2015du3996 Demanding revocation of disposition to collect medical care benefit costs.

Plaintiff

Law Firm (Bae), Kim & Lee LLC, Counsel for defendant-appellant)

[Defendant-Appellee] Plaintiff 1 and 1 others

National Health Insurance Corporation

Seoul High Court Decision 2014Nu60636 Decided February 17, 2015

d.6.4

The original judgment shall be reversed, and the case shall be remanded to the Seoul High Court.

The grounds for appeal are determined.

1. On the ground of appeal No. 1, the court below held that the hospital of this case was established in the order of non-medical person in the name of the plaintiff et al., and the plaintiff was aware of the fact that the non-medical person was the founder of the hospital of this case. Examining the reasoning of the judgment below in light of the records, the court below did not err by exceeding the bounds of free evaluation principle against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. As to the ground of appeal Nos. 2 and 3

A. According to the former Health Insurance Act (wholly amended by Act No. 11141, Dec. 31, 201; hereinafter “former Health Insurance Act”), a health care institution provides health care benefit to policyholders, etc. and claims the payment of health care benefit to the National Health Insurance Corporation (hereinafter “Corporation”). The Corporation shall pay the cost of health care benefit to a health care institution (Articles 39 and 43). The Corporation may collect all or part of the amount equivalent to the cost of health care benefit from a health care institution that received insurance benefit by fraud or other improper means (Article 52(1)); if the payment is not made, it can be collected in the same manner as national tax delinquency disposition (Article 70(1) and (3)); according to Article 40(1)1 of the former Health Insurance Act, health care benefit is provided by a medical institution established pursuant to the Medical Service Act; Article 40(1)6 of the former Medical Service Act; Article 36(1)6 of the former Medical Service Act’s qualification for medical care benefit.

In light of the contents, stay, etc. of the above provisions, a medical institution established by a person who is not entitled to establish a medical institution cannot be a medical care institution under the National Health Insurance Act. However, even if such medical institution provides medical care benefits as a medical care institution and claims the expenses for such benefits, it shall be deemed that the medical care institution constitutes the other party to the disposition taken to collect unjust enrichment under Article 52(1) of the former National Health Insurance Act, and the claim for such medical care benefit amount constitutes “the deceased and other unjust methods.”

B. The lower court determined that the medical care benefit cost paid to the instant hospital established by non-medical personnel non-party constitutes an object of disposition of unjust enrichment collection. In so determining, the lower court did not err by misapprehending the legal doctrine on the collection of unjust enrichment under the former National Health Insurance Act.

3. As to the ground of appeal Nos. 4 and 5

A. Whether an administrative act constitutes a binding act or discretionary act ought to be determined individually by taking into account both the stay and form of the provision that serves as the basis for the pertinent disposition, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, and the individual nature and type of the pertinent act itself, etc. In light of the room for determining public interests based on the discretion of an administrative agency, the judicial review on discretionary act does not make this independent conclusion, and only examines whether the pertinent act is a deviation or abuse of discretionary power, and its determination criteria, such as the mistake of facts and the violation of the principle of proportionality and equality, etc. (see, e.g., Supreme Court Decision 2014Du3702, Oct. 4, 2018).

In a case where a disposition was rendered without weighing the substance and degree of the disadvantage that the other party to the disposition knew that the administrative agency has no discretion, despite having given a certain discretion to the administrative agency to determine the requirements and effects of the disposition, if the relevant administrative agency’s disposition was to be achieved without weighing the substance and degree of the disadvantage that the other party to the disposition took place, this is a non-exercise of discretion, and itself constitutes an unlawful ground for revocation of the relevant disposition due to deviation or abuse of discretion (see, e.g., Supreme Court Decisions 2014Du45956, Aug. 29, 2016; 2017Du38874, Jul. 11, 2019).

The principle of proportionality is the basic principle of the Constitution that naturally derived from the principle of the rule of law, and is applied to all state works (see Constitutional Court Order 92Hun-Ga8, Dec. 24, 1992). The means to achieve administrative purposes should be effective and appropriate in the achievement of that purpose, and should bring about a minimum infringement as much as possible, and should not be able to realize the public interest in which the infringement resulting from the introduction of the means is intended (see Supreme Court Decision 96Nu10096, Sept. 26, 1997). In particular, in the case of a disciplinary measure taken on the ground of the other party’s violation of his/her duty, the relation should be acknowledged as a whole in light of the substance of the breach of duty and the disciplinary measure, even if it is not strictly between the imposition of the duty and the determination of the duty, and in cases where the violation of the duty is obviously invalidated by social norms, it should be deemed that the discretionary power is unlawful, such as abuse and abuse of the discretionary authority (see Supreme Court Decision 2098Da298,298,298.

B. Article 52(1) of the former National Health Insurance Act provides that “The Corporation shall collect all or part of the amount equivalent to benefits or expenses for 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 improper means.” This provision explicitly provides that some of its language and text can be collected. The legislative purpose is to ensure soundness in the finance of health insurance and medical benefits through the maintenance of a desirable benefit system by preventing the medical care institution from claiming the payment of expenses for benefits by improper means (see Constitutional Court Order 2010Hun-Ba375, Jun. 30, 201). However, as a medical care institution may result in a failure to receive the payment of expenses for health care benefits already provided due to the collection of unjust enrichment, it is infinite.

Meanwhile, the term “the act of establishing a non-medical institution” prohibited under Article 30(2) of the former Medical Service Act means the act of leading the establishment of a non-medical person, including the recruitment and management of facilities and human resources of the medical institution, the establishment report, the implementation of medical business, the financing of necessary funds, and the reversion of operational performance (see Supreme Court Decision 2018Do10779, Nov. 29, 2018). In other words, the founder, who is a medical person, only provides his/her name to the founder, does not participate in the establishment and operation of the medical institution, and only receives remuneration for providing labor, and does not belong to profits and losses from the operation of the medical institution. Considering this point, the former Medical Service Act provides that the founder, who is the subject of the offense, shall be punished by imprisonment with prison labor for not more than five years, or by a fine not exceeding 20 million won, to the extent that he/she has been employed by the founder of the medical institution in violation of the former Medical Service Act.

C. Nevertheless, without examining the above circumstances, the lower court determined that each of the instant dispositions, which collected the full amount of expenses for medical care benefits from the account holder, did not violate the principle of proportionality or the principle of excessive prohibition. In so determining, the lower court erred by misapprehending the legal doctrine on the principle of proportionality, deviation from and abuse of discretionary power, etc., thereby adversely affecting the conclusion of the judgment. The Plaintiff’s appeal pointing this out is with merit.

4. Conclusion

Therefore, the original 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 Park Jung-hwa

Justices Kwon Soon-il

Justices Lee Ki-taik

Justices Kim Jong-soo