국민건강보험법에 따른 보험급여를 받은 피해자가 가해자를 상대로 구할 수 있는 치료비 손해배상채권액의 범위

Abstract

A victim who has suffered loss as a result of another person’s wrongdoing seeks compensation for his or her injuries against the perpetrator by means of filing of a damages claim. However, there are a few other methods whereby the victim can get compensated for his or her loss. The victim may either receive insurance money directly from the insurer or be entitled to insurance benefits from various social security schemes established by the state. Sometimes the victim claims directly against the offender’s liability insurer to have his or her loss compensated. In circumstances like this where the victim has recovered the loss by means other than a direct claim for damages against the offender, whether such circumstances must be taken into consideration in estimating the amount of damages recoverable against the offender and, if so, to what extent such circumstances should be considered, are the disputes frequently encountered in practice. In particular, in a case where the victim was partly liable for the accident, by which the amount recoverable against the offender is limited, the outcome of such disputes may be of particular interest to the victim, as it is directly concerned with the amount of damages recoverable by the victim. At dispute in the subject case was the method of determining the amount of a damages claim for medical expenses sought against the offender by the victim who received insurance benefits pursuant to the National Health Insurance Act. Previously the Supreme Court determined that where the National Health Insurance Service disburses insurance benefits to the victim and exercises the right of subrogation to file a claim for compensation of medical expenses incurred thus far pursuant to Article 58(1) of the National Health Insurance Act, the extent to which the National Health Insurance Service (NHIS) can exercise the right of subrogation is the full amount of insurance benefits the NHIS covered to the extent of the offender’s liability, and the amount claimable by the victim against the offender is reduced by that much. Accordingly, the Supreme Court has concluded that in circumstances where the victim who received insurance benefits under the National Health Insurance Service Act files a claim for damages against the offender and the victim’s negligence contributed to the occurrence of the damage, the court determining the amount of compensation for medical expenses incurred thus far must first apportion the liability of the victim in the total medical expenses incurred thus far and deduct the full amount of the payment made by the NHIS (so-called “deduction after consideration of comparative negligence” method). This Supreme Court’s decision was criticized for the failure to pay enough heed to the nature of the national health insurance scheme designed as a social security mechanism and the possibility of inequitable outcomes between cases where the eligible recipient was fully liable for the accident, which results in the eligible recipient’s enjoyment of the benefit of being compensated for the injury to the extent covered by the NHIS, and cases where a third party’s wrongdoing appeared in conjunction with the liability of the eligible recipient, in which the NHIS is granted the preferential right and as a result of which the victim becomes wholly responsible for the payment of medical expenses arising from the negligence on the part of the victim. Comprehensively considering (i) the language and text of Article 58 of the National Health Insurance Act and its legislative purport; (ii) the purpose of the national health insurance system and its nature as a social security mechanism; (iii) the need to establish a balance in legal status a person eligible for insurance benefits could have enjoyed had there been no wrongdoing and a balancing of interests; and (iv) the nature of the right to receive insurance benefits, the Supreme Court determined as follows: (a) in a case where the NHIS paid insurance benefits to the victim of the wrongdoing and exercises the right of subrogation to claim medical expenses incurred thus far against the offender on behalf of the victim, the extent to which the NHIS can enforce the victim’s claim for damages is limited to the amount corresponding to the offender’s share of liability, as opposed to the full amount covered by the NHIS to the extent of the amount of the damages the offender is liable for; and (b) the NHIS may not exercise the right of subrogation to claim the remaining amount (the amount corresponding to the victim’s share of negligence among the amount covered by the NHIS) on behalf of the victim, and the NHIS is ultimately responsible for the remaining amount for the victim who is not compensated for his or her injury even after having been paid insurance benefits. That said, the Supreme Court changed prior precedents by stating that in a situation where the victim who received insurance benefits in accordance with the National Health Insurance Act files a claim for damages against the offender and the victim has contributed to the occurrence of the injury by negligence, the amount of damages claim filed by the victim in relation to medical expenses incurred thus far must be calculated by the method of “deduction before consideration of comparative negligence.” As above, the subject case changed prior Supreme Court decisions to limit to a reasonable extent the scope of which the NHIS　can exercise the right of subrogation so that the person eligible for insurance benefits could be compensated for the loss that was not covered under prior rulings. The subject case attempted to achieve a harmonious balance both between the characteristics of health insurance as a property right and a social security mechanism and between the insurer and the person eligible for insurance benefits.