[1] Where a medical care institution collects expenses from a person who received medical care benefits after providing medical care benefits in breach of the standards prescribed by the relevant statutes, whether such expenses constitute “when a medical care institution receives or causes another person to bear medical care benefits by deceit or other unlawful means” under Articles 52(4) and 85(1)1 of the National Health Insurance Act (affirmative)

[2] The case holding that in case where a hospital imposed a penalty surcharge and a decision on restitution of unjust enrichment on the collection of expenses for medical treatment materials, etc., which violated the standard or matters to be permitted for the provision of medicine for blood diseases, such as lebane diseases, and failed to be separately calculated, the above disposition is unlawful exceptionally on the ground that it does not constitute an unfair collection under Articles 52(4) and 85(1)1 of the National Health Insurance Act

[1] According to the relevant provisions and precedents of the National Health Insurance Act, in cases where a medical care institution provides medical care benefits to the insured, etc. of the national health insurance and collects such benefits, it shall comply with the standard and procedure prescribed by the relevant Acts and subordinate statutes and shall not be permitted to collect expenses in any other way. Therefore, in cases where a medical care institution violates and exceeds the medical care fees, etc. prescribed by the benefit standard rules, etc. and receives medical care benefits from the insured, etc., or conducts voluntary non-benefit treatment without following the standard and procedure prescribed by the benefit standard rules, etc., and collects the medical care benefits from the person who received the medical care benefits in breach of the relevant Acts and subordinate statutes, by mutual agreement between the medical care institution and the patient to pay insurance expenses, etc. to the patient himself/herself, barring any special circumstance, it may be recognized that the medical care institution falls under the “when it receives or causes the health care benefit from the insured, etc.

[2] In a case where, under the National Health Insurance Act, a hospital, which is a medical care institution under the National Health Insurance Act, collected expenses for medical treatment materials, etc., which violated the payment standard or permitted matters in the course of prescribing and administering medicines for blood diseases, such as blocks, and for which separate calculation was made, on the ground that such collection constitutes “the medical care benefit costs received by deceitful or other unlawful means,” the case holding that the above disposition is unlawful exceptionally on the grounds that the payment standard or permitted matters are medically reasonable, such as where medication was performed only when necessary for the treatment of the patient’s life, and where the above hospital’s payment standard or permitted matters are changed to the extent of the patient’s choice by the treatment method, etc.

[1] Articles 52(4) and 85(1)1 of the National Health Insurance Act / [2] Articles 52(4) and 85(1)1 of the National Health Insurance Act

School Foundation and Tol Private Teaching Institute (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

The Minister of Health, Welfare and Family Affairs (Attorney Seo-young et al., Counsel for the defendant-appellant)

October 1, 2009

1. The imposition of a penalty surcharge of KRW 9,690,443,950 against the plaintiff on February 19, 2008 by the Minister of Health and Welfare and the decision of restitution of KRW 1,938,08,790 against the plaintiff on March 31, 2008 by the National Health and Welfare Corporation shall be revoked.

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

The text shall be as shown in the text.

1. Details of the disposition;

(a) Details of the disposition;

(1) The Plaintiff has established and operated the National Health Insurance Act (hereinafter “Plaintiff Hospital”) annexed to the Tol University, which is a medical care institution under the National Health Insurance Act, in Yeongdeungpo-gu, Yeongdeungpo-gu, Seoul.

(2) As a result, the Ministry of Health and Welfare conducted an on-site investigation into the overall health insurance benefits with respect to the Plaintiff hospital by setting the investigation period from April 1, 2006 to September 30, 2006 during the period from December 13, 2006 to September 28, 2006, it determined that the Plaintiff hospital’s receipt of KRW 1,938,879 from the patient receiving treatment from the Plaintiff hospital by means of fraud and other unfair means, during the period from April 1, 2006 to September 30, 2006.

