Plaintiff 1 and nine others (Attorneys Park Jong-young et al., Counsel for the plaintiff-appellant-appellee)

The Health Insurance Review and Assessment Service (Law Firm Dop, Attorney Cho Yong-hee, Counsel for defendant-appellant)

May 20, 2010

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s disposition date “the date of disposition” in the attached disposition list “the Plaintiff” column for each date indicated in the attached disposition list is revoked, and the disposition that ordered each Plaintiff to confirm that each of the recorded amounts was excessive, and refund it to each of the winners is revoked.

1. Details of the disposition;

A. The Plaintiffs, as medical doctors operating medical care institutions for women in childbed, are medical care institutions under the National Health Insurance Act. On or before March 15, 2009, the Plaintiffs, as indicated in the column for “person with medical care” as indicated in the separate disposition list as indicated in the separate disposition list (hereinafter “person with medical care”), were to conduct a medical examination for each person with medical care, and as part of a fetus’s inspection, were to conduct a non-humane test. At that expense, each of the instant medical care institutions was paid the amount indicated in the column for “person with medical care” as indicated in the separate disposition list (hereinafter “each of the instant amounts”).

B. The Defendant issued a disposition ordering the relevant winners to refund each of the above amounts at the same time on each date of the disposition stated in the “the date of disposition” column of the attached disposition list on the ground that each of the instant amounts received by the Plaintiffs from each of the instant medical professionals does not constitute the expenses under Article 39(1) and Article 41(3) of the National Health Insurance Act, for expenses other than co-payment under Article 39(3) of the National Health Insurance Act, other than co-payment under Article 39(3) of the National Health Insurance Act (hereinafter “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, entry of Gap 1 through 4 (including virtual number) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) The Ministry for Health, Welfare and Family Affairs (the Ministry of Health and Welfare changed to the Ministry for Health, Welfare and Family Affairs on February 29, 2008 pursuant to the revision of the Government Organization Act; hereinafter “the Ministry for Health, Welfare and Family Affairs”), which constitutes a new medical technology, shall retroactively apply to the “detailed matters concerning the criteria and method for the application of medical care benefits” under Article 2009-45 of the notification of the Ministry for Health, Welfare and Family Affairs (the date of enforcement, March 15, 2009; hereinafter “the detailed matters of the instant medical care benefits”) which is subject to medical care benefits, until the time when

(2) After the plaintiffs conducted a stimulative test for each of the instant medical professionals and received the expenses, the detailed contents of the instant medical care benefits were revised favorably. Since such amendment was made based on reflective consideration that the previous criteria, which did not determine the stimulic test for the purposes of the stimulic test, were wrong, the detailed contents of the instant medical care benefits should be based on the relevant statutes in rendering dispositions against the plaintiffs.

(3) Even if viewed otherwise, the Plaintiffs’ act of receiving medical expenses from each of the instant medical professionals is medically inevitable, and the Minister of Health, Welfare and Family Affairs, the competent administrative agency, has long recognized the need for the establishment of a sub-paragraph (a) of the sub-paragraph (b) of the sub-paragraph (i.e., the sub-paragraph (i) of the sub-paragraph (i., the sub-paragraph (i

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1) The definition, etc. of the impractic inspection

(A) In the event of an increase in the number of the hearts of a fetus appearing along the fetus due to the signs of the fetus’s appearance, the 1970s, the method of inspection, which was introduced in Korea since the late 1970s, was easy and widely used as a primary test for the assessment of the fetus.

(B) Specific details on the purpose, adaptation, etc. of the impraculation test are as follows.

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(2) Medical care benefit standards, etc. pursuant to the National Health Insurance Act and subordinate statutes regarding the stimulic test

(A) Prior to March 15, 2009, the detailed contents of the instant medical care benefit were enforced.

① The health insurance benefit act and its relative value points (established by the Ministry of Health and Welfare’s notification No. 2000-67, Dec. 8, 2000; hereinafter the same shall apply) provide for the following medical care benefit standards concerning the examination of fetus, as follows (hereinafter “instant benefit list”):

Part II List of Action Benefits, Commercial Value Points Check and Calculation Guidelines

Paragraph 2 (Examination Fees) Section 3 (Function Test Fees), reproductive, pregnancy and delivery

본문내 포함된 표 분류번호 코드 분류 점수 나-732 ？ 분만전 감시 ？ Intrapartum Maternal and Fetal Monitoring 주 : 1. 「가」와 「나」는 동시에 산정할 수 없다. 2. 정상분만, 둔위분만, 제왕절개술 후 질식분만의 시술시 1회만 산정하되, 질식분만을 위하여 6시간 이상 분만전검사를 실시하였으나, 부득이하여 제왕절개술 및 자궁적출술 또는 제왕절개만출술을 시행한 경우에도 1회 산정한다. 가. 전자태아감시 Electric Fetal Monitoring E7321 (1) 12시간이내 234.14 E7322 (2) 12시간초과 450.00 ？ 나. 일반태아감시 Doppler Fetal Monitoring ？ E7323 (1) 12시간이내 392.60 (2) 12시간초과 E7324 743.57

② Until the detailed contents of the instant medical care benefits were implemented on March 15, 2009, no medical care benefits standards related to the inspection of embryos were available in addition to the list of the instant benefits. There was no method of inspection determined as non-benefit pursuant to Article 39(3) of the National Health Insurance Act.

