Earticle

초록

영어

Under the new system of 'Separation of pharmaceutical prescription and dispensing' in Korea, which was implemented in 2000, physician could not dispense a medicine, and outpatient should have a physician's prescription filled at a drugstore. After pharmacist makes up outpatient's prescription, National Health Insurance Service(NHIS) pay for outpatient's medicine to pharmacist, except an outpatient's own medicine charge. And NHIS only pay for outpatient's prescription fee to physician and, physician doesn't derive profit from dispensing medicine in itself. Nevertheless, if physician writes out a prescription with violation of 'Criteria for the Medical Care Benefits', NHIS clawed back the payment of outpatient's prescription and medicine from the physician or the medical institution which the physician belongs to. In the past, NHIS's confiscation was in accordance with 'the National Health Care Insurance Act, Article 52, Clause 1'. But, since 2006 when the Supreme Court declared that there was no legal basis on the NHIS's confiscation of outpatient's medicine payment, NHIS had put in a claim for illegal prescriptions on the basis 'the Korean Civil law, Article 750(tort)'. So, Many medical institutions filed civil actions against NHIS. The key point of this actions was whether the issuing outpatient prescriptions with violations of Criteria for the Medical Care Benefits constitute of the law of tort. On this point, the first trial and the second trial took different position. Finally the Supreme Court acknowledged the constitution of the law of tort in 2013. In this paper, the author will review critically the decision of the Supreme Court, and consider the relativeness between the legal effect of Criteria for the Medical Care Benefits and the constitution of the issuing outpatient prescriptions with violations of Criteria for the Medical Care Benefits as the law of tort.

목차

I. 서론
  1. 원외처방 약제비 소송의 개요
  2. 요양급여기준을 벗어난 원외처방 행위의 위법성 여부
  3. 이 글의 쟁점 및 논의의 순서
 II. 요양급여기준의 법적 성격과 위법성과의 관계
  1. 요양급여기준의 법적 성격과 관련한 논란
  2. 요양급여기준의 내용과 법적 성격
  3. 약 처방에 관한 요양급여기준의 내용과 그 법적 성격
 III. 서울대병원 사건 대법원 판결의 내용과 그 문제점
  1. 대법원 판결의 요지
  2. 대상판결의 문제점
 IV. 결론
 참고문헌
 ABSTRACT

키워드

국민건강보험 요양기관 건강보험심사평가원 건강보험공단 요양급여기준 원외처방전 의약품 허가사항 외 사용 임의비급여 의약분업 강행법규 부당이득 불법행위 National health insurance Medical care institution Health Insurance Review & Assessment Service (HIRA) National Health Insurance Service (NHIS) Criteria for the medical care benefits Outpatient prescriptions Off-label use Unlawful non-reimbursable treatment Separation of dispensing and prescribing function Imperative law Unjust enrichment Tort

저자

• 현두륜 [ Hyun, Dooyoun | 법무법인 세승 대표변호사. ]

참고문헌

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