209Guhap816 Revocation of Disposition to refund medical care benefit costs

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National Health Insurance Corporation

May 28, 2009

June 25, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s disposition of recovering medical care benefit costs against the Plaintiff on February 4, 2009 is revoked.

1. Details of the disposition;

A. The plaintiff obtained a herb doctor's license and owned by the non-party who is in the non-party's OOO-dong OO-dong O-dong non-party as a non-party who is qualified to establish a herb doctor's license.

The treatment of the patient is provided by the plaintiff, the actual management of the patient is the non-party, and the plaintiff agrees to receive benefits from the non-party in return for the treatment, and on September 18, 2002, the plaintiff's name is provided in the above place.

'○○○○ Council member' was established.

B. From around that time to April 24, 2006, the Plaintiff received a remuneration of KRW 5 million per month from the Nonparty and provided medical treatment at a certain point. In this regard, the Plaintiff received medical care benefit under the National Health Insurance Act in the name of the Plaintiff.

C. Accordingly, on February 4, 2009, the defendant was found to have been employed by a person who is not able to establish a medical care institution as above and provided medical treatment to the plaintiff, and received medical care benefit costs by unfairly claiming and claiming medical care benefit costs. Accordingly, the defendant issued the disposition of this case where it decided to recover medical care benefit costs equivalent to KRW 411, 531, and 660 pursuant to Article 52(1) of the National Health Insurance Act.

[Ground for Recognition: Facts without dispute, entry of Gap evidence 1-2, purport of the whole pleadings]

2. Determination on the legality of the disposition

A. The plaintiff's assertion

(1) mistake of facts

Although the Plaintiff’s above medical treatment is in violation of the Medical Service Act, the Plaintiff’s medical treatment itself was normally conducted by the Plaintiff, who is subject to criminal punishment or administrative disposition under the Medical Service Act, apart from the fact that the Plaintiff’s medical treatment itself was conducted by an oriental medical doctor, and thus, a claim for medical expenses therefrom does not constitute a case where the Plaintiff received insurance benefits costs by fraud or other improper means under Article 52(1) of the former National Health Insurance Act (amended by Act No. 8034, Oct. 4, 2006; hereinafter “National Health Insurance Act”). Even if the Plaintiff received insurance benefits costs by improper means, the amount to be recovered should be limited to the remainder of the profit obtained by deducting the actual expenses incurred in the medical treatment, such as oriental medicine, given to the patients.

(2) Degradation and abuse of discretionary power

Article 52(1) of the National Health Insurance Act provides that all or part of the amount equivalent to the costs of health care benefit shall be collected at the time of disposing of unjust enrichment collection. In light of the fact that the Plaintiff’s claim is merely a fraudulent claim, not a false claim, the instant disposition ordering the recovery of all or part of the costs of health care benefit paid is an error of deviation and abuse of discretion.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

(1) Determination of misunderstanding of facts

Article 52(1) of the National Health Insurance Act does not require a medical care institution to submit false data or actively conceal facts in order to receive medical care benefit costs by deceit or other improper means, but includes all the acts of claiming and receiving medical care benefit costs under relevant statutes (see Supreme Court Decision 2008Du3975, Jul. 10, 2008).

Article 40(1)1 of the National Health Insurance Act limits a medical institution, one of the medical care institutions, to a medical institution established under the Medical Service Act. Articles 30(2) and 53(1)2 of the former Medical Service Act (wholly amended by Act No. 8366, Apr. 11, 2007; hereinafter “Medical Service Act”) limit the qualification of a medical institution founder to a medical institution’s intent, etc. In addition, the provision of the Medical Service Act limits the qualification of a person who is not authorized to establish a medical institution to a certain extent. The purpose of the provision is to strictly limit the qualification of a medical institution to medical care institution to a medical institution established under the Medical Service Act, such as a corporation or institution having a public nature, and to promote the health of the people by prohibiting the establishment of a medical institution. In light of the above, the Plaintiff’s act of claiming for medical care benefit benefits against the State’s adequate medical care benefit under the National Health Insurance Act, such as this case, cannot be viewed as an unlawful act of the Plaintiff under the National Health Insurance Act.

