(영문) 서울행정법원 2014.10.30.선고 2014구합54332 판결

A. The plaintiff is a doctor who opened and operates a 'Bsung Foreign Service Council member' located in Ulsan-si (hereinafter referred to as the "Council member of this case") on March 16, 2009 and the 'Bsung Foreign Service member' located in Ulsan-si.

B. From April 2009, the Plaintiff traded drugs with the name-related contracting company (hereinafter “name-related contracting company”), and paid KRW 9,472,566 in around 209, and KRW 38,025,781 in the name-related contracting company as the purchase price for medicine, etc. around 2009.

C. From January 4, 2011 to March 18, 2011, the instant member supplied specialized medicines, etc. over ten times to the instant member. The instant member prepared a tax invoice to the effect that the instant medicines were supplied for KRW 12,315,300, and paid KRW 12,315,300 to the National Health Insurance Corporation as medical care benefit costs even if the instant medicines were paid after claiming for the payment of KRW 12,315,30, the instant medicines were actually paid KRW 31,879,140, out of KRW 12,315,300.

D. On May 10, 2013, the Plaintiff was sentenced to suspension of indictment for a violation of the Medical Service Act, which states that “the Plaintiff, as indicated in the foregoing paragraph (c), was urged to use medicines from January 4, 2011 to March 18, 201, to receive a certain percentage of the purchase price, and as the price was paid, from January 4, 2011, to receive a credit rating, from the business operator of the pre-paid drugs, and acquired economic benefits equivalent to the above amount by receiving 3,879,140 won in total at the pre-paid premium for ten times in total.” D of the pre-paid drugs was sentenced to suspension of indictment on September 27, 2013, as seen above, to the effect that “the Plaintiff provided the Plaintiff with economic benefits, such as adoption of medicines manufactured, sold, and inducement to sell medicines,” and thus, was sentenced to a fine of KRW 1,000,000, Seoul Central District Court (Seoul District Court).

E. On February 27, 2014, the Defendant: (a) received money and valuables from the Plaintiff on the grounds that the Plaintiff received money and valuables at a discount of drugs from the Plaintiff on the market name drug as stated in the foregoing paragraph (c); (b) Article 66(1)1 of the former Medical Service Act (Amended by Act No. 11005, Aug. 4, 201; hereinafter “the Act”); (c) Article 32(1)5 of the former Enforcement Decree of the Medical Service Act (Amended by Presidential Decree No. 23488, Jan. 6, 2012; hereinafter “Enforcement Decree”); and (d) Rule on Administrative Dispositions related to Medical Services (Amended by Presidential Decree No. 2348, Jan. 6, 2012; hereinafter “Rules on Administrative Dispositions”) [Attachment] [Attachment] of the individual criteria for administrative dispositions on February 2, 201

A. Pursuant to 35), two months (from April 1, 2014 to May 31, 2014) (hereinafter “instant disposition”) were imposed upon the suspension of qualification for a doctor’s license (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 4, Gap evidence 5, Eul evidence 7-2, Eul evidence 8, Eul evidence 10, Eul evidence 11, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff did not agree to receive a discount on the purchase price in return for soliciting C to use drugs, and the Plaintiff did not know that E, who was the head of the nursing team of the instant member, agreed on the matters on the discount of drugs C and drugs. Therefore, the instant disposition did not have any grounds for the relevant disposition.

2) In light of the fact that the Plaintiff did not have received a request for use of a medicine from C, and the Plaintiff only used a large number of medicines on the basis of medical judgment, which is a water surface anesthesia, supplied in the prestigious medicine, which is convenient for the Plaintiff, not using the said medicine in response to a request from C. The amount of usage of the prestigious medicine has increased due to a large number of patients, and accordingly, there was a possibility that the amount of usage of the prestigious medicine was increased, and accordingly, the prestigious medicine might be at the time of selling the medicine, and the medical care institution cannot arbitrarily determine the price of the medicine at the time of claiming the medical care benefit cost from the Health Insurance Corporation, and thus the Plaintiff could not claim the medical care benefit cost at the price of the medicine purchased at

3) Considering the circumstances in the above Section 2 and the Plaintiff’s conduct of medical practice in good faith without being subject to criminal punishment or administrative disposition for a violation of the Medical Service Act other than the instant disposition, the Plaintiff was merely 3,879,140 won, and the Plaintiff was unaware of the fact that discount of drugs is subject to criminal punishment or administrative disposition, the instant disposition was excessively harsh to the Plaintiff and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

1) Determination on the first argument

In light of the above facts and evidence, it is reasonable to view that the Plaintiff was aware of the following circumstances, i.e., the Plaintiff’s internal statement and the purport of the evidence No. 4-2 and No. 5, i.e., the Plaintiff, after establishing the instant member on March 16, 2009, made transactions of clear drugs and drugs from April 16, 200. The Plaintiff continued to receive 30% discount on the price of drugs; ② the Plaintiff paid to the instant drug purchase price, including prescription drugs, around 209, around 38,025,781; ③ it is reasonable to view that the Plaintiff was aware of the fact that the Plaintiff was aware of the fact that the instant drug was supplied to the Plaintiff at a discount price for the instant drug, and that the Plaintiff did not receive discount on the price of the instant drug at a discounted price for the instant drug, rather than the instant drug at a discount price for the instant drug.

2) Judgment on the second argument

Article 32(1)5 of the Enforcement Decree of the National Health Insurance Corporation provides that medical personnel shall not receive all economic benefits in connection with the adoption and prescription of drugs, etc. (the average quarterly price and the total amount of the purchased medicines in each quarter). ② Medical care institutions shall calculate the actual quantity and the actual purchase price (the price calculated by dividing the total amount of the medicines purchased in each quarter by the total amount of purchase) as the purchase price for medical treatment from the first day of the second month of the following year, and claim the price as the medical care benefit cost. However, if the price exceeds the notified maximum amount, the maximum purchase price should be claimed. ③ However, the Plaintiff’s claim for the medical care benefit cost before discount rather than claiming for the medical care benefit cost with the actual purchase price, and ④ the Plaintiff’s claim for the medical care benefit cost before discount is reasonable in light of the Plaintiff’s duty and the fact that the Plaintiff’s purchase of the medicines in the above 12,315,300 won by receiving discount from the National Health Insurance Corporation is unreasonable.

3) Determination on the third argument

In light of the following circumstances, i.e., (i) with respect to medical practice conducted by a doctor, except as otherwise provided in the Medical Service Act, etc., any person may not interfere therewith; (ii) with respect to medical practice, the doctor is required to prescribe medicines with the most appropriate efficacy; and (iii) with respect to medical practice conducted by a doctor, there is a strong need for public interest to eliminate the practices of offering money and valuables to a pharmaceutical company by a pharmaceutical company for the purpose of sales promotion; and (iv) with respect to the disposition of this case, the administrative disposition of this case is conducted in accordance with the Administrative Disposition Rule [Attachment Table] 2. 35], even if considering various circumstances asserted by the Plaintiff, there is no violation of law that deviates from or abused the discretion of the disposition of this case. Therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

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