Plaintiff

National Health Insurance Corporation (Attorney Kim Han-soo, Counsel for defendant-appellant)

February 23, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of recovering medical care benefit costs of KRW 30,331,640, which the Plaintiff rendered on February 25, 2016, shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a person who establishes and operates a △△ Hospital in Gyeyang-ro, Incheon, Gyeyang-ro (hereinafter “instant hospital”) from August 17, 2011.

B. From October 25, 2011, the Plaintiff autonomously operated the restaurant of the instant hospital. From January 201, 2012 to 50 or more persons were allowed to use the restaurant, the Plaintiff filed a report on the establishment of meal service facilities with the head of Gyeyang-gu Incheon Metropolitan City Office on July 27, 2012 pursuant to Article 88(1) of the former Food Sanitation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same).

C. On February 25, 2016, the Defendant issued a disposition to recover KRW 30,331,640 from the food care benefit amount paid to the Plaintiff under Article 57 of the National Health Insurance Act (hereinafter “instant disposition”) on the ground that the instant hospital filed a claim for the medical care benefit cost without reporting the meal service facility from January 1, 2012 to July 26, 2012 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 2 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The amount of additional dues directly paid to an in-patient directly operated a restaurant is paid when the relevant medical care institution directly operates the restaurant by providing more than one dietitian belonging to the relevant medical care institution, including where the dietitians who work for the relevant medical care institution are full-time and human resources needed for the meals of inpatientss belong to the relevant medical care institution. The Plaintiff, after establishing the instant hospital, directly operated the restaurant from November 201 to the date of filing a report on the instant meal service facilities, and met the requirements for the payment of additional dues under the Food Sanitation Act. However, the Defendant issued the instant disposition on the ground that it did not meet the requirements for the payment of additional dues on the ground that the instant disposition was not deemed unlawful

2) Even if the report of meal service facilities constitutes the requirement for the payment of additional charges directly in charge, the Plaintiff provided meals under the conditions that meet the human resources and facility standards under the Food Sanitation Act, and half of the additional charges, even if the patient pays half of the additional charges, it is unreasonable for the Defendant to recover the total amount thereof, and thus, the instant disposition was abused

B. Determination

1) Whether there is a ground for disposition

A) In cases where the cost of insurance benefits is received by deceit or other fraudulent means under Article 57(1) of the National Health Insurance Act, it does not require a medical care institution to submit false data or actively conceal facts in order to receive the cost of medical care benefits, but includes all the act of claiming and receiving them even though they are costs not payable as medical care benefits costs under relevant Acts and subordinate statutes (see Supreme Court Decision 2008Du3975, Jul. 10, 2008).

B) Article 41(2) of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016) provides that the criteria for the method, procedure, scope, upper limit, etc. of health care benefit shall be prescribed by Ordinance of the Ministry of Health and Welfare. Article 5(1) of the Regulations on the Medical Care Benefits for National Health Insurance provides that a health care institution shall provide health care benefit to subscribers, etc. according to the criteria and method for the medical care benefit specified in attached Table 1. [Attachment 1] subparagraph 6(c) provides that meals to inpatients shall be provided in a sanitary manner in compliance with the standards prescribed by the Medical Acts and subordinate statutes and the Food Sanitation Act. The list of health care benefit and the points of relative value (amended by Act No. 13985, Feb. 3, 2016; hereinafter the same shall apply) of the Enforcement Decree of the Food Health Insurance Act provides that a person who fails to report to a large number of patients on the installation of meal service facilities, such as the Medical Service Act and the Food Sanitation Act provides meals to the Governor.

The following circumstances revealed from the above provisions, namely, that the National Health Insurance Act and other relevant Acts and subordinate statutes stipulate that medical care benefit costs shall be paid in cases where a medical care institution provides meals to a patient who meets the standards for human resources and facilities under the Food Sanitation Act. The purpose of the Food Sanitation Act is to enable a medical care institution to provide a sanitary level of meals suitable for the treatment of hospitalized patients. The Food Sanitation Act provides that a report must be filed with the competent administrative agency in order to establish and operate a meal service facility in compliance with various standards for the meal service facilities is to prevent sanitary risks and harm to food sanitation provided in the meal service facilities and to manage and supervise the meal service facilities. In light of the fact that the legislative purpose of the Food Sanitation Act, which intends to secure the sanitation of the meal service facilities without reporting to the Plaintiff, is unlikely to be achieved because it is difficult for the competent administrative agency to manage and supervise the meal service facilities without reporting to the Plaintiff, it is reasonable to deem that the report on the establishment and operation of the meal service facilities falls under the standards prescribed in Article 5(1) and [Attachment 1]6(c) of the Food Sanitation Act (see Seoul High Court Decision 2015Nu6.

