[1] Requirements for public notice to constitute an administrative disposition that is subject to appeal litigation

[2] The case holding that a medicine benefit list, a non-benefit list, and a limited amount table of benefits, which are notified by the Ministry of Health and Welfare, constitute an administrative disposition subject to appeal

[3] The case holding that a pharmaceutical company has standing to sue to seek revocation of the drug benefit and non-benefit list as notified by the Ministry of Health and Welfare

[4] Whether a court may render ex officio a ruling of assessment (affirmative), and the standard for determining whether a substantial inappropriate public welfare, which is the requirement for rendering a ruling of assessment, is considerably inappropriate

[1] Where a public notice has a general and abstract character, it constitutes an administrative disposition, but it itself has a characteristic to regulate the specific rights and duties or legal relations of the people without mediating other enforcement acts.

[2] The case holding that the list of medicine benefits, non-benefit list, and the limited amount table of benefits notified by the Ministry of Health and Welfare (amended by the Ministry of Health and Welfare No. 2002-46 of the Ministry of Health and Welfare) are an administrative disposition subject to appeal litigation because they have a characteristic to directly regulate the legal relations of national health insurance, the National Health Insurance Corporation

[3] The case holding that the pharmaceutical company has standing to sue to seek revocation of the above notification in case where the pharmaceutical company's legal interests are infringed as the upper limit of the medicine that it manufactured and supplied is reduced due to the pharmaceutical benefit's price increase due to the pharmaceutical benefit, the pharmaceutical company's price increase due to the pharmaceutical benefit's price increase due to the National Health Insurance Act, the Enforcement Decree of the same Act, the Regulations on the Medical Care Benefits for National Health Insurance (Ordinance No. 207 of Dec. 31, 2001).

[4] In a case where an administrative disposition is unlawful, in principle, the revocation or alteration of such illegal disposition may be rendered in an exceptional case where the revocation or alteration of such disposition is considerably inappropriate for public welfare, and thus, such revocation is not permitted. Such circumstance judgment may ex officio be made on the basis of various circumstances shown in the record even in the absence of a party’s obvious assertion. However, whether the requirement is considerably inappropriate for public welfare should be determined by comparing and comparing the need to revoke or alter the illegal administrative disposition and the situation against public welfare that may arise from such revocation or alteration.

[1] Article 2 of the Administrative Litigation Act / [2] Article 39 of the National Health Insurance Act / [3] Article 39 of the National Health Insurance Act, Article 24 (3) of the Enforcement Decree of the National Health Insurance Act, Article 12 of the Administrative Litigation Act / [4] Article 19 of the Administrative Litigation Act,

[1] Supreme Court Decision 78Nu227 delivered on April 24, 1979 (Gong1979, 11950) Supreme Court Decision 2003Du23 delivered on October 9, 2003 (Gong2004Sang, 355), Supreme Court Decision 2003Du41 Delivered on May 12, 2004 / [4] Supreme Court Decision 98Du4061 Delivered on May 8, 1998 (Gong198Sang, 164), Supreme Court Decision 98Du18565 delivered on March 9, 199 (Gong199, 680) and Supreme Court Decision 200Du19709 delivered on October 19, 209 (Gong1999 and 680).

Hanmi medicine Co., Ltd. (formerly: Hanmi medicine Industry Co., Ltd.) and one other (Attorneys Lee Im-soo et al., Counsel for the plaintiff-appellant)

The Minister of Health and Welfare (Law Firm Gyeong & Yang, Attorneys Yellow-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Nu9932 delivered on January 26, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. When a notice has a general and abstract character, it constitutes an administrative disposition, but it itself, without mediating other enforcement acts, shall be deemed to constitute an administrative disposition (see Supreme Court Order 2003Da23, Oct. 9, 2003).