(3) Based on the results of the above on-site investigation, the Minister for Health, Welfare and Family Affairs (hereinafter “the Minister for Health, Welfare and Family Affairs”) imposed a penalty surcharge of KRW 9,690,43,950 on February 19, 208, together with the penalty surcharge of KRW 85(1) and (2) of the former National Health Insurance Act (amended by Act No. 9022, Mar. 28, 2008; hereinafter “Act”) and Article 61(1) [Attachment Table 5] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20190, Jul. 25, 2007; hereinafter “Enforcement Decree”), the Defendant National Health Insurance Corporation (hereinafter “Defendant Corporation”) imposed a penalty surcharge of KRW 9,690,43,950 in lieu of the disposition of business suspension and imposition of penalty surcharge of KRW 80 (hereinafter “instant penalty surcharge”), and the Defendant Health Insurance Corporation (hereinafter “Defendant Corporation”) imposed a disposition of restitution of unjust profits.

(4) The calculation details and penalty surcharge calculation details of the Plaintiff hospital are as follows.

(A) Details of the unfair collection amount

1) The case where the Minister of Health, Welfare and Family Affairs collects the expenses for drugs prescribed and administered as one’s own charges in violation of the Regulations on the Standards for Medical Care Benefits in National Health Insurance (hereinafter “Rules on the Standards for Medical Care Benefits”), the Ministry of Health, Welfare and Family Affairs’s notification (hereinafter “the Regulations on the Standards for Medical Care Benefits”); the detailed standards for and methods of applying the Medical Care Benefits, which are the Ministry of Health, Welfare and Family Affairs’ notification (hereinafter “the Regulations on the Standards for Benefits”); or the permission matters prescribed by the Commissioner of the Korea Food and Drug Administration (hereinafter “permission matters”);

The representative cases in the main text include 624,654,400 won of ○ fluorine (150§¯ or 450§¯) determined the permitted matters to be run as fluorine fluorum cancer and small cell lung cancer. However, the Plaintiff hospital used fluorine fluorum fluorine fluorum surgery at the expense of the Plaintiff hospital to treat the fluorum fluorum fluorum fluorum fluorum fluorum fluorum fluorum fluorum, etc. at the expense of the Plaintiff hospital. The Plaintiff hospital used the fluorum fluorum fluorum fluorum fluorum fluorum fluorum fluorum, etc. at the expense of the Plaintiff hospital’s fluorum fluorum fluorum fluorum flusium fluorum flusium.

2) The case where the Ministry for Health, Welfare and Family Affairs publicly notified the Ministry collected the expenses for medical treatment and the expenses for radiation treatment in addition to the amount determined by the public notice of the act, although the medical treatment materials, radiation treatment expenses, etc. are not included in the list of health insurance benefit and non-health insurance benefit and the points of relative value of benefits (hereinafter referred to as “public notice of the act, etc.”) and the expenses for medical treatment and the expenses for radiation treatment

본문내 포함된 표 구분 부당 징수 금액 대표적 사례 치료재료 75,511,180원 ○ NEEDLE-BONE MARROW BIOPSY (MANAN)는 허가사항이 척추성형술용 바늘이고, 행위수가고시는 골수천자생검에서 치료재료 비용을 별도로 산정할 수 없도록 정하고 있는데, 원고 병원은 이를 골수천자생검에 사용하고 그 비용을 본인 부담으로 처리하였다. 방사선치료 990,600원 ○ C-RAM 및 영상증폭장치 이용은 건강심사평가원이 정한 심사기준에서 중심정맥관 삽입시 사용하는 경우에는 인정하지 않는 것으로 정하고 있는데, 원고 병원은 이를 중심정맥관 삽입 후 위치 고정 등을 위해 사용하고 그 비용을 본인 부담으로 처리하였다. 합계 76,501,780원 ？

3) The case where the defendant Corporation did not claim medical care benefit costs at all but collects all the expenses, including medical care costs, to be claimed from the defendant Corporation (hereinafter “the type of collection in excess of the standard amount”), because it is likely to reduce the medical care costs in the process of examining the medical care costs based on the reduced case in the previous medical care costs review process, even

- The amount of undue collection is KRW 283,440,942 for pharmaceutical products, KRW 6,51,819 for other materials for medical treatment, KRW 71,971,136 for other materials for medical treatment, KRW 4,045,685 for radiation treatment, KRW 39,365,605 for genetic blood and blood ingredients, KRW 343,74 for injection, KRW 209,129,982 for test expenses.

