[1] In a case where an administrative agency took a disposition to the maximum extent that the grounds for mitigation are not considered at all or that it does not fall under the grounds for mitigation under the individual disposition guidelines even though there are grounds for discretionary mitigation under the statutes to the other party to the disposition, whether the discretionary authority was abused or deviates (affirmative)

[2] Whether all the act of claiming and paying medical care benefit costs by the medical care institution is included in the “cases where the insurer, the insured, and their dependents bear the costs of medical care benefits by fraud or other improper means” under Article 98(1)1 of the former National Health Insurance Act (affirmative)

[3] A person who becomes a standard for determining whether a medical care institution is unable to receive medical care benefit costs in relation to any medical treatment under Article 98(1)1 of the former National Health Insurance Act and other improper means

[4] In a case where the principal medical treatment constitutes “non-benefit subject to medical treatment” under Article 9(1) [Attachment 2] of the former Regulations on the Standards for Medical Care Benefits in National Health Insurance, whether the treatment, such as medical examination, examination, and treatment, conducted before and after the main medical treatment, constitutes also a non-benefit subject to medical treatment (affirmative), and whether the medical care institution may claim medical care benefit costs in relation to incidental medical treatment (negative)

[1] In a case where an administrative agency did not at all balance between public and private interests, or omitted matters that should be included in the assessment of benefits, or where there is no legitimacy and objectivity while balancing interests, the sanctions should be deemed to have been abused or abused by discretionary authority. In a case where there are grounds for discretionary mitigation stipulated in statutes to the other party to the sanctions, if an administrative agency did so without considering the grounds for mitigation even though it did not reduce the scope of mitigation, it cannot be readily concluded that the administrative agency exceeded and abused discretionary authority. However, in a case where an administrative agency did so by mistake that it did not fall under the grounds for mitigation or that it did not fall under the upper limit prescribed in the individual disposition criteria, it should be deemed that the administrative agency deviates from and abused discretionary authority by omitting the matters that should be included in the assessment of benefits, or that it did not fall under the grounds for mitigation.

[2] Article 98(1)1 of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016; hereinafter the same) does not require the medical care institution to submit false data or actively conceal facts in order to receive the medical care benefit cost, but includes all acts of claiming and receiving the medical care benefit cost, even though it is a cost that cannot be paid as the medical care benefit cost under the National Health Insurance Act and its subordinate regulations.

Therefore, in order to suspend business pursuant to Article 98(1)1 of the former National Health Insurance Act, an administrative agency is sufficient to prove the objective circumstance that the reason for disposition, namely, the medical treatment that a medical care institution claims for medical care benefit costs, constitutes a case in which the medical care institution is unable to receive medical care benefit costs according to the National Health Insurance Act and its subordinate regulations, and the circumstance that the relevant medical care institution did not use the “speed” is considered in the administrative agency’s disposal determination phase and the court’s review phase of deviation from and abuse of discretionary power. Therefore, the Plaintiff’s assertion of this favorable

[3] Article 98(1)1 of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016) refers to cases where a medical care institution, despite being aware of the fact that certain medical care costs cannot be paid as a medical care benefit under the National Health Insurance Act, the National Health Insurance Act and its subordinate regulations, in which it deceivings the Service, etc. by actively preparing and submitting a written request for medical care benefit or documents related to medical care records, etc. different from the actual ones, as if the medical care institution was aware of the fact that the medical care benefit amount could not be paid as a medical care benefit amount, and “other improper means” refers to cases where a medical care institution claims medical care benefit amount by negligence without knowing the fact that it cannot be paid as a medical care benefit amount in accordance with the National Health Insurance Act, the Decree and its subordinate regulations

Whether or not a medical care institution knew of the fact that it is not entitled to medical care benefit costs according to the National Health Insurance Act, the Decree and its subordinate regulations should not be determined on the basis of only the founder of the medical care institution. If the preparation, etc. of a medical care benefit claim or relevant documents, such as medical care benefit costs, is conducted by an agent or employee, it shall be determined on

[4] In cases where a principal medical treatment constitutes “non-benefit” under Article 9(1) [Attachment 2] of the former Rules on the Standards for Medical Care Benefits in National Health Insurance (amended by Act No. 13985, Feb. 3, 2016) upon delegation of Article 41(3) of the former National Health Insurance Act (amended by Ordinance of the Ministry of Health and Welfare No. 431, Aug. 4, 2016), medical treatment, such as medical examination, examination, treatment, etc. conducted before and after the main medical treatment constitutes non-benefit, and thus, it is not permissible for medical care institutions to claim medical care benefit costs in relation to incidental medical treatment.

