Plaintiff (Attorney Kim Jong-soo et al., Counsel for plaintiff-appellant)

National Health Insurance Corporation (Law Firm CEL, Attorneys Kim Young-deok et al., Counsel for the defendant-appellant)

October 10, 2008

Seoul Administrative Court Decision 2004Guhap35066 Decided May 27, 2005

Seoul High Court Decision 2005Nu14044 Delivered on May 2, 2006

Supreme Court Decision 2006Du8419 Decided May 29, 2008

1.On a request made by the trial after remand, the judgment of the first instance shall be modified as follows:

A. The part exceeding KRW 15,074,80 among the disposition of imposition of insurance premiums of KRW 69,825,920 on August 18, 2004; (2) the part exceeding KRW 1,43,480 among the disposition of imposition of insurance premiums of KRW 3,193,260 on September 17, 2004; (3) the part exceeding KRW 2,95,340 on the disposition of imposition of insurance premiums of KRW 2,95,560 on October 18, 204; (4) the part exceeding KRW 1,267,260 on the disposition of imposition of insurance premiums of KRW 3,50 on November 17, 204; and (4) the part exceeding KRW 2,50 on the disposition of insurance premiums of KRW 3,50 on the disposition of imposition of insurance premiums of KRW 205,30 on the disposition of insurance premiums; and (5) the part exceeding KRW 267,2605,2945,29405.

B. The plaintiff's remaining claims are dismissed.

2. 1/3 of the total litigation costs is borne by the Plaintiff, and 2/3 by the Defendant, respectively.

The judgment of the first instance shall be revoked.

The part exceeding KRW 13,965,184 out of the notice of imposition of insurance premiums of KRW 69,825,920 on August 18, 2004; (2) the part exceeding KRW 670,584 out of the notice of imposition of insurance premiums of KRW 3,193,260 on September 17, 2004 (which appears to be a clerical error); (3) the part exceeding KRW 441,208 among the notice of imposition of insurance premiums of KRW 2,95,340 on October 18, 2004; and (4) the part exceeding KRW 2,95,340 on the notice of imposition of insurance premiums of KRW 205,97,97,90 on May 27, 2005; and (4) the part exceeding KRW 605,408,97,97,945,97.

The defendant paid to the plaintiff KRW 148,046,832 and KRW 65,645,152 from January 1, 2005, KRW 30,161,328 from January 1, 2006 to KRW 19,564,464 from January 1, 2007; KRW 16,797,00 from January 1, 2008 to KRW 15,878,880 from August 1, 2008 to the date of a final judgment after remand; and KRW 20% from the next day to the date of a final judgment after remand to the date of a final judgment after remand to the date of a final judgment (the plaintiff was remanded to the court of first instance, and the part of the revocation of the disposition shall be additionally reduced, and the part of the payment shall be added to the amount claimed).

1. Reasons for the disposition and the plaintiff's assertion;

The court's reasoning in this part is as stated in the corresponding column of the judgment of the court of first instance, except for the dismissal or addition of part of the reasoning of the judgment of the court of first instance as follows. Thus, it is citing it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Supplementary Use]

(1) Each disposition of this case is unlawful, and each disposition of this case shall be revoked, and among the total amount of premiums paid from around August 2001 to May 2008 by the Plaintiff from around May 2008, 148,046,832 won (i.e., KRW 185,05,058,540 to KRW 4/5) equivalent to the amount of premiums to be borne by four joint business operators except the Plaintiff, and damages for delay shall be refunded to the Plaintiff.

(2) From 17th to 19th of the fourth place of business, the phrase “on the basis of the monthly amount of remuneration for a joint entrepreneur,” without considering the income of each individual workplace (Attorney's Office), shall be construed as “on the basis of only the business income data reported to the pertinent joint legal office.”

