Open Decision Ledger · Constitutional, administrative & state liability
Health screening centre partnership and full recovery from the name-holder
Supreme Court, June 11, 2020, 2016Du52897 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 부당이득환수처분등취소
Official text on the National Law Information Center
Question
Where a medical corporation running a hospital partnered with a non-medical person to operate the hospital's attached health screening centre, did that breach Article 33(2) of the Medical Service Act, and is recovery under Article 57(1) of the National Health Insurance Act a discretionary act whose full recovery from the name-holder is an abuse of discretion when the listed circumstances are not weighed?
Holding
Yes on both questions. The Court held that a non-medical person opens a medical institution when that person takes the lead in staffing and managing the facilities, the opening report, medical practice, raising funds and the attribution of the operating results, and that a hospital run by a doctor still breaches Article 33(2) when it partners with a non-medical person to run its attached screening centre. Recovery under Article 57(1) is a discretionary act; collecting the whole amount from the name-holder without weighing the listed circumstances is, absent special circumstances, contrary to the principle of proportionality and is likely to be an abuse of discretion.
Points at issue, verbatim
국민건강보험법 제57조 제1항이 정한 부당이득징수가 재량행위인지 여부(적극) / 의료기관의 개설명의인을 상대로 요양급여비용을 징수할 때 고려할 사항 및 이러한 사정을 고려하지 않고 의료기관의 개설명의인을 상대로 요양급여비용 전액을 징수한 경우, 재량권을 일탈·남용한 때에 해당하는지 여부(원칙적 적극)
Unofficial English translation
Whether the collection of unjust enrichment provided in Article 57 (1) of the National Health Insurance Act is a discretionary act (affirmative) / Matters to be considered when collecting medical care benefit costs from the person in whose name a medical institution is established, and whether, where the entire amount of medical care benefit costs has been collected from the person in whose name the medical institution is established without considering such circumstances, it constitutes a case of deviation from or abuse of discretion (affirmative in principle)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Circumstances weighed Read from the decision
요양기관이 실시한 요양급여 내용과 요양급여비용의 액수, 의료기관 개설·운영 과정에서의 개설명의인의 역할과 불법성의 정도, 의료기관 운영성과의 귀속 여부와 개설명의인이 얻은 이익의 정도, 그 밖에 조사에 대한 협조 여부 등의 사정을 고려하지 않고
Unofficial English translation
without considering such circumstances as the content of the medical care benefits provided by the medical care institution and the amount of the medical care benefit costs, the role of the person in whose name the medical institution is established in the course of establishing and operating the medical institution and the degree of illegality, whether the results of the operation of the medical institution are attributable to that person and the degree of the benefit obtained by the person in whose name the medical institution is established, and, in addition, whether cooperation with the investigation was extended
Factors
- 의료법 제33조 제2항이 금지하는 ‘비의료인의 의료기관 개설행위’의 의미
- 병원 자체는 의사가 운영하면서 병원에 부설된 건강검진센터의 운영을 비의료인과 동업한 경우, 위 조항 위반에 해당하는지 여부(적극)
- 국민건강보험법 제57조 제1항이 정한 부당이득징수가 재량행위인지 여부(적극)
- 의료기관의 개설명의인을 상대로 요양급여비용을 징수할 때 고려할 사항
- 이러한 사정을 고려하지 않고 의료기관의 개설명의인을 상대로 요양급여비용 전액을 징수한 경우, 재량권을 일탈·남용한 때에 해당하는지 여부(원칙적 적극)
Unofficial English translation
• The meaning of the "establishment of a medical institution by a non-medical person" prohibited by Article 33 (2) of the Medical Service Act
• Whether it constitutes a violation of that provision where a doctor himself operates the hospital while running a health screening center attached to the hospital in partnership with a non-medical person (affirmative)
• Whether the collection of unjust enrichment provided in Article 57 (1) of the National Health Insurance Act is a discretionary act (affirmative)
• Matters to be considered when collecting medical care benefit costs from the person in whose name a medical institution is established
• Whether, where the entire amount of medical care benefit costs has been collected from the person in whose name the medical institution is established without considering such circumstances, it constitutes a case of deviation from or abuse of discretion (affirmative in principle)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2018. 11. 29. 선고 2018도10779 판결 참조
Unofficial English translation
See Supreme Court Decision 2018Do10779 decided November 29, 2018
Decisions referred to
[1] 대법원 2006. 9. 28. 선고 2006도3750 판결, 대법원 2018. 11. 29. 선고 2018도10779 판결(공2019상, 248) / [2] 대법원 2020. 6. 4. 선고 2015두39996 판결(공2020하, 1367), 헌법재판소 2011. 6. 30. 선고 2010헌바375 전원재판부 결정(헌공177, 943)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What special circumstances allow the full amount of the medical benefits to be recovered from the name-holder without weighing the listed circumstances?
The remand judgment of the Seoul High Court will show how the listed circumstances bear on the scope of recovery from a name-holder. A later decision defining the special circumstances that permit full recovery, or an amendment to Article 57(1) of the National Health Insurance Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 5 (factors), axis 8 (open question and revisit condition).
