2013Na6614 Medical Expenses

○ ○ Private Teaching Institutes

Representative ○○○○

Law Firm ○○, Counsel for the defendant-appellant

Attorney OOO

National Health Insurance Corporation

Representative ○○○○

Attorney ○-○, et al.

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

Seoul Western District Court Decision 2008Gahap1231 Decided November 29, 2012

August 28, 2013

October 2, 2013

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the order of additional payment shall be revoked.

The defendant shall pay to the plaintiff 943, 880, 450 won with 5% interest per annum from March 17, 2009 to October 2, 2013, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion of money under paragraph (1) above may be provisionally executed.

1. Purport of claim

From January 1, 2002 to the Plaintiff 1, 259, 501, 590 won and 4,291, and 910 won among them:

32, 09, 400 won from January 1, 2003, 208, 206, 980 won from January 1, 2004:

84, 612, 230 won from January 1, 2005, 375, 972, 590 won from January 1, 2006:

135, 617, 590 won from January 1, 2007, 235, 199, and 440 won from January 1, 2008:

For 183, 501, 450 won, 5% per annum from September 1, 2008 to the service date of a copy of each complaint of this case.

shall pay 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff who is ordered to pay additional payments below

A. The defendant shall revoke the plaintiff 943, 880, 450 won and the purport and ground of the claim of this case.

Payment of 20% interest per annum from the day after the copy of the application for change is served to the day of full payment.

(n)

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff asserted that the medical care benefits reduced due to the Defendant’s invalid restitution disposition would amount to KRW 1,259,501,590, and sought restitution of unjust enrichment in relation to the above amount. Accordingly, the Defendant asserted that the Plaintiff’s claim for restitution of unjust enrichment was extinguished by offset against the Defendant’s damage claim against the Plaintiff due to the tort.

The court of first instance accepted only part of the Plaintiff’s claim for restitution of unjust enrichment (the portion equivalent to KRW 272,157,010 out of the above policyholder’s share of KRW 272,157,01) on the premise that the Defendant is obligated to return to the Plaintiff part of the Plaintiff’s claim amount of KRW 1,216,037,460 out of the Plaintiff’s claim amount, under the premise that the Defendant is obligated to return the Plaintiff’s automatic claim amount of KRW 943,880,450, out of the offset claim with automatic claim.

In regard to this, only the plaintiff appealed against some of the part against the plaintiff in the judgment of the court of first instance (the part against the defendant's defense of set-off as to the drug cost of KRW 943,880,450 borne by the defendant). As such, the actual subject of the judgment of this court is limited to the existence of the defendant's damage claim against the plaintiff and its amount equivalent to KRW 943,880,450 for the medicine cost borne by the defendant.

2. Determination as to the basic facts and the cause of the claim

This court's explanation on each of the above parts is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, it is citing it in accordance with the main sentence of Article 420 of the Civil Procedure Act

3. Determination on the defendant's defense

(a) Extinctive prescription defense;

The defendant asserts to the effect that the plaintiff's above claim against the defendant is not a claim for return of unjust enrichment under the civil law, but a claim for medical expenses, which is not a claim for return of unjust enrichment, and if it is not exercised for three years, the period of prescription expires.

However, as seen above, the Plaintiff’s claim does not refer to “the right to receive insurance benefit costs”, but the Defendant’s disposition of deducting and collecting medicine costs received from the Review and Assessment Service under Article 52 of the Act, based on which the Defendant received a notice of reduction from the Review and Assessment Service, based on Article 52 of the Act, claiming the return of unjust enrichment equivalent to the portion deducted and collected on the ground that the said disposition is void as a matter of course

The amount for which the plaintiff sought the return of the money to the defendant in this case from November 2001 to 2008.

8. From January 25, 2008, the extinctive prescription of 10 years has not yet expired since the Plaintiff filed the instant lawsuit. The Defendant’s defense is without merit.

B. Offsets (1) Defendant's assertion

The issuance of a medical prescription against the medical care benefit standard, which is a mandatory provision by the Plaintiff, is unlawful. Accordingly, the Defendant suffered damages from the payment of unnecessary medicine expenses to a pharmacy, etc. in accordance with the above medical prescription amounting to KRW 943,880,450. Therefore, the Plaintiff’s damage liability equivalent to the above amount arising from the tort against the Plaintiff as an automatic claim shall be offset against the amount equal to the above obligation against the Plaintiff. (2) The judgment is made.

(A) Whether a prescription outside the medical care benefit standard is unlawful

Therefore, inasmuch as a medical care institution’s prescription out of the medical care benefit standard cannot be included in the medical care benefit amount, either in any case, or in any other case, if it issues a prescription using an external prescription outside of the medical care benefit standard as the subject of the medical care benefit amount, even if the prescription is intended to fulfill the best medical care obligation for the patient, and it cannot be deemed an unlawful act against the subscriber, etc., it constitutes an unlawful act under Article 750 of the Civil Act (see Supreme Court Decision 2009Da78214, Mar. 28, 2013).