- The amount of the above unfair collection shall be calculated by the amount exceeding the ratio of the principal's burden among the medical expenses collected by the Plaintiff hospital from the patients, and the amount equivalent to the ratio of the principal's burden shall not be

- Cases falling under the above type are that the medical care institution claims for the medical care benefit to the Defendant Corporation, and the part of the medical care benefit cost should be paid to the Defendant Corporation among the medical care benefit costs through the examination process of the Health Insurance Review and Assessment Service. However, there was an example that the Health Insurance and Assessment Service has reduced the medical expenses by judging the same medical care institution as excessive treatment in the process of examination of the previous medical care costs. The Plaintiff hospital anticipated to reduce the medical care benefit cost for the above medical treatment based on the previous reduction cases, and collected all the medical care benefit from the Defendant Corporation without claiming the

4) The case in which the selective medical care is applied only for the primary medical care from the patient and the other medical care support is provided to the main physician and the selective doctor with respect to the other medical care support, and where the selective medical care costs are collected from the primary medical care department as well as the selective medical care department (hereinafter “the type of selective medical care costs collection”).

- Unfairly collected amount of selective medical costs: 622,096,256 won

(B) Details of penalty surcharge calculation

The average monthly average of the costs of review and decision-making, the total costs of medical care benefits (wons) and the total amount of the cost of review and decision-making, which are included in the main sentence, (1), 50,969,737, 3201, 938, 088, 790 323,014, 7983.80 9,690,443,950

* The difference between the aggregate amount of each unfair collection under the calculation basis of the total amount of the undue collection and the above shall have occurred in the course of the fractional disposal of national funds

(b) Amendment process to the salary standards, etc. before and after disposition;

(1) Change in the standard of benefits

(A) Type of collection of expenses for pharmaceutical products violating benefit standard

In the field investigation by the Ministry of Health and Welfare, the Plaintiff hospital asserted that the medical feasibility of the 37 items among the 37 items, which fall under the category of the collection of pharmaceutical expenses in violation of the payment standard, was recognized, and among the 22 items, the Plaintiff hospital applied for the modification of the payment standard.

12 Items 12 (including, in the foregoing, 150§¯ of this NAPin State, 450§¯ of Kadidi acid State, 500 knots of 100§¯ of Kadisoccccccccking administration, etc.) are included. Specific details of [attached Form] are recognized as medical feasibility by the treatment method of the Plaintiff hospital, and all or part of the relevant wage standard notice, permitted matters, or Health & Assessment Review Agency notice was modified.

With respect to the 10 items, there was no change in the standard of benefits, etc. on the grounds that medical feasibility cannot be recognized.

(B) Type of collection of costs for materials for medical treatment for which separate calculation is not required

1) In the case of the NAE-BONE MABOPS (MN) above:

Around 30,000 won is determined on the premise that the number of the acts performed by the Alley Life Findings is using a multi-use body for the Alley Life Findings. However, if a multi-use body is used for the Alley Life Findings, the patient’s additional infection is likely to be increased by increased infection, and the patient’s pain is aggravated due to the increase in treatment. As seen above, prior to reducing the risk of infection and the patient’s suffering, the Plaintiff hospital used the NADL-BOBPS (MN) as one-time increase for the Alley Life Findings, and it was possible for the Plaintiff hospital to use the 10,000-use hospital’s additional money for the 10,000-use hospital’s 200-use hospital’s 10,000-use hospital’s 10,000-use hospital’s 10,000-use hospital’s 1,000-use hospital’s 1,000.