After compiling the admitted evidence, the court below acknowledged the facts as stated in its decision, and found it as follows: (1) the table of the amount of medicine benefits, non-benefit list and the amount of benefits (amended by Presidential Decree No. 2002-46 of the Ministry of Health and Welfare No. 2002-46 of the Ministry of Health and Welfare; hereinafter referred to as the "public notice of this case") to the effect that the specific pharmaceutical company's specific medicines are paid to the National Health Insurance or the National Health Insurance Corporation, or the medical care institution is specified in the specific limit of the medicine expenses that the medical care institution is able to recover; (2) the public notice of this case is applied without intervention in the administrative agency's special enforcement act; and (3) the change in the amount of specific medicines can immediately be paid by the National Health Insurance or the National Health Insurance Corporation, or by the medical care institution. In light of the relevant laws and regulations and the records, the judgment of the court below is just and there is no violation of the rules of evidence or misapprehension of legal principles as to the disposition in the grounds for appeal.

B. Examining the above facts in light of the National Health Insurance Act (hereinafter referred to as the “Act”), the lower court’s determination on the price of the medicine is justifiable, and thus, based on the facts stated in the above provision of Article 39(2), Article 39(3) of the Enforcement Decree of the National Health Insurance Corporation’s Act and subordinate statutes regarding the methods, procedures, scope, and exclusion of health care benefit; and thus, based on the provision of medical care benefit guidelines (Article 207 of the Ministry of Health and Welfare; hereinafter referred to as the “Rules on Health Care Benefits”) provides that the Plaintiffs and manufacturers of the medicine are entitled to request for the determination of whether the price of the medicine is subject to health care benefit or new medicine that is not determined for the purpose of the provision of health care benefit, and thus, the Plaintiffs are entitled to receive the determination on the price of the medicine and the determination on the price of the medicine and the determination on the price of the medicine and the determination on the price of the medicine and the determination on the price of the medical care benefit already notified under Article 12(1) of the Regulations.

2. Regarding ground of appeal No. 2

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding. Under the relevant provisions, the defendant calculated the average purchase price of medicines by item (the total purchase price divided by the total purchase price) of the medical care institutions and the medical care institutions confirmed through the management of the materials, etc. submitted by the medical care institutions for post management, and determined that the upper limit of the medicines subject to medical care benefits should be adjusted (Article 13 (2) 1 of the Adjustment Criteria), and that the manufacturer has supplied medicines at a remarkably lower price than the average market price with other medical care institutions (Article 13 (2) 4 of the Adjustment Criteria), and that the defendant, as stated in its reasoning, deducted the above upper limit of the pharmaceutical products from the total purchase price of each of the above medical care institutions for the specific wholesale business establishments, based on the fact that the plaintiffs supplied the above medicines at a lower rate than the average market price of each of the above medical care institutions for the specific wholesale business establishments subject to investigation, the defendant, as stated in its ruling, found that the plaintiffs supplied the above medicines at a lower rate for the specific retail market price and the specific retail market price of the above.

In light of relevant Acts and subordinate statutes and the records, the above judgment of the court below is just, and there is no violation of the rules of evidence, there is no error in the misapprehension of legal principles as to the method of adjusting the maximum amount under Article 13 of the Mediation Criteria, or deviation

3. As to the third ground for appeal

In a case where an administrative disposition is unlawful, in principle, cancellation or modification of the illegal disposition is a matter of principle, and in a case where the cancellation or modification of the illegal disposition is considerably inappropriate for public welfare, it may be decided ex officio on the basis of various circumstances shown in the record even in the absence of a party’s clear assertion. However, whether it is considerably inappropriate for public welfare, which is the requirement thereof, shall be determined by comparing and comparing the necessity for cancellation or modification of the illegal administrative disposition and the situation against public welfare which may arise due to the cancellation or modification thereof (see Supreme Court Decisions 98Du4061, May 8, 1998; 9Du9674, Jan. 19, 2001, etc.).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and determined that the cancellation of the upper limit amount of the instant medicine in the instant notice may cause inconvenience due to the settlement of personal charges of the health insurance subscribers related to the instant medicine, but it is difficult to view that it directly affects the health insurance finance or significantly impedes the operation of the health insurance system, and thus, it cannot be deemed that the cancellation of the upper limit amount of the instant medicine in the instant notice cannot be deemed a case significantly inappropriate for the public welfare.

Examining the above legal principles in light of the records, we affirm the above determination by the court below as just, and there is no violation of the rules of evidence and misapprehension of legal principles as to the requirements for judgment of assessment as alleged in the grounds for appeal.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)