In a case where a person qualified and licensed as a medical person established a medical institution pursuant to the Medical Service Act and provided health insurance policyholders or their dependents with health care benefit, but a medical person who already established and operated another medical institution has violated the Medical Service Act by practically establishing and operating the said medical institution, or by establishing and operating the said medical institution under the name of another medical person, whether such circumstance alone can recover the amount equivalent to the health care benefit costs refused or received (negative)

Articles 1, 41(1), 42(1), and 47(1) of the National Health Insurance Act; Article 1, 4(2), 33(2)1 and (8), and 90 of the Medical Service Act

Supreme Court Decision 2015Du36485 Decided May 30, 2019 (Gong2019Ha, 1310)

Plaintiff (Law Firm Sejong, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Plaintiff Intervenor 1 and one other (Law Firm Ba, Attorneys Lee In-hwa et al., Counsel for the plaintiff-appellant)

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

Seoul High Court Decision 2014Nu63017 decided February 10, 2015

The lower judgment is reversed, and the case is remanded to the Seoul High Court. The Plaintiff’s motion to intervene in the case is dismissed. The litigation cost incurred by the Plaintiff’s motion to intervene is borne by the Intervenor.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 2

A. 1) The National Health Insurance Act was enacted for the purpose of contributing to the improvement of national health and the promotion of social security by providing citizens with insurance benefits for the prevention, diagnosis, and rehabilitation of diseases and injury, for childbirth and death, and for the improvement of health (Article 1). The National Health Insurance Act provides health care benefits for diseases, etc. of the insured and their dependents, including “medical examination, examination, medicine (mor medicine), provision of materials for medical treatment, treatment, surgery, and other treatment, etc.” (Article 41(1)), and the National Health Insurance Corporation shall pay the costs of health care benefits provided by health care institutions, including “medical institutions established under the Medical Service Act” (Articles 42(1) and 47(1)).

In addition, the Medical Service Act was enacted for the purpose of protecting and improving health of the people by providing for matters necessary for national medical fees so that all the people can benefit from high-quality medical treatment (Article 1); and, in addition, Article 33(2)1 provides that only a doctor, dentist, oriental medical doctor, or midwife (hereinafter “medical person”); medical personnel shall not establish and operate at least two medical institutions (the main sentence of Article 33(8); hereinafter “the prohibition of double establishment”); medical personnel shall not establish or operate a medical institution under the name of another medical personnel (Article 4(2); hereinafter “the prohibition of double establishment”); and in combination with the main sentence of Article 33(8), the medical personnel shall not establish or operate a medical institution (hereinafter “the prohibition of double establishment”).

Meanwhile, Article 33(2) of the Medical Service Act provides a penal provision (Article 90) for a person employed by not only a person who has established a medical institution but also a person who is not eligible to establish a medical institution, as well as a person who has been employed by a “person who is not eligible to establish a medical institution.” On the other hand, in the case of violation of Article 33(8), there is a penal provision for a medical person who established and operated two or more medical institutions, but there is no penal provision for a person employed by the medical person, and there is no penal provision for a person who performed a medical act. In the case of violation of Article 4(2), there is no penal provision for a medical person who established and operated

2) As can be seen, the National Health Insurance Act and the Medical Service Act are the same purpose in that they are the Act for the Protection and Promotion of Public Health and Health, but the National Health Insurance Act provides for the provision of medical care benefits suitable for the treatment of diseases, whereas the Medical Service Act provides for medical personnel, medical institutions, and medical care to ensure that all citizens enjoy high-quality medical care, and it is difficult to view the legislative purpose and subject to regulation. Therefore, the scope of “medical institutions established under the Medical Service Act,” which are recognized as medical care institutions under the National Health Insurance Act, ought to be determined by taking into account the difference between the National Health Insurance Act and the Medical Service Act, as an institution that provides health care benefits prescribed under

In addition, each of the instant provisions of the Medical Service Act limits the establishment and operation of at least two medical institutions, and the establishment or operation of a medical institution under the name of another medical person. However, there is no intrinsic difference in that such medical institution was established by a medical person permitted to establish a medical institution. Moreover, it is difficult to readily conclude that there is a qualitative difference in the medical care benefits for treating diseases compared with those for which a person who established a normal medical institution falls short of, or exceeds, the standards for medical care benefits prescribed in the National Health Insurance Act, barring any other circumstances such as falling short of, the standards for medical care benefits prescribed in the National Health Insurance Act. The Medical Service Act, in violation of each of the instant provisions of the Medical Service Act, did not stipulate any penal provision against