2) The current status of changes in the number of acts as to the above type

본문내 포함된 표 구분 항목 행위수가고시 등이 변경된 항목 비고 치료재료 50 32 ○ 32개 항목 중 2개 항목은 NEEDLE-BONE MARROW BIOPSY (MANAN) 중 11G*10CM, 13G*10CM이고, 나머지 항목은 봉합사 등이다. 방사선치료 1 0 ？

(2) Establishment of a pre-application system for anti-presidential items and an application system for non-presidential items for general medicines

(A) A prior application system for air conditioners

Pursuant to the prior application system for anti-corratal cancer was implemented from January 8, 2006, the scope of medicines (in the case of anti-porratal cancer, etc.), the matters permitted or reported under the Pharmaceutical Affairs Act and subordinate statutes, the matters determined and publicly notified by the Minister of Health, Welfare and Family Affairs, and the matters publicly notified by the head of Health, Welfare and Health Review and Assessment Service, but if particularly necessary for the treatment of the relevant patient, the health care institution provided the head of Health and Welfare Review and Assessment Service with data on the name of the relevant medicine and the scope of prescription and dosage, etc., and provided that the head of Health and Welfare Review and Assessment Service (amended by Ordinance No. 328 of the Ministry of Health and Welfare No. 328 of Oct. 11, 2005) so that it can be prescribed and administered within the scope recognized by the Review and Assessment Service following deliberation by the Deliberative Committee on Severe Diseases

However, medical care institutions can make an effective advance application only when detailed matters on the medical care benefit standards are publicly notified. With the establishment of the medical care benefit system, the detailed contents on the medical care benefit standards are not publicly notified. On January 8, 2006, only the part on high-end cancer was publicly notified. The part on blood disease, such as leuk-cell transplantation, was publicly notified on March 28, 2007, and the part on the treatment procedure for high-end cells, such as leuk-cell transplantation, became practically available for medical care institutions only after August 30, 2007.

(B) The application system for approval of non-payment of general pharmaceutical products

Where a medical care institution intends to prescribe and administer a medicine beyond the scope permitted or reported under the Pharmaceutical Affairs Act and subordinate statutes at the time of prescribing and dumping the general medicine since the implementation of the application system for approval of non-benefit for general medicine from July 11, 2008, it is possible to treat the medicine as non-benefit subject to the treatment and to prescribe and administer it (see attached Table 2 to the Regulations on the Standards for Benefits (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 50, Jul. 11, 2008) when it has obtained approval of medical basis, etc. in accordance with the procedures determined and publicly notified by the Minister of Health, Welfare and Family Affairs.

(3) Amendment of the rules on selective medical care in the form of the selective medical application

(A) On September 5, 200, the rules on selective medical treatment enacted by Ordinance of the Ministry of Health and Welfare No. 174 with respect to the form of an application for selective medical treatment set forth in the form in which a patient requesting selective medical treatment applies for multiple selective medical treatment by specifying the name of the doctor in charge of selective medical treatment and then the applicant can sign or affix his/her seal on the application form (hereinafter “former form”).

(B) On November 28, 2008, the rules on selective medical treatment amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 78 on November 28, 2008, following the issuance of the instant disposition, stated in the application form similar to the previous application form “if the applicant delegates the principal medical doctor to allow him/her to choose a medical treatment support and doctor, he/she shall give consent to the principal medical treatment and doctor to select a doctor, and shall bear additional expenses to be imposed on the medical treatment support and doctor (such as examination, video diagnosis, radiation treatment, anesthesia, and mental therapy). * Preparation only where the principal medical doctor delegates the selection of an selective medical doctor with the selective medical treatment support and doctor’s signature or seal of the applicant (hereinafter “Revised Form”).

[Reasons for Recognition] The facts without dispute, Gap's entries in Gap's 3, 4, 6, 8, 9, 12 through 15, 18, 26, 27, 30, 31, 32, 35, 36, 37, 38, 39, 40, 41, Eul's evidence, and Eul's 2, 3, 44, 5, 6, 10, and 11, and the purport of the whole pleadings

2. The plaintiff's assertion

A. Non-existence of grounds for disposition

For the following reasons, the type of the act of the Plaintiff hospital cannot be deemed to constitute “when the medical care institution receives or makes another person bear medical care benefit costs by deceit or other improper means” under Article 52(4) or 85(1)1 of the Act.

