A Study on the Evaluation Criteria and Medical Insurance Benefits for Illegal Establishment of Medical Institutions
Authors:   Wonkwang University Legal Research Institute has, Shin Eun Joo 
Published: October 2022

This thesis examines the legal relationship with respect to illegal medical institutions established by non-medical practitioner. Medical practice always involves risks to life and body due to its invasiveness to the human body. Due to these characteristics, the Medical Act allows licensed medical personnel to perform medical activities within the scope of their license. There is a risk that the quality of health care may deteriorate as the medical entity that manages the medical institution is separated from the medical entity that operates the medical institution in order to prevent the occurrence of medical distortion such as excessive treatment for the pursuit of profit. Therefore, in order to prevent this, medical institutions must have non-profit and there are restrictions on the establishment of medical institutions. In other words, the establishment of a medical institution is limited to medical doctors, medical corporations, or non-profit corporations. In case of violation of this rule, the qualifications for medical establishment are strictly limited by the provision of punishment.
Medical institutions established illegally by non-medical practitioner pose a threat to national health, deteriorate the soundness of health insurance finances, and destroy the medical ecosystem. Even if a non-medical practitioner establishes an illegal medical institution, it is difficult to determine whether it is an illegal medical institution because it meets the requirements for establishing qualifications prescribed by the Medical Act. Therefore, in order to judge whether a medical institution is an illegally established medical institution, it should be judged on the basis of its substance. A medical institution can be judged to be an illegally established medical institution when non-medical practitioners are leading the operation of the medical institution and the performance of the operation is attributed to the non-medical practitioners. If an illegally established medical institution receives medical insurance benefits from the National Health Insurance Corporation while operating a medical institution, it is subject to unjust enrichment collection because it has received medical insurance benefits “using deceit or other unfair methods” under Article 57 (1) of the National Health Insurance Act.
In the scope of unjust enrichment collection for medical insurance benefit expenses paid by illegally established medical institutions, some recent judgments have judged the disposition of unjust enrichment collection as a discretionary act. Therefore, it is said that the amount of unjust enrichment to be returned should be calculated in consideration of the attribution of the paid medical care expenses or the realistic ability of the owner of the establishment. However, the unjust enrichment collection system under the National Health Insurance Act is not a disposition to recover unjustly generated gains, but a disposition to restore the original state of expenses that cannot be paid. Since a medical institution established illegally by a non-medical practitioner is not a medical institution that can receive medical insurance benefit expenses under the National Health Insurance Act, unjust benefits must be collected from all medical insurance benefits paid to the medical institution. It is necessary to consider legislation to collect all unjust enrichment from illegal medical institutions established by non-medical practitioner.