In addition, the instant disposition is not a disposition to recover the benefits accrued unfairly to the Plaintiff, but a disposition to reinstate the costs of medical care benefits under the related laws and regulations, so it constitutes an unfair amount which is subject to the Plaintiff’s restitution of the costs of medical care benefits that the Plaintiff received unfairly, and it is not necessary to consider whether the Plaintiff actually accrued the benefits.

(2) Determination on the assertion of deviation or abuse of discretion

Article 52(1) of the National Health Insurance Act provides that all or part of the amount shall be collected in such cases. However, the purport of the disposition to recover medical care benefit costs is to reinstate unfairly paid medical care benefit costs, barring any special circumstance, it is the principle to collect the full amount in principle, barring any special circumstance. The need to strictly control and manage medical care benefit costs in order to promote the soundness of the finances of national health insurance and ensure operational transparency, the improper claim in this case was made over three years and seven months, and the amount of the medical care benefit cost unfairly paid to the Plaintiff is considerably high. In light of the various circumstances, even if considering the various circumstances that the Plaintiff is the main owner, the instant disposition in this case cannot be deemed as a deviation from or abuse of discretionary power due to excessively harsh to the Plaintiff.

3. Conclusion

Thus, the plaintiff's claim is dismissed for lack of reason.

Judges of the presiding judge 000

Judges ○○○ -

Judges OOO -

Related Acts and subordinate statutes

◆ 구 국민건강보험법 ( 2006 . 10 . 4 . 법률 제8034호로 개정되기 전의 것 )

Article 40 (Medical Care Institutions)

(1) Medical care benefits (excluding nursing and delivery) shall be provided by the following medical care institutions. In such cases, the Minister of Health and Welfare shall provide the following medical care

Medical institutions, etc. deemed inappropriate as medical care institutions for public interest or national policy under the Presidential Decree.

medical institutions, etc. may be excluded from medical care institutions.

1. Medical institutions established under the Medical Service Act;

2. Pharmaciess registered under the Pharmaceutical Affairs Act;

3. The Korea Orphan Drug Center established under Article 72-12 of the Pharmaceutical Affairs Act; and

4. Public health centers and their branches under the Regional Public Health Act;

5. Public health clinics established under the Act on Special Measures for Public Health and Medical Services in Agricultural and Fishing Villages;

Article 52 (Collection of Unjust Enrichment)

(1) The Corporation shall pay insurance benefits to a person who has received or a medical care institution that has received insurance benefit costs by deceit or other improper means.

amount equivalent to such benefits or expenses for benefits shall be fully or partially collected.

◆ 구 의료법 ( 2007 . 4 . 11 . 법률 제8366호로 전부개정되기 전의 것 )

Article 30 (Establishment)

(2) No person other than those falling under any of the following subparagraphs may establish a medical institution: Provided, That the medical person under subparagraph 1 may establish only one medical institution, and a doctor may establish a general hospital, hospital, convalescent hospital or clinic; a dentist may establish a dental hospital or dental clinic; a herb doctor may establish a herb hospital, convalescent hospital or herb clinic; and a midwife may establish a midwifery clinic:

1. A doctor, a dentist, a herb doctor, or a midwife;

2. The State or local governments;

3. A corporation established for the purpose of rendering medical services (hereinafter referred to as "medical corporation");

4. Nonprofit corporations established under the Civil Act or special Acts;

5. Government-invested institutions under the Framework Act on the Management of Government-Invested Institutions, local public corporations or Korean reports under the Local Public Enterprises Act;

The Korea Veterans Welfare and Healthcare Corporation under the Korea Veterans Welfare and Healthcare Corporation Act.

Article 53 (Suspension, etc. of Qualification)

(1) Where a medical person falls under any of the following subparagraphs, the Minister of Health and Welfare shall suspend his/her license qualification for up to one year:

(2) If it is required to determine the medical technology, the determination shall be made after hearing the opinion of the expert concerned.

set forth in subsection (1).

2. When he is employed by a person who is not entitled to establish a medical institution to perform his medical practice; and