③ With respect to the impergic test conducted before March 15, 2009, the Defendant recognized the impergic test as medical care benefits only in cases where the impergic test was conducted for the purpose of monitoring the state of the fetus (a fetus’s well-being during the process of delivery) in accordance with the instant wage list on the grounds that the impergic test was conducted for the purpose of monitoring the impergic test (absing the state of the fetus during the process of delivery) and that the impergic test was conducted for the purpose of monitoring the impergic test (absive state of the fetus during the process of the impergic test regardless of its delivery), it was not consistent with the instant wage list, and it was not recognized as medical care benefits.

(B) After March 15, 2009, the detailed contents of the instant medical care benefit were enforced.

① The detailed contents of the instant medical care benefits were set on March 15, 2009, and did not separately stipulate any transitional provisions concerning the acts before the enforcement date.

② The detailed contents of the instant medical care benefits are as follows: (a) in the event that a pregnant 28 or more weeks of pregnancy were provided to a pregnant woman with respect to a non-humane examination, only one time regardless of hospitalization or appearance; and (b) in the event that a medical care institution was conducted more than one time, the entire amount shall be borne by the person himself/herself; and (c) from March 15, 2009, the date of enforcement thereof, the medical care institution was legally entitled to receive the relevant expenses as the medical care benefit cost even if the medical care institution

Ⅰ. Inspection fees for Class II Acts;

In the case of implementation to pregnant women with at least 28 weeks of pregnancy as the criteria for recognition of the Non-Modic Inspection of Non-Modics, included in the head of the Gu, only one time, regardless of appearance, shall be recognized, and in the case of implementation more than one time, the full amount shall be borne by the principal.

(3) The amendment process, etc. of the detailed contents of the instant medical care benefit

(A) The Minister of Health, Welfare and Family Affairs, with respect to a request for the expansion of the benefits to a large number of medical care institutions for the examination of the depression or a recommendation for the revision of the standard of benefits, has taken such a position as a substitute since the response was made to the purport that only the standard set forth in the instant wage list should be applied to the instant medical care benefits, and did not take any other measures such as amending the instant wage list or newly establishing a separate benefit item, which was applied to the examination of the Batia.

(B) On October 13, 2008, the Korean Medical Association filed a petition with the Minister of Health, Welfare and Family Affairs for the establishment of items that are recognized as medical care benefits even in the case that the Korean Medical Association provides the protegic examination for the purpose of monitoring the protegic examination rather than the protegic examination for the protegic examination.

(C) On October 24, 2008, the Minister for Health, Welfare and Family Affairs requested an appraisal of whether the Institute's salary items are adjusted to the Specialized Evaluation Committee on Medical Practice under the Defendant's control.

(D) In light of the previous review results on January 29, 2009, the Medical Service Special Evaluation Committee under the Defendant’s control is required by the High-Risk Medical Examination Committee for the safe division of the mother and fetus, but it is not appropriate to apply the price according to the instant wage list, and thus, it is desirable to newly establish a separate benefit item and set it as medical care benefits.

(E) After February 27, 2009, the Minister for Health, Welfare and Family Affairs revised and announced the detailed medical care benefits of this case on March 10, 2009 through a resolution of the Health Insurance Policy Deliberative Committee.

[Ground of recognition] Facts without dispute, Gap 5, 6, 7 evidence, Eul 1 through 6 (including paper numbers), the purport of the whole pleadings

D. Determination

(1) As to the first argument

In light of the following circumstances, it cannot be deemed that the examination of the visa constitutes “new medical technology, etc.” under Articles 13(1) and 10(1) of the Regulations on the Standards for Medical Care Benefits in National Health Insurance (hereinafter “Rules on Medical Care Benefits”), i.e., a new act not determined as a medical care benefit subject or non-benefit subject. Therefore, this part of the plaintiffs’ assertion on a different premise is without merit without further review.

(A) As seen earlier, with respect to the Non-Voluntary Inspection performed prior to March 15, 2009 when the detailed contents of the instant medical care benefits were enforced, the Defendant has recognized them as medical care benefits if it was performed in accordance with certain requirements for the purpose of monitoring at delivery prior to delivery according to the instant wage list.