(1) Type of collection of the cost of pharmaceutical products in violation of the reimbursement standard, type of separate collection of the cost of materials for medical treatment for separate calculation, and type of collection exceeding the standard amount

Blood diseases, such as lebal diseases, are difficult to seek the life or health of patients with lebal diseases, including lebal diseases, only with medical treatment within the scope prescribed by the standard of benefits or the matters permitted. As such, medical care institutions are obliged to provide the optimal medical treatment required to the patient even though they violated the standard of benefits or exceed the standard of benefits. As such, in the event they perform the above medical treatment for the treatment of a disease, they cannot be directly claimed from the patient, and the law does not explicitly stipulate that the above expenses shall not be collected from the patient. Therefore, even if the method of treatment exceeds the standard of benefits or the matters permitted, if the method of treatment exceeds the standard of benefits or exceeds the standard of benefits or exceeds the standard of benefits, they may claim the patient for the expenses

(2) Type of collection of selective medical expenses

In addition, the form of the Plaintiff hospital’s application for selective medical treatment is not different from the form prescribed by the amended rules on selective medical treatment, as well as the explanation of the matters concerning selective medical treatment from the Plaintiff hospital on selective medical treatment, and then comprehensively delegate the relevant matters to the Plaintiff hospital in charge of selective medical treatment. In such a case, it cannot be deemed as a violation of the relevant statutes on selective medical treatment.

B. As to the deviation and abuse of discretionary power

The Plaintiff hospital’s medical treatment of an incurable disease, such as lebane disease, based on the benefit criteria that limits the volume, frequency, adaptation, test items, etc. of medicine, it has limitations to seek the patient’s life and health. Thus, the Plaintiff hospital’s medical treatment was conducted in violation of the benefit criteria. The Plaintiff hospital’s charge collected on the patient’s side is merely the actual transaction level of medicine and material for medical treatment, and thus does not lead to separate profits in the Plaintiff hospital. In light of the fact that the Plaintiff hospital contributed to the treatment of blood diseases such as lebane, etc. and the development of medical circles, the Plaintiff hospital imposed a penalty surcharge at five times the maximum amount of the penalty surcharge imposed under Article 61 [Attachment Table 5] of the Enforcement Decree of the Act, and the disposition of this case, which decided to recover the total amount of unfair collection, is deviating from and abusing discretion by violating the principle of excessive prohibition.

3. Determination

A. Determination as to the type of collection of the cost of medicines in violation of the benefit standard, the cost of materials for medical treatment for separate calculation, etc., and the absence of grounds for disposition as to the type of collection exceeding the standard amount

(1) As to the type of collection of drug costs in violation of benefit standard

(A) The Act provides for matters concerning insurance benefits for the purpose of improving citizens’ health and promoting social security by providing citizens with insurance benefits for the prevention, diagnosis, and rehabilitation of diseases and injury, and for the improvement of their health (Article 1). For this purpose, medical institutions established under the Medical Service Act, pharmacies registered under the Pharmaceutical Affairs Act, and other medical care institutions meeting certain requirements (Articles 39 and 40). If a medical care institution imposes medical care benefits on insurers, policyholders, and their dependents by fraud or other improper means, the Minister of Justice may order the medical care institution concerned to suspend its business for a certain period of time or impose a penalty surcharge in lieu thereof (Article 85). The Defendant Corporation provides that all or part of the amount equivalent to the medical care benefits should be collected (Article 52) so that the relevant provisions of the Act maintains the sound financial management of the national health insurance premium paid by the citizens by sanctioning the act of having provided citizens with legitimate or appropriate medical care without providing medical treatment (Article 52).

(B) According to the relevant regulations and precedents of the National Health Insurance Act (see, e.g., Supreme Court Decisions 2003Du1344, Oct. 28, 2005; 2006Du10368, Jun. 15, 2007) and the attitude of judicial precedents (see, e.g., Supreme Court Decisions 2006Du10368, Oct. 28, 2005); where the health care institution provides health care benefit to the insured, etc. of the national health insurance and collects such benefit, it shall comply with the standard and procedure prescribed by relevant Acts and subordinate statutes; and where the health care institution collects the benefit from the insured, etc. of the national health insurance, it shall not be allowed to collect the benefit from the health care institution in violation of the standard and procedure prescribed by relevant Acts and subordinate statutes; and thus, it may be recognized that the health care institution arbitrarily receives the benefit from the insured, etc. of the national health insurance, or that it should bear the benefit from the health care benefit by fraud or other method.

