건강보험공단의 구상권 행사범위 제한이 피해자 및 민영보험회사 등 이해관계자에 미치는 영향에 관한 연구

Abstract

While the commercial law, as well as the laws related to public insurance schemes, explicitly stipulates the insurer's right of subrogation or indemnity, they are silent on how to define the scope of such right. And this has led to numerous disputes between insurers and the insured (or the injured). When it comes to the court's interpretation on the scope of subrogation under the law for the government-run health insurance scheme, the Supreme Court's En Banc Ruling on March 18, 2021 made a shift from the long-standing method of "making a deduction after applying the comparative negligence approach" to another method of "applying the comparative negligence approach after making a deduction." The former puts the right of the insurer before that of the insured, and the latter aims for a proportional balance between the two parties. This study reviewed the purpose of the insurer's subrogation, the effectiveness of insurance under different academic theories, and the Supreme Court's past rulings, and based on this review, concludes that the Supreme Court's March 2021 En Banc ruling to reduce the scope of subrogation for the National Health Insurance Service (NHIS) has many justifications and makes a valid sense. The study goes further to assess this ruling's other repercussions on private insurers, the insured, and the injured under liability insurance or private health insurance contracts. In terms of the liability insurance contract, this study suggests that the injured should be more compensated as much as the scope of indemnity for the NHIS is reduced. In a case where the right of indemnity for the NHIS competes with the injured's right to make a direct claim against an insurer, the latter should prevail over the former. The study further suggests that a subrogation clause be added into the standard terms and conditions for the private health insurance contract to address the subsequent side effects from the Supreme Court's March 2021 En Banc ruling, such as double compensation to the insured or exemption from liability for a third party.