As to the instant case, comprehensively taking account of the aforementioned evidence and evidence as well as evidence Nos. 6-2 and 3, the purport of the entire pleadings, the Plaintiff may recognize the fact that the Plaintiff issued an out-of-the-counter prescription, which goes beyond the medical care benefit standard, to the patients who were within the hospital from November 2001 to August 2008. Although the Plaintiff’s prescription aims to fulfill the best medical care duty for the patients, it is reasonable to view that the Plaintiff’s relationship with the Defendant, who is the insurer, constitutes an unlawful act under Article 750 of the Civil Act, as it violates the medical care benefit standard, and constitutes an act committed intentionally or negligently against the Plaintiff at the time of issuance of the above out-of-the-counter prescription.

1) Furthermore, from November 2001 to August 2008, whether the Plaintiff suffered damage to the Defendant due to an illegal act that issued the medical prescription by taking the external prescription outside of the medical care benefit standard as the subject of medical care benefits.

The claim for damages caused by a tort is established when the actual damage occurred, and whether the actual damage occurred should be determined objectively and reasonably in light of social norms (see Supreme Court Decision 2000Da53038 delivered on April 8, 2003).

Pursuant to the medical prescription made by a pharmacy to its subscribers, etc., as the act of having a prescription outside of the medical care benefits standards and having a medical institution treat it as the subject of the medical care benefits and issuing a prescription.

If the Defendant paid the amount of the medical care benefit cost to the pharmacy by claiming an examination of the relevant medical care benefit cost, such as preparation fees and medicine expenses, after preparing and delivering the medicine, it can be deemed that the medical care benefit cost equivalent to the medicine cost was paid without any legal cause, and the pharmacy acquired the benefit of the medical care benefit cost equivalent to the medicine cost in relation to the Defendant.

Meanwhile, in a case where a pharmacy gains profits from another person’s property or labor without any legal cause and thereby causes damage to another person, the acquisition of such money is presumed to exist, regardless of whether the person who acquired such profits consumed (see Supreme Court Decision 2007Da20440, 20457, May 28, 2009). However, even if a pharmacy prepares and delivers medicine to the insured (patient) under the above prescription, it may be deemed as beneficial treatment for the insured (patient) as a result, and this may be deemed as unjust enrichment for the amount equivalent to the expenses paid to the Defendant. In such a case, a pharmacy cannot be concluded to have no profit since it acquires the right to claim the return of unjust enrichment against the insured (patient). Accordingly, as long as the pharmacy received the amount equivalent to the expenses paid by the Defendant’s medicine from the Defendant, it is reasonable to deem that the pharmacy still remains in the case where there is no Defendant’s assertion and proof after the presumption.

Ultimately, the Defendant has a claim for return of unjust enrichment under the Civil Act with respect to the amount equivalent to the Defendant’s medicine expenses paid to the pharmacy. As long as the Defendant holds a claim for return of unjust enrichment under the Civil Act against the pharmacy, barring any other special circumstance, it cannot be said that the Plaintiff’s issuance of the Plaintiff’s prescription does not cause a practical damage

In particular, in the instant case where it is difficult for the Defendant to find out that it is difficult or impossible to recover unjust enrichment claim equivalent to the medicine cost paid by the Defendant against the pharmacy, it is difficult to deem that the Plaintiff suffered damages due to the Plaintiff’s unlawful act (i.e.,,, unless the pharmacy is closed down, the Defendant appears to be able to easily recover most of the medical care benefit costs paid by the Defendant by offsetting the claim for return of unjust enrichment against the pharmacy against the Defendant for other medicine costs). Furthermore, the unjust enrichment system requires that the ownership of property should be ultimately determined in accordance with the principle of justice and equity, and therefore, the fair resolution of the instant dispute surrounding the medical care benefit. Even after the implementation of the medicine medicine, the Defendant still received medical care benefit cost equivalent to the medicine cost paid by the pharmacy pursuant to Article 52(1) of the Act from the medical institution that issued the prescription, where the Defendant is notified that the issuance of prescription violates the medical care benefit cost standard, such as the transfer of the medicine sector. However, the Defendant’s collection disposition against the Defendant’s pharmaceutical expense by filing a suit against the collection disposition against the Defendant’s pharmaceutical expense collection.

8. The sentence was rendered. Accordingly, the legal relationship surrounding the medical care benefit cost between the Plaintiff, etc., including the Plaintiff, who is a medical institution, arising from the issuance of a prescription outside of the medical care benefit standard, cannot be resolved by the legal relationship under public law pursuant to Article 52(1) of the Act, and the legal relationship surrounding the medical care benefit cost becomes inevitable to be resolved by the civil legal relationship under the Civil Act, etc.