(C) However, considering the following circumstances, i.e., (i) the Plaintiff hospital’s medical treatment method prior to the above change: (i) the scope of prescription and dosage of the relevant medicine and medicine does not fall under the benefit standard or the scope of permitted matters at the time of prescription and dosage of the medicine for the patient; (ii) the benefit standard for the 12 items from among the 37 items that fall under the above category after an on-site investigation of the Plaintiff hospital, or the changed scope of prescription and dosage, the Plaintiff hospital’s medical treatment procedure for the treatment of the patient at least 12 items, can be deemed to have medical feasibility even if it is determined at the time of treatment; (iii) the Plaintiff hospital received the aforementioned prior consent from the Plaintiff hospital, at least the cost of the medicine and medicine collected from the patient; and (iv) there is no benefit from the Plaintiff hospital; and (iv) the Plaintiff hospital’s prior medical treatment procedure or other treatment procedure for the treatment of the patient in violation of the aforementioned provision should be deemed to have been provided without any reasonable consent from the Plaintiff hospital.

If the above legal principle applies to this case without exception, the Plaintiff hospital is bound to provide the above special expenses without being compensated for any expenses from the Defendant Corporation or the patient, the insured, the insurer, or to provide the above special expenses without being spent. However, if the Plaintiff hospital forces the electronic method to the Plaintiff hospital, it would infringe on the Plaintiff’s property right’s essential part. If the Plaintiff hospital permits the latter method, it would be likely to violate the Constitution. If it infringes on the patient’s right to life, and it excessively regulates the doctor’s medical treatment with the duty of care to take best measures to prevent danger depending on the patient’s specific symptoms or circumstances, it would also be likely to violate the Constitution.

(2) As to the separate collection type of expenses for materials for medical treatment, etc. for which separate calculation is not possible

The following facts revealed as above. ① If the Plaintiff hospital determines that it is necessary for the treatment of blood disease patients, such as bl. 1, the Plaintiff hospital appears to use the materials for medical treatment corresponding to the above type. ② If the Plaintiff hospital cannot use the materials after an on-site investigation into the Plaintiff hospital in the Ministry for Health, Welfare and Family Affairs, the Plaintiff hospital allowed the patient to use the materials for medical treatment at its own expense. ③ If the Plaintiff hospital’s 32 items of the above type after the on-site investigation into the Plaintiff hospital were conducted by the Ministry for Health, Welfare and Family Affairs, the Plaintiff hospital’s use of the materials for medical treatment can be determined separately from the Plaintiff hospital’s use of the materials for medical treatment. ④ If the Plaintiff hospital’s use of the materials for medical treatment can not be determined separately from the Plaintiff hospital’s use of the materials for medical treatment, the Plaintiff hospital’s use of the materials for medical treatment can not be determined separately from the Plaintiff hospital’s use of the materials for medical treatment, and the Plaintiff hospital’s use of the materials for medical treatment can not be determined otherwise from the Plaintiff hospital’s use of treatment.

(3) As to the type of collection above the standard amount

The following facts revealed in the facts as seen earlier, namely, ① only a part of the expenses for the medical treatment is claimed to the principal as the subject of insurance, and the remainder is the structure for the Defendant Corporation. As such, in any case, the medical care institution is unable to immediately claim the entire expenses for the patient with the burden on the patient. ② As to the portion to be borne by the Defendant Corporation, there is a procedure in which the Defendant Corporation can claim the expenses for the medical care benefits by proving the medical basis, etc. in the review process of the Health Insurance Review and Assessment Agency, and if the Defendant Corporation disposes of the reduction of the medical expenses through administrative litigation on the reduction of the medical expenses, etc., the medical care institution can seek relief by dispute over the medical feasibility through the administrative litigation on the reduction of the medical expenses. ③ In light of the fact that the Plaintiff hospital is anticipated to reduce the medical expenses for the same medical treatment conducted by the Plaintiff hospital or other health care institution in the process of examining the medical expenses of the former Health Review and Assessment Service, it is inevitable to impose sanctions on the patient by the part of the Defendant Corporation.

