Plaintiff

National Health Insurance Corporation

April 23, 2004

Busan District Court Decision 2002Guhap517 delivered on August 21, 2003

1. The plaintiff's appeal is dismissed.

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

On January 23, 1987, the judgment of the first instance is revoked. It is confirmed that the Defendant did not have any unpaid amount among the notice of payment of unjust enrichment of KRW 27,416,180 against the Plaintiff.

1. Facts of recognition;

A. From December 18, 1982 to June 15, 1986, the Plaintiff, as a doctor, opened and operated (name omitted) Council members in Busan Dong-gu (detailed number omitted), and (name omitted) Council members in the same Gu from June 15, 1986 to September 2, 1986, respectively, and each of the above Council members was designated as medical insurance care institutions under the former Medical Insurance Act from the time of its establishment.

B. From July 1, 1985 to June 30, 1986, the Defendant (the enforcement of the National Health Insurance Act comprehensively succeeded to the rights and obligations of the Medical Insurance Federation under the former Medical Insurance Act) issued a false notice of payment of KRW 27,416,180 against the Plaintiff on the ground that the Plaintiff falsely prepared the medical treatment records of the patient who did not have been directly treated at the above two hospitals and filed an unfair claim for medical insurance medical expenses based on this, and accordingly, the Defendant issued a notice of payment of KRW 27,416,180 against the Plaintiff under Article 45 of the former Medical Insurance Act (amended by Act No. 4728 of Jan. 7, 1994; hereinafter the same shall apply) and the revocation of designation of the medical care institution for 180 days.

C. On the other hand, on May 1, 1987, the Minister of Health and Welfare issued a disposition suspending a doctor's license for a period of 12 months on the same ground to the Plaintiff, and as a result of the administrative litigation, the Plaintiff was found to have claimed the insurance benefit costs in a fraudulent manner, but the Plaintiff was found to have rendered a judgment in favor of the Plaintiff to the effect that the amount of unfair claims did not meet the criteria for administrative disposition but was illegal for 12 months even if the ratio of unfair claims was not satisfied. On January 25, 1990 (Supreme Court Decision 89Nu1902), the Minister of Health and Welfare revoked the disposition suspending the qualification against the Plaintiff on March 15, 199

D. From February 12, 1987 to August 24, 1994, the defendant notified the plaintiff of the payment demand of the above unjust enrichment more than 10 times, but the plaintiff did not comply with it, after obtaining approval of the disposition on default from the Minister of Health and Welfare on October 4, 1994, and on October 14, 1994, the total amount of the above unjust enrichment and its additional charges amounting to 29,818,498 won was seized, and the amount of delinquent local taxes related to the seizure was the amount of delinquent local taxes related to attachment, which the plaintiff seized the claim against the Republic of Korea in accordance with the judgment in favor of the lawsuit claiming damages (Seoul District Court 93Da3724), and notified the plaintiff thereof on October 27, 1994, the plaintiff recovered the above amount of 29,818,498 won, 1834,680 won, and then urged the payment period to be refunded to 36.1.6.28

E. On October 26, 199, the Plaintiff filed a lawsuit against the Federation of Medical Insurance on January 23, 1987 against the notification of unjust enrichment and the revocation of the designation of the medical care institution, and sought revocation of the notification of unjust enrichment as of July 28, 1999. However, on June 28, 2000, the period of filing a lawsuit from the Seoul Administrative Court was exceeded, and the said notification was revoked on the ground that it is not subject to appeal litigation (200Gu9044), and the said notification became final and conclusive as is.

【Evidence Evidence Evidence No. 1-3, Evidence No. 2, Evidence No. 9, Evidence No. 2, 3, 4, 7, 8, and 9, respectively, and the whole purport of the pleading

2. Determination on this safety defense

The defendant does not go through the procedure of pre-examination and re-examination as stipulated in Article 70 of the Medical Insurance Act, and as a result, it has been filed with the lapse of the period of filing the lawsuit stipulated in the Administrative Litigation Act.

On the other hand, according to Article 18(1) of the Administrative Litigation Act, the issue of whether to pass an administrative appeal is left to the plaintiff's choice. However, the above Article 70 of the Medical Insurance Act as amended by Act No. 5857 provides that if there is a provision that a lawsuit for cancellation cannot be filed without a decision on administrative appeal against the pertinent administrative disposition, it shall go through an administrative appeal. Even if such a necessary administrative disposition is required, it is necessary only to bring an administrative appeal against a lawsuit for cancellation of the relevant disposition or a lawsuit for confirmation of illegality of omission, or there is no need to bring an administrative appeal against a lawsuit for confirmation of nullity, etc., and Article 70 of the Medical Insurance Act as amended by Act No. 5857 of Feb. 8, 199 provides that a lawsuit for objection against the disposition on qualification of the insured, insurance premium, insurance benefit or expenses of insurance benefits shall be filed after being examined and reviewed. Since the above Article 70 of the Medical Insurance Act as amended by Act No. 5857 does not apply to a lawsuit for revocation of unjust enrichment or unlawful profits.