[1] Article 27 of the Administrative Litigation Act / [2] Article 98 (1) 1 of the former National Health Insurance Act (Amended by Act No. 13985, Feb. 3, 2016); Article 70 (1) [Attachment 5] (1) and (4) of the former Enforcement Decree of the National Health Insurance Act (Amended by Presidential Decree No. 2743, Aug. 2, 2016); Article 26 of the Administrative Litigation Act / [3] Article 98 (1) 1 of the former National Health Insurance Act (Amended by Act No. 13985, Feb. 3, 2016); Article 70 (1) [Attachment ] [4] Article 70 (1) of the former Enforcement Decree of the National Health Insurance Act (Amended by Presidential Decree No. 27435, Aug. 2, 2016); Article 70 (4) of the former Enforcement Decree of the National Health Insurance Act / [4] Article 138 (1) of the former Rules of the National Health Insurance Act (Amended by Act

[1] Supreme Court Decision 2005Du3257 Decided September 15, 2005 (Gong2005Ha, 1634) / [2] Supreme Court Decision 2010Du8959 Decided September 30, 2010 (Gong2010Ha, 2012) Supreme Court en banc Decision 2010Du27639, 27646 Decided June 18, 2012 (Gong2012Ha, 1312) / [3] Supreme Court Decision 2016Du36079 Decided July 27, 2016 (Gong2016Ha, 1268) / [4] Supreme Court Decision 2008Du19345 decided October 11, 2012 (Gong2012Ha, 2012)

Plaintiff

The Minister of Health and Welfare (Court of Law, Attorney Choi Jong-chul et al., Counsel for defendant-appellant)

Seoul High Court Decision 2018Nu40432 decided August 28, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) The Plaintiff is a herb doctor who established and operated ○○○○○○ Medical Center (hereinafter “instant Council member”) in Seongbuk-gu, Sungnam-si.

(2) During the period from July 1, 2013 to December 31, 2013, the Plaintiff: (a) practically performed the “Non-Adverse Megical Megical Megical Megical Megical” or “Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical Megical

(3) On May 2, 2017, the Defendant issued a disposition to suspend the business of a medical care institution for 145 days pursuant to Article 98(1)1 of the former National Health Insurance Act (amended by Act No. 13985, Feb. 3, 2016; hereinafter the same shall apply) and Article 70(1) [Attachment Table 5] of the former Enforcement Decree of the National Health Insurance Act (amended by Presidential Decree No. 2743, Aug. 2, 2016; hereinafter the same shall apply) against the Plaintiff on the ground that the instant violation constitutes “a case where the Defendant has caused the Service to bear the costs of health care benefit by fraud or other improper means” (hereinafter “instant disposition”).

B. The Plaintiff does not dispute the fact that the instant violation constitutes grounds for disposition under Article 98(1)1 of the former National Health Insurance Act. The key issue of the instant case is whether the instant violation constitutes a case where the instant violation constitutes a case where the instant case where the use of “speed” or “other unfair methods” is used as a circumstance to be considered in the fixed amount of disposition in accordance with Article 70(1) [Attachment 5] of the former Enforcement Decree of the National Health Insurance Act.

2. Relevant provisions and legal principles

A. The general legal doctrine on punitive administrative disposition

(1) Generally, a punitive administrative disposition is a sanction that leads to the objective fact of violation of administrative laws and regulations in order to achieve administrative purposes. As such, it is not a real offender, but a person who is stipulated as a person in charge under the relevant laws and regulations. Barring special circumstances, such as where there are different provisions in the relevant Acts and subordinate statutes or where there are justifiable grounds for not causing a violation of duties to a violator, it may be imposed even if the violator has no intention or negligence (see, e.g., Supreme Court Decision 2014Du8773, May 11, 2017).

(2) In a case where an administrative agency’s determination of a disciplinary measure did not take into account the balancing between public and private interests, or omitted matters that should be included in the balancing of interests, or where there is a lack of legitimacy and objectivity despite the balancing of interests, the relevant disciplinary measure should be deemed to have been abused or abused. In a case where there is a ground for voluntary mitigation as prescribed by the statute to the other party, if an administrative agency took a disposition to the maximum extent prescribed in the individual disposition criteria without considering the relevant grounds for mitigation, it cannot be readily concluded that the administrative agency abused or abused discretion. However, in a case where an administrative agency took a disposition to the maximum extent prescribed in the individual disposition criteria because it did not consider the grounds for mitigation at all or misleads that it did not fall under the grounds for mitigation, it should be deemed that the administrative agency was exempt from or abused discretionary power because it did not mislead the fact that it should be included in the subject of consideration (see Supreme Court Decision 2005Du3257, Sept. 15, 2005).