[Supplementary Parts]

The third part of the 11st part of the 3rd part of the 11st part of the 11st part of the 3rd part of the 11st part of the 3rd part of the 11st part of the 201th part of the 201st part of the 204th part of the 196th part of the 2nd part of the 3th part of the 204 part

2. Whether the instant disposition is lawful

The court's reasoning in this part is as stated in the corresponding column of the reasoning of the judgment of the court of first instance except for the dismissal or addition of part of the reasoning of the judgment of the court of first instance as follows. Thus, the court's reasoning is cited by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Supplementary or added parts]

(1) The 5th page “(5)” was used as “the imposition details of the disposition are as follows,” and the following is added thereto:

① The insurance premium amount of 69,825,920 won from August 18, 2004; the plaintiff, non-party 2, 3, and 4 from June 1, 2001; the non-party 5 from June 1, 2001 to November 7, 2002; the non-party 6 from February 1, 2003 to the status of employment provided policyholders; and the non-party 3, the plaintiff, non-party 2, 4, and 3 are the insurance premium amount of 14,141,060 won; the non-party 5, the non-party 5's total amount of the insurance premium amount of 14,00 won (the non-party 5's total amount of the insurance premium amount of 14,060 won; the non-party 3, the non-party 4, the non-party 2, the non-party 96, the non-party 289, the total amount of the insurance premium amount of 208.

② The total amount of KRW 3,193,260 for the insurance premium payment notice issued on September 17, 2004 and KRW 446,260 for each insurance premium of the Plaintiff, Nonparty 2, 4, and 3, Nonparty 6, Nonparty 6’s insurance premium of KRW 421,00, and Nonparty 1, etc., a joint business proprietor.

③ On October 18, 2004, KRW 2,955,340, each of the premium payments notice issued by the Plaintiff, Nonparty 2, 4, and 3, who is a joint business proprietor, KRW 446,260, respectively, and KRW 421,00 of the premium paid by Nonparty 6, and KRW 749,30 of the premium paid by 12 workers, including Nonparty 1.

④ On November 17, 2004, KRW 3,027,040, each of the premiums paid in KRW 446,260 for the Plaintiff, Nonparty 2, 4, and 3, who is a joint business proprietor, and KRW 446,260 for each of the premiums of KRW 421,00 for Nonparty 6, and KRW 821,00 for the premiums of 12 workers, including Nonparty 1, who is a joint business proprietor.

⑤ The total amount of KRW 2,895,220 on December 17, 2004, the insurance premium payment notice of KRW 2,895,220 for the Plaintiff, Nonparty 2, 4, and 3, each of the insurance premium of KRW 446,260, Nonparty 6’s insurance premium of KRW 421,00, and Nonparty 1, etc., a joint business proprietor, shall be 689,180, respectively.

⑥ The aggregate amount of KRW 2,895,00 on January 19, 2005, the insurance premium payment notice of KRW 2,895,00 for the plaintiff, the non-party 2, the non-party 4, the non-party 3's insurance premium of KRW 456,860, the non-party 6's insurance premium of KRW 431,00, the non-party 1, etc., who is a joint business proprietor.

7) The total amount of KRW 2,895,00 on March 19, 2005, the insurance premium payment notice of KRW 2,895,00 for the plaintiff, the non-party 2, the non-party 4, the non-party 3's insurance premium of KRW 456,860, the non-party 6's insurance premium of KRW 431,00, and the non-party 1, etc., who is a joint business proprietor

8) The aggregate amount of KRW 3,259,220 of the premium payment notice issued on April 18, 2005 and KRW 456,860, respectively, for the Plaintiff, Nonparty 2, 4, and 3 who is a joint business proprietor, and KRW 456,860, respectively, for the insurance premium of Nonparty 6, KRW 431,000, and KRW 1,000,780 of the insurance premium of Nonparty 1, etc.

(2) On the other hand, the Plaintiff, Nonparty 2, 3, 4, and 6, who is a joint proprietor of the joint law office of this case, filed a report on the closure of business as of June 30, 2005 when the litigation of this case was pending, and the Defendant imposed and notified only the insurance premium on the joint law office of this case.

(3) Part 6 (Reasons for Recognition) Nos. 11 to 3, 8, 9, 47 through 49, and 13-1 through 5, respectively, shall be added to column A 11.

