실손의료보험의 법적 성격과 실무상 쟁점에 대한 고찰 - 본인부담금 상한제 관련 약관상 보상책임을 중심으로 -

Abstract

Actual expense medical insurance can be said to be the “second health insurance” that compensates for medical expenses actually borne by the insured among medical expenses incurred when the insured receives treatment at a medical institution due to illness or injury. In line with the effectiveness of such loss medical insurance, there are also a wide variety of issues and practical disputes surrounding it, especially in recent years, disputes related to the self-burden ceiling to be dealt with in this paper. Depending on the patient's income level, the National Health Insurance Service returns the excess amount to the subscriber through pre-payments and post-refund if the health insurance's self-payment exceeds the upper limit for each individual. In particular, disputes arose frequently over what would be the liability for compensation in indemnity medical insurance before October 2009, when post-refund was not stipulated as an exemption. In this regard, the Supreme Court's recent ruling on 2022da304332 on March 30, 2023 (the Seoul Central District Court's ruling on November 15, 2022na77212) does not constitute an insurance accident, that is, an out-of-pocket cost, regardless of the timing of implementation of the out-of-pocket limit system. Nevertheless, there is still controversy over whether the upper limit can be deducted before or after the revision of the terms and conditions, whether the terms and conditions stipulated after October 2009 are unfairly disadvantageous to the customer, and whether the terms and conditions are subject to explanation. Above all, it will be a key issue in determining the liability for compensation for practical issues, including post-refunds, depending on whether the nature of loss medical insurance is considered personal insurance, non-life insurance, or both. In consideration of this, we would like to analyze the lower court's ruling, including the Supreme Court's ruling on the self-burden ceiling, review various issues derived here and recent issues related to the liability for compensation of loss medical insurance, and consider the responsibility for compensation and improvement.