In this case, aside from the procedural illegality of issuing a prescription with a doctor, it cannot be readily concluded that it is illegal in relation to the insured (patient). In this case, it is determined that the insured (patient) who received the benefits from the medicine prepared under the prescription is in accord with the definition and the principle of equity to bear the expenses. This result is not likely to cause considerable confusion within the medical insurance system. However, as seen earlier, even though it is not the way to resolve it under the public law, it is caused by the error in legislation or operation of the system at the part of the public authority, including the Defendant, including the Defendant. Therefore, it is difficult to recognize its legitimacy by means of administrative convenience resolution to unilaterally transfer the medical system to the Plaintiff. Accordingly, the expenses incurred by issuing the Plaintiff’s illegal extinctive prescription should be borne in sequence by the pharmacist and the patient who received the benefits therefrom, and thereafter, the determination is reasonable by viewing that the payment should be made in accordance with the compensation system for damages arising from nonperformance or tort between the Plaintiff and the patient.

3) As long as there is no damage to the Defendant as such, the set-off defense based on the premise that the Defendant’s claim for damages arising from the tort exists is without merit, without any further review. (c) Whether the profit and loss offset is against (c)

Even if the Defendant holds a claim for return of unjust enrichment under the Civil Act against a pharmacy as above, the Plaintiff asserts that the claim for return of unjust enrichment against the Defendant’s pharmacy should be the object of offsetting profit and loss, in a case where it is deemed that the damage equivalent to the Defendant’s medicine cost was inflicted on the Defendant due to the Plaintiff’s issuing act

On the other hand, the plaintiff's claim for return of unjust enrichment equivalent to the expenses paid by the defendant against the pharmacy by issuing the medical care benefit guidelines in violation of the medical care benefit guidelines in proximate causal relation with the damages suffered by the defendant due to the plaintiff's tort as above. Thus, in calculating the amount of compensation for damages, the plaintiff's claim for return of unjust enrichment equivalent to the expenses paid by the defendant against the pharmacy is reasonable. Thus, in calculating the amount of compensation for damages, the facts that the expenses borne by the defendant due to the above illegal act committed by the defendant are equivalent to 943,80,450, the above amount of damages suffered by the defendant. Meanwhile, the profits earned by the defendant from the above illegal act committed by the plaintiff are KRW 943,80,450, the claim for return of unjust enrichment against the pharmacy, which is the claim amount for return of unjust enrichment against the plaintiff's pharmacy. Ultimately, if

Even if the Defendant’s damage is not entirely extinguished due to the offsetting of profits and losses, in cases where a medical institution prescribed the medical care benefit standards in excess of the medical care benefit standards and issued a prescription outside the medical care benefit, thereby compensating the National Health Insurance Corporation for the damages, the scope of compensation for such damages may be limited in light of the ideology of the equitable compensation system, taking into account all the circumstances such as the background and motive leading up to the act by the medical institution, objective circumstances involved in the occurrence of damages by the National Health Insurance Corporation, and existence of profits suffered by the medical institution (see Supreme Court Decision 2009Da78214, Mar. 28, 2013).

In light of all the circumstances acknowledged by comprehensively taking account of the overall purport of the arguments as seen earlier, requiring the Plaintiff to bear all the damages incurred to the Defendant due to the issuance of the Plaintiff’s original prescription seems to be inappropriate in light of the ideology of the damage compensation system, which is fair in sharing damages. Therefore, it is reasonable to limit the Plaintiff’s damage liability ratio to 50%. Accordingly, it is reasonable to limit the Plaintiff’s damage liability ratio to 471,940,225 won ( = KRW 943,880,450, 00 x 00 x 5) recognized as damages suffered by the Defendant after limiting the Plaintiff’s liability. If the amount of the claim for return of unjust enrichment against the pharmacy, which is the benefit accrued to the Defendant’s above illegal act, is deducted from the amount of the claim for return of unjust enrichment that the Defendant gains from the Plaintiff’s above illegal act, the amount is less than 943,880,450 won, even if that amount is less than 943,000 won,000

4. Conclusion

Therefore, the defendant shall pay to the plaintiff the above 1,216,037, 460 won ( = 272,157,010 won quoted in the first instance trial + 943,80,450 won cited in the additional appellate trial) and 272,157,010 won, which are cited in the first instance trial, from February 13, 2008 following the delivery date of the copy of the complaint of this case to the defendant from February 13, 2008 to November 29, 2012, 5% per annum as stipulated in the Civil Act until November 20, 201, and 20% per annum as to the existence or absence of the obligation to pay damages for delay from the next day to the date of complete payment, to the date of 20% per annum as stipulated in the above 9.4% per annum as to the plaintiff's claim for damages for delay from the next day of this case to the date of 20% per annum as stipulated in the Civil Act.

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since part of the part against the plaintiff in the judgment of the court of first instance which differs from this conclusion is unfair, the plaintiff's appeal shall be accepted and the part against the defendant shall be revoked, and the defendant shall be ordered to pay the above amount additionally recognized in the trial. The plaintiff's remaining appeal shall be dismissed as without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Class of judge line

Warrant of Judge