Therefore, there is no error of law regarding the type of collection that the Plaintiff hospital promptly collects all of the expenses from the patient's side with the patient's own charge, which constitutes "when the medical care institution receives or causes the medical care benefit cost from the policyholder, etc. by deceit or other improper means" under Article 52 (4) or 85 (1) 1 of the Act.

B. Determination as to the absence of grounds for disposition regarding the type of selective medical costs collection

Considering the following circumstances, the evidence Nos. 19, 20, 21, and 33 as a whole, the purport of the argument is comprehensively taken into account: (a) the Plaintiff hospital received a comprehensive delegation from the patient with respect to selective medical treatment for the treatment support and selective medical treatment provided by the doctor in addition to the primary medical treatment; and (b) the burden of selective medical treatment costs imposed on the patient for the treatment support and doctor in addition to the primary medical treatment is not deemed to constitute “the time when the medical care institution receives or causes the patient to bear the medical care benefit costs from the policyholder, etc. by fraud or other improper means” under Article 52(4) or

① The form of the application for selective medical treatment used by the Plaintiff hospital separates “the content of selective medical treatment” into “1. Medical examination, treatment, surgery, medical care, 2. Test, 3. Image diagnosis, 4. Radiation examination, 5. anesthesia and 6. ........” The form of the application for selective medical treatment is written in the form of “the patient’s selective medical treatment” and written in the form of “the patient’s selective medical examination and treatment will bear the fee imposed on the patient’s selective medical treatment support and selective medical doctor (the patient’s selective medical examination, image diagnosis, radioactive treatment, anesthesia, and 6. ...).”

According to the application for selective medical examination of the Plaintiff hospital, it is possible for the patient side to apply for the selective medical examination and treatment in the same way as the previous form before the amendment, and to delegate the doctor in charge of selective medical examination and treatment to the doctor in charge of selective medical examination and treatment in the same way as the revised form.

② The Plaintiff hospital has obtained the consent of the doctor in charge of selective medical treatment who requested selective medical treatment from the patient who requested selective medical treatment using the aforementioned selective medical application form, stating his/her intention in charge of selective medical treatment, but has been delegated to the doctor in charge of selective medical treatment in charge of selective medical treatment so that the doctor in charge of selective medical treatment can choose a doctor in charge of selective medical treatment. In the process, the Plaintiff hospital had gone through the procedure of explaining the patient’

③ According to the provisions of Article 37-2 of the former Medical Service Act (amended by Act No. 8067 of Oct. 27, 2006), and Articles 4, 5, and 4 of the Regulations on Optional Medical Care with the delegation of the aforementioned provisions, medical institutions may collect the total amount of additional expenses incurred in relation to selective medical treatment from patients only for selective medical treatment directly provided by a doctor in charge of elective medical treatment and for calculation of additional expenses. However, there are no explicit provisions prohibiting patients from entrusting the main medical doctor with matters concerning elective medical treatment with respect to elective medical treatment.

However, the rules on selective medical treatment enacted by Ordinance of the Ministry of Health and Welfare No. 174 on September 5, 200 did not stipulate a statement to the effect that patients can delegate matters concerning selective medical treatment with respect to selective medical treatment in the form of selective medical treatment. However, upon the amendment by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 78 on November 28, 2008, the rules stipulate that the main medical doctor and doctor may be delegated with the selection of medical treatment support and doctor. The amendment of the selective medical form is based on the reflective consideration that the enactment of the previous selective medical form and the enactment of the comprehensive delegation clause on selective medical treatment is unfair, not reflecting the reality of the medical community.

④ In order to treat a disease, a medical doctor in charge of selective medical treatment who provides medical treatment may request a medical doctor and a medical doctor to conduct an examination, diagnostic examination, radiation treatment, etc., and provide medical treatment after determining the guidelines, scope, etc. of the patient according to the result of the request. As such, there is a practical need to recognize comprehensive delegation of medical treatment support and selective medical treatment to a doctor in charge of selective medical treatment for prompt and efficient treatment.

