의료법 제4조 제2항을 위반하여 개설된 의료기관의 국민건강보험법상 요양급여비용 청구에 관한 소고

Abstract

The Supreme Court has recently addressed issues as to whether medical treatment benefits claims under the National Health Insurance Act by medical institutions established in violation of the medical law it can be redeemed as they are not a medical institution capable of claiming such benefits, furthermore silence on such violation constitutes fraud, and ruled that those medical institutions established by non-medical persons were subject to redemption and fraud. However, in cases of medical institutions established by borrowing the name of the medical persons, the Court did not recognized those cases as subject to redemption and fraud. In case of medical institutions established by non-medical persons, as claiming for medical treatment constitutes cheating or other wrongful claim to the National Health Insurance Service, redemption for paid benefits is appropriate under the law. However, application of criminal law should be guided by the principle of complementarity. As there are already redemption measures available under the National Health Insurance Act and criminal punishment available for violation of the medical law for wrongful establishment of medical institutions, applying fraud crime to such claims is against the principle of complementarity. Therefore, it is reasonable under the principle of complementarity for the Court to deny the application of fraud for medical institutions in violation of Article 4 (2) of the Medical Law that have been established by borrowing the name of another medical persons.