However, even though the Plaintiff provided meals to at least 50 patients once from January 2012, when directly operating a restaurant within the instant hospital, it was found as seen earlier that the Plaintiff reported the establishment of a meal service facility to the head of Gyeyang-gu Incheon Metropolitan City, which was later on July 27, 2012, and thereafter, the Plaintiff received from January 1, 2012 to July 26, 2012, constitutes a case where the medical care benefit cost for all in-patients who were paid from January 1, 2012 to July 26, 2012 constitutes a case where the Plaintiff received the insurance benefit cost by fraudulent or other unjust means under Article 57(1) of the National Health Insurance Act.

C) The Plaintiff asserts that a report on meal service facilities and a sanitary provision of meals is not related to one another. As seen earlier, Article 2 subparag. 12 of the former Food Sanitation Act provides that meal service facilities shall be provided continuously to many and specified persons at least once without seeking profits, and Article 2 of the Enforcement Decree of the same Act provides that a person who installs and operates meal service facilities shall thoroughly manage food sanitation to ensure that patients do not suffer from food poisoning in a sanitary manner, such as the maintenance and management of meal service facilities, and that a person who installs and operates meal service facilities shall keep one minute per person of food prepared and provided for at least 144 hours each, as prescribed by Ordinance of the Ministry of Health and Welfare, and that a dietitian may not interfere with his/her duties if he/she has a dietitian, and that it is necessary to comply with the requirements for the sanitary management of meal service facilities, such as the provision of food service facilities, if he/she requests a large number of persons engaged in sanitary management of meal facilities, and that such report and provision of food service facilities shall not be specifically related to other matters prescribed by Ordinance of the Prime Minister of the Food Sanitation Act.

2) Whether the discretion is deviates or abused or not

A) Article 57(1) of the National Health Insurance Act provides that the Defendant shall collect all or part of the amount equivalent to the expenses for insurance benefits from a medical care institution that received insurance benefit costs by deceit or other unjust means. Paragraph (5) of the same Article provides that where a medical care institution received medical care benefit costs by deceit or other unjust means from a policyholder or his/her dependent, the Defendant shall collect such benefit from the relevant medical care institution and pay it without delay to the policyholder or his/her dependent. Considering the language and text of the foregoing provision and the purport of the disposition for restitution of unjust enrichment therefrom appears to be to restore the case where the expenses for benefits were paid, it is reasonable to deem the disposition for restitution of unjust enrichment as a indecent act. Therefore, the instant disposition, which is a binding act, has no possibility for the Defendant’s discretion to intervene, and it is without merit (see Seoul High Court Decision 2015Nu62530, Feb. 2, 2

B) Even if the collection of unjust enrichment pursuant to Article 57(1) of the National Health Insurance Act, as alleged by the Plaintiff, constitutes discretionary act, it is reasonable to collect the full amount of unjust enrichment, barring any special circumstances, inasmuch as the purport of collecting unjust enrichment is to restore the cost of health care benefit illegally paid to the original state. As seen earlier, it is difficult to view that the Defendant, as alleged by the Plaintiff, committed a disposition to recover the total amount of the cost of health care benefit that the patient was provided with meals at the meal service facilities of the instant medical care institution, without recovering the total amount of the cost of health care benefit that was provided by the patient, even though the patient’s food to whom the meal was provided at the meal service facilities of the instant medical care institution constituted “expenses for health care benefits received by speed, flood, or any other wrongful means,” and there is a great need to strictly control and manage the cost of health care benefit

3) Sub-decisions

As a result, the instant disposition is lawful since it is recognized as the grounds for the disposition and there is no violation of law that deviates from or abused discretionary power.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Yu Jin-dong (Presiding Judge)