C. Sub-resolution (Scope of Revocation)

Therefore, the instant disposition, as seen earlier, is unlawful in that the Plaintiff hospital’s collection of the Plaintiff’s principal charge from the patient’s side in a uniform manner on all separate types of charges, such as the type of charge collection of medicines in violation of the payment standard and the cost of materials for medical treatment, etc. for separate calculation, constitutes “when the medical care institution received or made the medical care benefit cost from the policyholder, etc. by deceit or other unlawful means,” and that it cannot be viewed as an unfair collection in regard to the type of selective medical care cost collection. However, the evidence presented by the party or evidence presented by the court by the examination of evidence cannot be calculated in detail in the amount of legitimate penalty surcharge or the amount of unjust enrichment to be recovered, and thus, the entire revocation shall be made.

D. Determination on the assertion of deviation or abuse of discretionary power (preliminary determination)

Considering that the type of the Plaintiff’s act constitutes “when the medical care institution receives or renders another person bear medical care benefit costs from the insured, etc. by fraud or other improper means” under Article 52(4) or 85(1)1 of the Act, considering the following circumstances acknowledged by the aforementioned evidence, even if the Defendants consider the public interest such as soundness and certainty of the health insurance finance to be achieved through the instant disposition, and the protection of the patient’s right to claim insurance payment, the instant disposition is deemed unlawful by abusing and abusing discretionary power, and thus, it is difficult to avoid revocation.

① The Plaintiff hospital: (a) implemented an incentive method to induce the state in which a blady cell in a blady organ falls below 5% by making two or more medicines simultaneously or continuously administering the blady disease; (b) and (c) to prevent the recurrence of a part of blady cells remaining in the body-speed through an additional complex chemical method even after the given state, the following is implemented; and (d) thereafter, there is room to deem that the Plaintiff hospital or the patient was inevitable to have performed medical treatment in violation of the payment standards or permitted matters in order to prevent additional infections caused by a disease of the patient's immunodeficiency power and to rescue the patient's life and health.

② In light of the type of the Plaintiff hospital’s act, the Plaintiff hospital did not collect personal charges with false content, and both collected personal charges according to the content of the medical treatment. The details of the patient’s charges also do not have the benefit attributable to the Plaintiff hospital as a reasonable extent corresponding to the actual market price of medicine and materials for medical treatment. The use or implementation of the Plaintiff hospital’s act, medicine, and materials for medical treatment in excess of the payment standard or the permitted matters seems to result from the occupational conscience of the doctor in charge of seeking to rescue the patient’s life or health.

③ A part of the Plaintiff hospital’s use or implementation of an act, medicine, or material for medical treatment in violation of the benefit standard or permitted matters, was modified according to the benefit standard or permitted matters as used by the Plaintiff hospital after the instant disposition was taken.

④ Article 61(1) [Attachment 5] of the Enforcement Decree of the Act provides a statutory order to suspend business and impose penalty surcharges, but in light of the content and purport of the delegation provision of the parent law, the principle of excessive prohibition and the principle of equality under the Constitution, etc., even if a violation of the same type is committed, an appropriate amount of penalty surcharges should be determined depending on the case, comprehensively taking into account the scale, period, social criticism, personal circumstances of the offender, and the size of illegal gains gained from the violation. Thus, the amount is not fixed, but it is interpreted as the maximum limit (see Supreme Court Decision 2005Du11982, Feb. 9, 2006). This case is a case where the medical record was falsely prepared or a false patient was received for the treatment of patients suffering from blood diseases, such as leuk disease, which is an incurable disease, etc., unlike the case where the medical record was received.

⑤ The Plaintiff hospital is a medical institution specializing in the treatment of blood diseases, such as lebane diseases, and is located in the first and fourth world in the Republic of Korea based on the frequency of surgery for the transplant of lebane cells, and there is no data that the Plaintiff hospital separately provided patients with medical treatment exceeding or violating the payment standards or permission standards, except for the treatment of lebane diseases, such as blood diseases.

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons of the judgment as per Disposition.

[Attachment]

Judges Han-chul (Presiding Judge)