C. Determination

(1) Determination as to the ground for revocation of the instant disposition

(A) Whether the instant disposition is invalid as a correction or correction of the previous disposition on imposition of insurance premiums

According to the above facts, the defendant, around June 2004, issued a regular guidance to the joint legal office of this case, five attorneys including the plaintiff, etc. as a joint user of the joint legal office of this case, but at the time of imposing the previous insurance premium to the employment provided policyholders of the joint legal office of this case, the defendant confirmed that the individual insurance premium of the above joint users was imposed only on the insurance premium of the employees without omission, and made a disposition to require the plaintiff to pay the insurance premium from August 2001 to August 2004 without omission (the part of the previous disposition of this case), and the previous disposition to impose the insurance premium was issued prior to the imposition of the insurance premium of the employment provided policyholders of the joint legal office of this case. Since the above part of the disposition of this case concerns the insurance premium of the joint owners of the employment provided policyholders, it is a separate disposition from the previous disposition to impose the insurance premium, the plaintiff's assertion that it is unlawful as a correction or correction of the previous insurance premium is without merit

(B) Whether the joint legal office of this case and the Plaintiff’s individual legal office are one place of business

According to the law, the term "workplace" refers to a place of business or an office (Article 3 subparag. 3), workers and employers of all places of business are employer-provided policyholders (Article 6(2)), "workers" means those who live on remunerations in return for their work regardless of the type of occupation (including directors or other officers of a corporation), excluding public officials and school employees under the provisions of subparagraphs 4 and 5 (Article 3 subparag. 1), and employers mean the business owner, etc. of the place of business to which the relevant worker belongs (Article 3 subparag. 2(a)). In light of the fact that Article 3 subparag. 2(a) provides that the term "workplace" refers to the business owner, etc. of the place of business to which the relevant worker belongs (Article 3 subparag. 3), and refers to the place of business or an office as a business unit engaged in a certain business activity after having

The Plaintiff’s assertion that the instant joint law office and the Plaintiff’s individual law office jointly operated by five joint business operators, including the Plaintiff, constitute one business establishment solely on the ground that they were judged to be a separate business establishment, in light of the fact that although the business location is the same, each of them was registered separately, employees was also two separate business income and reported separately, etc., the Plaintiff’s assertion that the instant joint law office and the Plaintiff’s individual law office fall under one business establishment cannot be accepted.

(C) Whether the joint owner is jointly and severally liable for health insurance premiums

1) In order to hold a joint and several liability for another person’s obligation, it shall be limited to cases where there are special provisions in the law or where there are special circumstances such as that the obligation falls under an indivisible obligation due to its nature, and whether the pertinent legal provisions provide a joint and several liability for the obligation of another person is related to guaranteeing the property rights of the people

Based on these legal principles, the National Health Insurance Act (amended by Act No. 8034, Oct. 4, 2006; hereinafter the same) provides that workers and employers of all workplace shall become employer-provided policyholders (the main sentence of Article 6(2)); however, Article 68(1) provides that employers shall pay the monthly insurance premium to be borne by the employer-provided policyholders from their remunerations (Article 68(3)). Meanwhile, if employers are liable to pay the insurance premium of the employee insured, it can be said that such deduction system can not be established for the common use of the employee insured even if remuneration is not paid under the relevant provisions. The Health Insurance Act provides that all the self-employed policyholders of the household to which the employee insured belongs shall be jointly and severally liable for the payment of the insurance premium of the employee insured. However, in light of the fact that the said employers are not jointly and severally liable for the payment of the insurance premium of the employee insured and the fact that the said employers are not jointly and severally liable for the payment of the insurance premium of the employee insured, the Supreme Court held that each of the employee insured can be jointly and severally liable for the employee insured.

Thus, the disposition of this case that allowed five individuals, including the plaintiff, who are joint users of the joint law office of this case, to pay all of the insurance fees of the plaintiff, is unlawful as to the part exceeding the part that the plaintiff is liable to pay.

2) Whether the Plaintiff should bear the health insurance fee for the employees of the joint law office

On the other hand, unlike individual health insurance premiums, the health insurance premiums of workers belonging to the joint users bear the responsibility of the employer. This is borne by the employer in the position of the business owner who operates the relevant business, and considering the fact that the health insurance is compulsory insurance, it is reasonable to view that the health insurance premiums of workers are indivisible obligations among joint users.