(3) In general, according to the general principle of the allocation of burden of proof, an appeal litigation generally bears the burden of proving the existence of the grounds for disposition against the Defendant administrative agency that asserts the legality of the disposition, but special circumstances constituting deviation and abuse of discretionary power shall be proved by the Plaintiff (see Supreme Court Decision 87Nu861, Dec. 8, 1987, etc.).

(4) Unless special circumstances exist, such as where an administrative agency received a written confirmation from the other party to an investigation to a specific offense in the course of conducting an on-site investigation, the value of the written confirmation cannot be readily denied, barring special circumstances, such as that the written confirmation is forced against the will of the originator, or it is difficult to take the written confirmation as evidentiary materials for specific facts due to lack of details (see Supreme Court Decision 2015Du2864, Jul. 11, 2017, etc.).

(b) Details of the National Health Insurance Decree;

(1) Article 98(1)1 and (5) of the former National Health Insurance Act provides that the Minister of Health and Welfare may order a medical care institution to suspend its business for a fixed period not exceeding one year, and the Minister of Health and Welfare shall determine administrative disposition standards based on the type, degree, etc. of an offense subject to the suspension of business and other necessary matters by the medical care institution. Article 70(1) [Attachment 5] of the former Enforcement Decree of the National Health Insurance Act provides for the standards for calculating the period of suspension of business based on the average amount of unfair amount and unfair rate under Article 70(1) [Attachment 5] of the former Enforcement Decree of the National Health Insurance Act. Article 98(4) provides that “The Minister of Health and Welfare may reduce the period of suspension of business by up to one half of the amount of the penalty surcharge, taking into account the motive, purpose, degree, frequency, etc. of the offense.”

(2) Therefore, in a case where the method of claiming medical care benefit costs by a medical care institution falls under the “speed” method, disposal is not allowed by reducing the period of suspension of business prescribed in attached Table 5 [Attachment Table 5](1) of the former Enforcement Decree of the National Health Insurance Act, while in a case where the act falls under “other improper methods”, disposal may be conducted by reducing the period of suspension of business by up to 1/2 of the period of suspension of business prescribed in attached Table 5(1) in consideration

C. Legal principles on medical care benefit costs unfair claims by medical care institutions

(1) Article 98(1)1 of the former National Health Insurance Act provides that “Where an insurer, an insured person, or his/her dependent bears the costs of health care benefit by fraud or other improper means” does not require a health care institution to submit false data or actively conceal facts in order to receive the costs of health care benefit, but includes all acts of claiming the cost of health care benefit according to the National Health Insurance Act and its subordinate regulations (see, e.g., Supreme Court Decision 2010Du8959, Sept. 30, 2010).

Therefore, in order to suspend business pursuant to Article 98(1)1 of the former National Health Insurance Act, an administrative agency is sufficient to prove the objective circumstance that the reason for disposition, namely, the medical treatment that a medical care institution claims for medical care benefit costs, and received by the medical care institution, constitutes a case in which the medical care benefit cost is not payable according to the National Health Insurance Act and its subordinate regulations (see Supreme Court en banc Decision 2010Du27639, 27646, Jun. 18, 2012). The circumstance that the relevant medical care institution did not use the “speed” is considered in the administrative agency’s disposal determination phase and in the examination phase of the court’s deviation or abuse of discretionary power, and thus, the Plaintiff’s assertion should be attested due to favorable circumstances

(2) In this context, the term “afford medical care institution” refers to a medical care institution’s deceptions the Corporation, etc. by actively preparing and submitting a written claim for medical care benefit costs or relevant documents, such as medical care records, differently from the actual ones, as if the medical care institution knowingly performed medical care benefit costs despite its knowledge of the fact that it cannot be paid as medical care costs according to the National Health Insurance Act and its subordinate regulations. The term “other improper means” refers to a case where a medical care institution claims medical care benefits by negligence without knowing the fact that it cannot be paid as medical care costs in accordance with the National Health Insurance Act, its subordinate regulations, and does not use active methods, such as preparing relevant

Whether a medical care institution was aware of the fact that it is not entitled to medical care benefit costs according to the National Health Insurance Act, the Decree and its subordinate regulations should not be determined on the basis of only the founder of the medical care institution. In cases where the preparation, etc. of a medical care benefit claim or relevant documents, such as medical care benefit costs, was conducted by an agent or employee, it should be determined on the basis of all relevant persons, such as agent, etc. (see Supreme Court Decision 2016Du36079, Jul. 27

(3) In cases where the principal medical treatment falls under “non-benefit subject matter” under Article 9(1) [Attachment 2] of the Regulations on the Standards for Medical Care Benefits in National Health Insurance under the delegation of Article 41(3) of the former National Health Insurance Act, it is not permissible for a medical care institution to claim medical care benefit costs in relation to incidental medical treatment, as it also constitutes non-benefit subject matter, in addition to the principal medical treatment. (See Supreme Court Decision 2008Du19345 Decided October 11, 2012, etc.).