In full view of such circumstances, if a person qualified and licensed as a medical person opens a medical institution pursuant to the Medical Service Act and provides health insurance policyholders or their dependents with health care benefit prescribed in the National Health Insurance Act, even if a medical person who has already established and operated another medical institution actually established and operated the medical institution, or a medical person who established and operated the medical institution under the name of another medical person violates the Medical Service Act, such circumstance alone should not be viewed as refusing the payment of health care benefit on the ground that the medical institution does not constitute “medical institution established under the Medical Service Act,” which is a health care institution that can provide health care benefit under the National Health Insurance Act, or refusing the payment of health care benefit benefit on the ground that the medical institution’s receipt of health care benefit falls under “the act of receiving the health care benefit by fraud or other improper means.”

B. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court reveals the following facts.

1) On June 14, 2013, the Plaintiff obtained permission to establish “○○ △△ Hospital” (hereinafter “instant hospital”) in its name.

2) The Defendant was notified by the investigative agency that “the instant hospital violated Article 33(8) of the Medical Service Act which prohibits double establishment and operation.” Accordingly, on January 29, 2014, the Defendant refused the payment of medical care benefit costs from December 27, 2013 to the Plaintiff on the ground that “the instant hospital was in violation of Article 33(8) of the Medical Service Act, and is not a medical institution established under the Medical Service Act, and thus is not eligible to claim medical care benefit costs” (hereinafter “instant disposition”).

3) Meanwhile, Nonparty 1 was convicted of facts constituting an offense, such as “Nonindicted 2 employed from August 24, 2012 to November 20, 2013, and established △△ Hospital under the name of Nonparty 2. From June 14, 2013 to November 20, 2013, the instant hospital was established under the name of the Plaintiff by employing the Plaintiff. In fact, Nonparty 1 directly invested in each hospital and determined the overall management and decision of the human resources, funds, facilities, and administrative affairs of each hospital, and by exercising the right to purchase medical devices, equipment, etc., and operated several hospitals by acquiring the revenues of each hospital, etc.” (Seoul District Court Decision 2013Da1402, 1435 Decided April 15, 2014). The said judgment became final and conclusive, as is, thereafter.

C. Examining these facts in light of the legal principles as seen earlier, if the Plaintiff, who is qualified and licensed as a medical person, obtained permission to establish the instant hospital in its name under the Medical Service Act, and the instant hospital provided medical care benefits for the treatment of diseases to the insured of the health insurance or patients who are their dependents, and thereafter claimed medical care benefits against the Defendant, the instant hospital cannot refuse the payment of the medical care benefits on the ground that it is a medical institution operated by Nonparty 1 overlappingly.

D. Nevertheless, the lower court determined that the instant disposition rejecting the payment of medical care benefit costs claimed by the Plaintiff was lawful on the grounds that the instant hospital was not a medical institution established and operated lawfully under the Medical Service Act, and thus it was impossible to provide medical care benefits. In so determining, the lower court erred by misapprehending the legal doctrine on medical institutions that can provide medical care benefits under the National Health Insurance Act, thereby adversely affecting

2. Determination as to the legitimacy of the Plaintiff’s motion for intervention by the Intervenor

In order to intervene in a specific litigation case in order to assist one of the parties, there must be an interest in the outcome of the relevant litigation, and the term “interest” refers to legal interest, not in fact, economic or emotional interests, but in legal interests (see, e.g., Supreme Court Decision 2007Da16885, Jun. 28, 2007). The interest asserted by the Plaintiff’s Intervenor cannot be deemed a legal interest in the outcome of the instant lawsuit. Thus, the said application for intervention is unlawful because it does not meet the requirements for intervention.

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s motion to intervene in the case is dismissed, and the costs of lawsuit incurred by the Plaintiff’s motion to intervene are borne by the Intervenor. It is so decided as per Disposition by the assent

Justices Ahn Jae-chul (Presiding Justice)