보험자대위 및 국민건강보험공단의 구상권 인정범위에 대한 판례 연구 - 대법원 2021. 3. 18. 2018다287935 전원합의체 판결 -

Abstract

In under insurance, if the insured's right to claim against a third party does not reach the insured's amount of damage due to negligence, etc., the insured's right to the third party and the insured's right to a third party acquired by subrogation within the limit of the amount of insurance payable collide a problem arises. In the case of ‘an under insurance that fixes the ratio of indemnification’, the relative theory, and in the case of partial insurance that compensates the entire amount of damage to the extent of the insured amount, the difference theory is a reasonable way to ensure that the insured does not receive excess profits or unfairly infringed on its profits. National Health Insurance Corporation and Labor Welfare Corporation pays expenses to a insured, victim of a accident resulting in injury or death and then asks the assailant for compensation of its share in the expenses. The precedent treated the subrogation of a claim set by National Health Insurance Act the same as that set by Industrial Accident Compensation Insurance Act. And it drew the range of its compensation from the range of deduction, in accordance with the principle of deduction after offsetting and determined the compensation of all expenses borne by the Corporation, within the amount of compensation claimed by the insured(so-called “deduction after consideration of comparative negligence” method). The subject case changed prior Supreme Court decisions to limit to a reasonable extent the scope, the amount corresponding to the perpetrator's liability ratio, of which the Corporation can exercise the right of subrogation. According to the National Health Insurance Act, medical care benefits have a character of ‘an under insurance that fixes the ratio of indemnification’, so it is conclusively reasonable(relative theory). It is significant to change the existing precedent that excessively restricts the rights of health insurance beneficiaries who are victims, but the legal principle of the precedent concerning the legal principle of the precedent following the prinꠓciple of deduction after offsetting should be reconsidered.