국민건강보험법 제53조 제1항 제1호 해석 논쟁 고찰 - 사회보장원리의 실천을 중심으로

Abstract

It is a great loss for the people to be restricted from insurance benefits according to the National Health Insurance Act Article 53 Paragraph 1. Especially the people and the professors have dissented the restriction of insurance benefits in case of gross negligence. They have argued that the state’s actions have been deviant from the principle of social security and have criticized the behaviour of the state as administrative opportunism. In Korea there had not been any restriction in early times of legislation. But first in 1976 insurance benefits restriction clause that should limit in that case of a deliberate criminal offence and a deliberate accident had been included in the act. And in 1996 the act has been revised and the parliament has included that in the case of gross negligence criminal offence insurance benefits should be restricted. So the Supreme Court and the Constitutional Court have supported this restriction. But the scholars have opposed these attitudes for they have infringed people’s social basic rights of health insurance benefits. They have told that it can not be found that in the gross negligence case the state has restricted the insurance benefits in the world. The state’s attitudes have not been accordant with ILO Social Security (Minimum Standards) Convention, 1952 (No. 102) too. The object of the National Health Insurance Act is to care the people’s health regardless of gross or slight negligence. There is no reason for the state to exclude the people of negligence from the insurance community. And in the traffic accidents the state should give insurance benefits if the people have not made them intentionally. It is the spirit of this act article 53 paragraph 1 literally as it is. But it is necessary for the legal safety to erase the phrase of ‘gross negligence’ from this article.