(D) Plaintiff’s insurance premium charges

Of the instant disposition, the Plaintiff’s insurance premium to be borne by the Plaintiff shall be the sum of the Plaintiff’s insurance premium to be borne by the joint business owner of the joint law office as well as the Plaintiff’s insurance premium to the employees of the joint law office of this case as follows.

① Of the amount of KRW 69,825,920 on August 18, 2004, the Plaintiff himself/herself from August 2001 to August 2004, the amount of insurance premium of KRW 14,141,060 and the workers belonging to the joint law office of KRW 933,740 on a total of KRW 15,074,80 on a premium, from August 18, 2004.

② Of the amount of insurance premium paid by September 17, 2004, KRW 3,193,260, 14 workers, including the Plaintiff himself/herself, KRW 446,260, and Nonparty 1, etc., KRW 987,220, total amount of insurance premium, KRW 1,43,480.

③ 12 workers, including the Plaintiff’s insurance premium of KRW 446,260, and Nonparty 1, etc., among the amount of insurance premium payment notified as of October 18, 2004 KRW 2,955,340,00 in total, KRW 1,195,560 in total.

④ 12 workers, including the Plaintiff’s insurance premium of KRW 446,260 and Nonparty 1, etc., among the amount of KRW 3,027,040 on November 17, 2004, KRW 1,267,260 on the aggregate of KRW 821,00 on the insurance premium of the Plaintiff himself/herself and KRW 1,267,260

⑤ 11 workers, such as the Plaintiff’s insurance premium of KRW 446,260, and Nonparty 1, among the 2,895,220, which was notified of the payment of the insurance premium of December 17, 2004, including KRW 689,180, total insurance premium of KRW 1,135,440.

[6,560 won in total, 1,093,420 won in total, nine workers, such as the plaintiff himself/herself's insurance premium of KRW 456,860, and non-party 1, etc., among the amount of insurance premium of KRW 2,895,00 in January 19, 2005.

7) Among the amount of insurance premium of KRW 2,895,00 on March 19, 2005, the amount of KRW 456,860 on the Plaintiff’s insurance premium of KRW 456,860 on the Plaintiff’s insurance premium of KRW 636,560 on the part of Nonparty 1, and KRW 1,093,420 on the aggregate

8) Among the amount of insurance premium paid in April 18, 2005, KRW 3,259,220, the amount of insurance premium paid in KRW 456,860 of the Plaintiff himself/herself and KRW 1,00,780 in total, KRW 1,457,640 in the amount of insurance premium paid in KRW 3,259,220.

(e) Sub-committee

Therefore, the part of the disposition of this case, which exceeds the aggregate of the Plaintiff’s insurance premiums and the insurance premiums for the employees of the joint law office of this case, should be revoked in its entirety.

(2) Determination on a claim for restitution of unjust enrichment by mistake

Under the premise that the disposition of this case was partially cancelled, it is difficult for the plaintiff to claim the return of unjust enrichment of KRW 73,034,38,38, which is the amount equivalent to 4/5 of the total amount of insurance premium paid from August 2001 to May 2008 ( KRW 148,05,058,540, KRW 1840,540, KRW 24/5). In this case, the plaintiff's claim for return of unjust enrichment of KRW 73,034,38,38, which is the part of the disposition of this case, is erroneous, and it cannot be viewed that the disposition of this case is still cancelled or finalized. Thus, since the plaintiff's claim for return of unjust enrichment of KRW 25,00,00, KRW 75,012,444, KRW 73,038, which is the part of the disposition of this case, it cannot be viewed that the defendant's claim for return of unjust enrichment of this case can not be justified.

4. Conclusion

Therefore, the plaintiff's lawsuit on the claim for restitution of unjust enrichment among the claims in this case shall be dismissed, and the claim for cancellation of the notice of payment of premiums shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. The judgment of the court of first instance shall be modified according to the changed claim in the court after the remand and

Judges Kim Jong-ho (Presiding Judge)