due to the collection of unjust enrichment, its indive nature is high.

Considering the contents of the aforementioned relevant provisions, stay and legislative purport, and the legal nature of collecting unjust enrichment, it is reasonable to view that the collection of unjust enrichment under Article 57(1) of the National Health Insurance Act is a discretionary act. Moreover, it is reasonable to deem that the collection of unjust enrichment against the founder of a medical institution without considering the medical care institution’s content and amount of medical care benefit costs, the role and illegality of the founder in the process of establishing and operating the medical institution, the degree of attribution of the performance of the medical care institution, the degree of profit gained by the name of the founder, and other cooperation with the investigation, barring any special circumstances, it constitutes a violation of the principle of proportionality and an abuse of discretionary power (see Supreme Court Decision 2015Du3996, Jun. 4, 2020).

B. According to the records, the Plaintiff asserted that the first instance court and the lower court constituted a deviation or abuse of discretionary power, and that there is also the same argument in the grounds of appeal concerning the scope of collection of the medical care benefit cost. Nevertheless, the lower court erred by misapprehending the legal doctrine on the principle of insufficient deliberation and proportionality, and the deviation or abuse of discretionary power, etc., thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal pointing this out is with merit.

3. Violation under Article 106 of the National Health Insurance Act;

The allegation in this part of the grounds of appeal is all filed first in the final appeal and cannot be a legitimate ground of appeal.

4. Conclusion

Therefore, the lower judgment is reversed, and 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 Noh Tae-tae (Presiding Justice)