비의료인 개설 의료기관(‘이른바 사무장병원’)에 대한 국민건강보험법상 부당이득징수 처분

Under the National Health Insurance Act, the requirements for collection of unjust enrichment or unjust profit are very abstract in that they are defined as the costs of health care benefits (insurance money) received by “fraud or other improper means.” In the past, the Korean Supreme Court has tended to judge that if there is a violation of not only the National Health Insurance Act, but also other laws such as the Medical Act, it falls under the requirements of “fraud or other improper means” without developing any logic. One of the examples is the case of institutions established and operated by a person ineligible to establish the institution (non-medical personnel). Meanwhile, under the National Health Insurance Act, there has been confusion in judgements of courts as to whether the collection of unjust enrichment or unjust profit is discretionary or not. In the recent case for violating the provisions on prohibition of opening more than one institution under the Medical Act, the Supreme Court ruled that collection of unjust enrichment or unjust profit should be independently determined in consideration of the purpose of the National Health Insurance Act in that the purpose of the National Health Insurance Act is different from that of the Medical Act. In this case, whether the claim for the costs of health care benefits by a medical institution established and operated by a disqualified person constitutes “fraud or other improper means” was questioned again, and the nature of the unjust profit collection and the legality of the full collection became an issue. In this ruling, the Supreme Court concluded that a medical institution established by a person who could not open a medical institution corresponds to a health care institution that is the other party to the unjust profit collection, and the claim for the costs of health care benefits by such medical institution constitutes “fraud or other improper means.” In addition, under the National Health Insurance Act, the authority has the discretionary power regarding the scope of the collection of unjust enrichment or unjust profit. Furthermore, the Supreme Court determined that collecting the full amount of the costs of health care benefits from a medical personnel who opened a medical institution operated by a non-medical personnel, without considering the following circumstances: the contents of health care benefits and the amount of the costs of health care benefit; the role and degree of illegality of the medical personnel in the process of opening and operating the institution; the degree of profits obtained by the medical personnel; and cooperation to the investigations, is contrary to the principle of proportionality and amounts to the abuse or misuse of discretionary power, barring special circumstances. This is part of efforts to reduce unreasonable consequences under Korea’s unique system of not paying the costs of health care benefits to the institutions established and operated by a person ineligible to establish a medical institution (non-medical personnel). The subject case was followed by the decision, which determined that the collection of the full amount of the costs of heal care benefits from a non-medical personnel is contrary to the principle of proportionality and corresponds to the abuse or misuse of discretionary power (Supreme Court Decision 2018Du44838 decided Jul. 9, 2020) This judgment is expected to serve as an important guideline for general factors to be considered with respect to the unjust profit collection under the National Health Insurance Act.