(B) In full view of the language and text of the instant wage list and the detailed contents of the instant medical care benefits, and the purpose, adaptation, and methods of the impraculation Inspection, the Defendant’s method of examining whether the instant medical care benefits fall under the medical care benefits of the impraculation Inspection cannot be deemed as going against the contents provided in the instant wage list, or not reflecting the characteristics of the impraculation Inspection’s purpose,

(C) According to Articles 13(1) and (3) of the Health Care Benefit Rules, and Articles 9(1) and 8 of the Criteria for Determination and Coordination of New Health Care Technology (amended by the Ministry of Health and Welfare No. 2009-3, Jan. 13, 2009; hereinafter the same), the Minister of Health, Welfare and Family Affairs shall undergo an evaluation by the Specialized Evaluation Committee, as well as the cases where the Minister determines whether a new health care benefit is eligible for health care benefit for new health care technology, etc., and also adjusts the medical care benefit eligible for health care benefit for the acts already announced and materials for medical care. Thus, the Minister of Health, Welfare and Family Affairs cannot be deemed to have recognized that the instant detailed health care benefit was subject to the evaluation by the Specialized Evaluation Committee for Medical Care Technology when he/she amends and announces the detailed health care benefit of this case. Rather, considering the overall purport of the argument in Gap evidence No. 7, the Minister of Health, Welfare and Family Affairs can recognize the fact that the Special Evaluation Committee for Medical Care Act requests ex officio to adjust the benefit item.

(2) On the second argument

The issue of whether a medical care institution’s medical care act constitutes a medical care benefit subject to the National Health Insurance Act’s relevant statutes shall be determined based on the medical care benefit standards, etc. at the time of the treatment act, not the amended medical care benefit standards, etc., unless there are special circumstances, such as that the amended medical care benefit standards, etc. have a transitional provision

However, there is no dispute that all of the plaintiffs' treatment acts were conducted before March 15, 2009, the enforcement date of the detailed contents of the medical care benefits in this case, and there is no separate transitional provision that applies to the acts before the enforcement date of the detailed contents of the medical care benefits in this case. Therefore, it is reasonable to determine whether the plaintiffs' treatment acts constitute the medical care benefits benefits object not based on the detailed contents of the medical care benefits in this case but on the salary list of this case, which is the medical care benefits standard at

(3) On the third argument

In light of the contents and purport of the National Health Insurance Act’s relevant Acts and subordinate statutes, where a health care institution provides health care benefit to the insured, etc. of the national health insurance and collects such benefit, it must comply with the standards and procedures prescribed by the relevant Acts and subordinate statutes, and no other method is permitted to collect expenses. Thus, where a health care institution collects the expenses from a person who received the health care benefit after providing the health care benefit in breach of the standards and procedures prescribed by the relevant Acts and subordinate statutes, it constitutes “when it receives or causes the insured, etc. to bear the health care benefit from the health care institution by deceit or other improper means” under Article 52 (4) of the National Health Insurance Act or Article 85 (1) 1 of the National Health Insurance Act (see Supreme Court Decisions 2006Du10368, Jun. 15, 2007; 2003Du13434, Oct. 28, 2005). In such case, when the insured, etc. requests the Defendant to confirm whether it is the health care benefit amount, the Defendant may notify the policyholder.

Therefore, even in cases where medical care benefits and medical care benefits are not provided for in the medical care benefits standards and procedures, the plaintiffs asserted that it is justifiable to collect medical care benefits from the patient's side with the patient's consent when such medical care is medically appropriate as in the instant case. However, the health insurance system provides citizens with reasonable and appropriate medical care for diseases, etc.; however, it is possible to destroy the basis of the health insurance system to impose medical care costs on the patient beyond the medical care benefits standards prepared by the Act; and ② Furthermore, medical care institutions with professional knowledge and technology have no knowledge about diseases, etc., with which it is difficult for the patient to agree with the patient's consent; ③ it is impossible to determine whether each individual medical care or medicine is the medical care benefits subject to medical care benefits or the use of medical treatment materials; and ③ it is not easy to distinguish the medical care benefits from the current health insurance system that calculates the relevant expenses. In light of the above, it is difficult to say that the medical care institution's medical treatment and treatment should be conducted and its expenses should not be collected from the insurer.

In addition, as long as the plaintiffs recognized exceptions to the above principles at the time of conducting a stimulative inspection to each of the instant winners, there was no evidence to prove that the Minister of Health and Welfare recognized the necessity of establishing a sub-paragraph (a) as to the stimulative inspection for the long time, or that there was no evidence to prove that the Minister recognized the necessity of establishing a sub-paragraph (a) as to the stimulative inspection by the Minister of Health and Welfare. Even if the Minister of Health and Welfare recognized the necessity of establishing a sub-paragraph (b) for the long time, the defendant's argument over the legitimacy of the disposition ordering the plaintiffs to confirm the excessive personal contributions received from the winners and refund them

Therefore, this part of the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Lee Jong-soo (Presiding Judge)