3. Determination as to the instant case

A. Examining the aforementioned facts, the reasoning of the judgment of the court of first instance, and the following circumstances revealed by the records, in light of these legal principles, since the Plaintiff falsely prepared the medical records as if the Plaintiff had not actually performed the medical records at Hanwon, it appears that the claim for medical care benefits was made with contents different from the actual ones. Therefore, the instant violation is highly likely to be deemed to be the case where the Plaintiff had the Plaintiff bear the costs of medical care benefits using the “influencies” to the Corporation.

(1) The Plaintiff, at one of the instant medical members, went through the instant non-medical treatment procedure: (i) in order to enhance the treatment effect of the first-aid treatment procedure by relaxing the patient’s satise and tension with the patient’s satise and tension; (ii) in order to increase the treatment effect of the first-aid treatment procedure by relaxing the patient’s satise and tension; (iii) in order to increase the treatment effect of the first-aid treatment procedure; (iv) in the first-aid treatment procedure, the first-aid treatment procedure (e.g., e., e., e. e., e., e. e., e., e., e., e., e., e., e., e., e., e., e., e., catch therapy-2 e., e., e., e., catchological treatment; (iv)

(2) Even according to the Plaintiff’s assertion, during the period from July 1, 2013 to December 31, 2013, the Plaintiff only provided a third-party medical act attached to the first-party medical act subject to non-benefit in the instant medical clinic and did not engage in the second-party medical act. Nevertheless, the Plaintiff recorded the first-party medical act in the medical records, while the second-party medical records were recorded in the electronic medical records, as if the second-party medical act was conducted. On October 23, 2015, the Plaintiff drafted a written confirmation (Evidence 6-1) stating that “The Plaintiff entered the Plaintiff himself/herself into the medical records with the particulars possible to claim medical care benefit costs in the electronic medical records,” and there are no extenuating circumstances to deem it difficult to believe the content thereof.

(3) If the electronic medical examination and treatment itself is falsely prepared by the Plaintiff, the entry of the employee of the Plaintiff into the contents of the claim for medical care benefit with respect to the third medical treatment act that was not actually performed by the employee of the Plaintiff is not due to the mere negligence or mistake, but due to the fact that the employee was engaged in the input work according to the electronic medical examination and treatment already prepared by

(4) Even if the above Plaintiff’s assertion is believed, the third medical act is deemed to have been conducted as incidental to the first medical act subject to non-benefit. As such, the third medical act constitutes a case where it is not allowed to claim medical care benefit costs as it constitutes non-benefit.

However, the Plaintiff asserts that the act of providing the third medical care benefits was conducted in parallel with the act of providing the first medical care benefits that is separate from the act of providing the first medical care benefits. If, at the time of the first medical care, the Plaintiff itself recognized that the act of providing the third medical care benefits constitutes an independent act of providing the first medical care benefits that is separate from the act of providing the first medical care, it is natural to enter the fact that the act of providing the third medical care was committed in either of the medical care records or electronic medical care records, and if so, it is possible to see that the act of providing the third medical care benefits is not the act of providing the third medical care benefits because of mere negligence or mistake, even if there is some content different from the actual medical care in the other medical care records. However, in the process of entering the written request, the Plaintiff is merely an error of the employee’s negligence in the employee’s negligence or mistake in the process of entering the medical care benefits, and it is not possible for the Plaintiff to provide any explanation that the act of providing the third medical care benefits was not the subject of the claim.

B. Nevertheless, the lower court, solely based on its stated reasoning, determined that the instant violation was caused by an employee’s mistake, and that the Plaintiff cannot be deemed a case where the Plaintiff used the “speed water,” and determined that the instant disposition, which was taken on the premise that the Plaintiff used a fraudulent act, was conducted without considering all the grounds for mitigation. In so doing, the lower court erred by failing to exhaust all necessary deliberations or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules under the National Health Insurance Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)