의료기관 개설규제 위반에 대한 요양급여비용 환수처분의 이원적 규율

This study examines the efficacy of civil, Medical Act, and National Health Insurance Act enforcement mechanisms in securing effective regulation of medical institution establishment. Among these, the most critical sanctions against prohibited medical institution establishment acts under the Medical Act are the reimbursement provisions under the National Health Insurance Act and the Medical Aid Act. Violating the National Health Insurance Act predicates the establishment of criminal charges under the Criminal Law for fraud, in addition to civil liabilities for unjust enrichment. These regulations serve two purposes: they aim to prevent non-medical personnel from managing medical institutions from the establishment phase to ensure the efficacy of regulations, and to enhance the fiscal soundness of health insurance. However, the Supreme Court has ruled that the reimbursement of healthcare benefits for multi-institution establishment and operation by medical personnel is not unlawful. Moreover, the Court has distinguished between the establishment of medical institutions by non-medical personnel as effectual regulations and the multi-institution establishment and operation by medical personnel as regulatory regulations, thus differently interpreting their legal effects. The stance of the Supreme Court raises questions regarding the acknowledgment of undue profit necessary for the establishment of property crimes such as fraud, the violation of the principle of subsidiarity of criminal law, and the maintenance of instrumental rationality. It also casts doubt on the legitimacy of differential regulatory application between medical and non-medical personnel. Medical institutions established by non-medical personnel, following the due process stipulated by the Medical Law involving notification, permission, and registration, are validly established just as those by medical personnel. Furthermore, if medical services are provided by medical personnel and healthcare benefits are claimed accordingly, there is no qualitative difference from the actions within legally established medical institutions. The interpretation by the Supreme Court, applying dualism and status-based regulations to establishment regulations, exposes the irrationality of legal application, the excessive regulation on the freedom of profession through the establishment of medical institutions, and the obstacles to the integration of non-medical areas such as management and operation of medical institutions.