집행정지 기간 동안의 이득 제한에 관한 법률적 분석 - 이른바 환수·환급법 사안을 중심으로 -

The revised National Health Insurance Act, which allows pharmaceutical companies to recover profits earned during the suspension of execution period related to drug price cuts, came into effect on November 23, 2023. This system was introduced for the purpose of financial soundness of health insurance, but there are opposing opinions that it may infringe upon the right to seek trial and degrade the suspension of execution system, so controversy continues even after its introduction. The system was established for the purpose of ensuring the effectiveness of sanctions, and in the case of drug price reductions, its legal nature can be seen as similar to the withdrawal of subsidies. According to the attitude of precedents regarding the relationship between the judgment and the suspension of execution, the profits obtained by the pharmaceutical company during the suspension period cannot be considered unjust enrichment or torts just because the plaintiff lost the case as long as the suspension of execution remains in effect. In addition, drug price reductions cannot be considered sanctions, except in the case of rebates, and filing a suspension of execution is not an abuse. The system needs theoretical improvements, but there is a need to put a stop to pharmaceutical companies gaining unexpected benefits. Accordingly, the court needs to be cautious when deciding to suspend execution, and there is a need to introduce a suspension of execution system by providing collateral. It is very important to have theoretical consistency because the operation of a system with a policy purpose inevitably limits the interests of stakeholders. There is also a need for theoretical consistency in relation to drug price reductions.