3. Judgment on the merits

A. The parties' assertion

(1) Plaintiff

㈎ 이 사건 처분은 피고의 직원인 소외 1, 소외 2가 공모하여 의료보험 실사자격도 없으면서 직권을 남용하여 1986. 9. 1.부터 1987. 2. 2.까지 원고에 대한 조사를 하면서 원고를 협박, 공갈하여 사실과 다르게 작성하도록 강요하여 만든 허위의 장부, 서약서, 각서 등을 토대로 이루어진 것이므로 무효이다.

㈏ 그렇지 않다 하더라도, 피고의 부당이득금 징수권의 소멸시효기간은 구 의료보험법 67조 에 의하여 2년이거나, 예산회계법 96조 에 의하여 5년이라 할 것인바, 피고가 1987. 1. 23. 부당이득금납부고지 및 1987. 4월경 독촉고지한 후 다른 재판상의 청구를 한 사실이 없으므로, 적어도 1987. 4월경으로부터 5년이 경과한 1992. 4월경에 소멸시효가 완성되었고, 그렇지 아니하고 그 소멸시효기간이 일반의 민사채권과 같은 10년이라 하더라도 1997. 4월경에 소멸시효가 완성되었다.

㈐ 따라서 위 부당이득 징수금 중 미납금은 존재하지 아니한다 할 것이므로 그 확인을 구한다.

(2) Defendant

The disposition of notifying the payment of unjust enrichment of this case is lawful in accordance with the relevant Acts and subordinate statutes, and the extinctive prescription of 10 years under the Civil Act is applied as a general bond, and the extinctive prescription was interrupted due to seizure around October 194.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination on the assertion of invalidation

As shown in the plaintiff's above argument, some of the statements of No. 4, No. 30, and testimony of the early salary of a witness at the trial court as shown in the plaintiff's above argument are hard to believe it as it is in light of the statements of No. 19, No. 1, No. 5, 8, and 9, and there is no other evidence to acknowledge it. Thus, the plaintiff's above assertion cannot be accepted.

(2) Determination on the assertion on the extinction of prescription

First, “the right to receive insurance benefit costs” subject to the short-term extinctive prescription of two years under Article 67(1) of the former Medical Insurance Act has the nature of medical expenses claimed by the insurer by the medical care institution. On the other hand, although the right to collect unjust enrichment of this case did not have any medical treatment, the right to claim the return of the benefit obtained without any legal cause by claiming the insurance benefit costs by fraudulent or other unlawful means, and its exercise subject and nature are different. In addition, the right to collect unjust enrichment of this case does not constitute “the right to collect or receive the insurance benefits” under Article 67 of the former Medical Insurance Act, so it cannot be said that the two-year extinctive prescription of the right to collect unjust enrichment of this case cannot be applied, and there is no particular provision on the nature of the right to collect unjust enrichment of this case or the prescription of the right to collect unjust enrichment of this case. In light of the amended Medical Insurance Act of January 7, 1994, it is reasonable to view that the extinctive prescription of this case is applied to the general claim of this case.

Meanwhile, according to Article 67 (2) of the former Medical Insurance Act, the demand for the payment of unjust enrichment, such as unfair medical expenses, related to medical insurance, shall be a ground for suspending the extinctive prescription of the right to collect unjust enrichment (However, the above recognition is limited to the first demand to the time when the Defendant did not pay the money by the designated time limit after the payment notice of unjust enrichment was issued, and the subsequent demand shall be limited only to the peremptory demand under the Civil Act with no effect of interrupting prescription (see Supreme Court Decision 97Nu119, Jul. 13, 199, etc.). It also constitutes a ground for suspending the extinctive prescription of the seizure by the disposition on default. According to the above facts, even if the Defendant’s first demand for the collection of unjust enrichment of this case was suspended by not later than April 1987, the extinctive prescription period for the Plaintiff’s collection of unjust enrichment of this case, which was 10 years after the expiration of ten years prior to the expiration of the period, and the Defendant’s collection of the above amount in arrears was not more than 10 days after the completion of the statute of prescription.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition on the ground that the plaintiff's appeal is without merit.

Judges Park Jong-hun (Presiding Judge)