Axis 5 (Factors): Primary “의료법 제33조 제2항이 금지하는 ‘비의료인의 의료기관 개설행위’의 의미 / 병원 자체는 의사가 운영하면서 병원에 부설된 건강검진센터의 운영을 비의료인과 동업한 경우, 위 조항 위반에 해당하는지 여부(적극) / 국민건강보험법 제57조 제1항이 정한 부당이득징수가 재량행위인지 여부(적극) / 의료기관의 개설명의인을 상대로 요양급여비용을 징수할 때 고려할 사항 / 이러한 사정을 고려하지 않고 의료기관의 개설명의인을 상대로 요양급여비용 전액을 징수한 경우, 재량권을 일탈·남용한 때에 해당하는지 여부(원칙적 적극)” vs Independent “병원 자체는 의사가 운영하면서 병원에 부설된 건강검진센터의 운영을 비의료인과 동업한 경우 / 의료기관의 개설명의인을 상대로 요양급여비용 전액을 징수한 경우”
The primary reading lists five factors, including discretion, the considerations for name-holder recovery, and the illegality test. The independent reading lists only the joint operation and full recovery, so it omits the discretion and weighing factors that are central to the primary reading.
병원 자체는 의사가 운영하면서 병원에 부설된 건강검진센터의 운영을 비의료인과 동업한 경우Axis 8 (Open question and revisit condition): Primary “What special circumstances allow the full amount of the medical benefits to be recovered from the name-holder without weighing the listed circumstances?” vs Independent “What amount of recovery would be proportionate after the relevant circumstances of this institution are examined on remand?”
The primary reading asks what special circumstances would permit full recovery without weighing the listed circumstances. The independent reading asks what amount of recovery would be proportionate after remand fact-finding.
국민건강보험법 제57조 제1항이 정한 부당이득징수가 재량행위인지 여부(적극) / 의료기관의 개설명의인을 상대로 요양급여비용을 징수할 때 고려할 사항 및 이러한 사정을 고려하지 않고 의료기관의 개설명의인을 상대로 요양급여비용 전액을 징수한 경우, 재량권을 일탈·남용한 때에 해당하는지 여부(원칙적 적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 16 August 2016 (2015Nu69258), found as reasonable that the plaintiff, a medical corporation that is a medical care institution under health insurance, had entered a partnership agreement with a non-medical person, A, on the operation of the health screening room, and had divided the operating income in the ratio 2 to the plaintiff and 8 to A. It held that the health screening costs paid to the plaintiff were medical benefits paid to a medical institution opened in partnership by a non-medical person and a medical person, and so were subject to unjust-enrichment recovery.
Supreme Court standard: The Supreme Court found no error in that holding: the reasons disclosed no breach of the rules of logic or experience and no misreading of Article 33(2) and the law on recovery. On recovery, however, Article 57(1) states in its wording that part may be collected, its purpose is to keep the insurance and medical-aid funds sound, and the measure is highly injurious, so it is a discretionary act. Because the court below examined none of the listed circumstances before confirming full recovery from the name-holder, it misapplied the law on incomplete examination, proportionality and abuse of discretion, and the judgment was reversed and remanded; arguments first raised at this stage under Article 106 and other provisions were not lawful grounds of appeal.
Distinguishing conditions
- A hospital whose attached screening centre is run without any partnership with a non-medical person, so that no opening of a medical institution by a non-medical person arises.
- A recovery in which the court has weighed the listed circumstances, so that full recovery stands on that basis.
- An argument under Article 106 and other provisions of the National Health Insurance Act first raised in the Supreme Court.
Record verification notes
Set the partnership agreement and the profit split against the elements the Court gave for opening a medical institution by a non-medical person, that is, who takes the lead in staffing, reporting, practice, funding and the operating results. Then confirm that the abuse of discretion was argued in both instances below, as the Court found here.
From the official text
Points at issue
[1] 의료법 제33조 제2항이 금지하는 ‘비의료인의 의료기관 개설행위’의 의미 및 병원 자체는 의사가 운영하면서 병원에 부설된 건강검진센터의 운영을 비의료인과 동업한 경우, 위 조항 위반에 해당하는지 여부(적극) [2] 국민건강보험법 제57조 제1항이 정한 부당이득징수가 재량행위인지 여부(적극) / 의료기관의 개설명의인을 상대로 요양급여비용을 징수할 때 고려할 사항 및 이러한 사정을 고려하지 않고 의료기관의 개설명의인을 상대로 요양급여비용 전액을 징수한 경우, 재량권을 일탈·남용한 때에 해당하는지 여부(원칙적 적극)
Unofficial English translation
[1] The meaning of the "establishment of a medical institution by a non-medical person" prohibited by Article 33 (2) of the Medical Service Act, and whether it constitutes a violation of that provision where a doctor himself operates the hospital while running a health screening center attached to the hospital in partnership with a non-medical person (affirmative) [2] Whether the collection of unjust enrichment provided in Article 57 (1) of the National Health Insurance Act is a discretionary act (affirmative) / Matters to be considered when collecting medical care benefit costs from the person in whose name a medical institution is established, and whether, where the entire amount of medical care benefit costs has been collected from the person in whose name the medical institution is established without considering such circumstances, it constitutes a case of deviation from or abuse of discretion (affirmative in principle)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 의료법 제33조 제2항 [2] 국민건강보험법 제57조 제1항
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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