암보험 약관 해석에 관한 비교 연구 - 갑상선암에서 림프절 전이를 중심으로 -

Abstract

This article addresses the issue of whether metastatic cancer to lymph nodes from thyroid cancer falls under the criteria for the payment of general cancer insurance benefits, specifically focusing on the provisions of cancer insurance policies and the standards for insurance payments set by insurance companies. There is a difference in interpretation between insurance companies and policyholders regarding the criteria for paying insurance benefits when cancer originating as a “similar cancer” metastasizes into a “general cancer.” Insurance companies tend to classify cancers such as thyroid cancer and skin cancer as “similar cancers,” paying less insurance benefits compared to general cancers, leading to ongoing disputes when cancer cells originating from a similar cancer metastasize into general cancer. Therefore, in Chapter II of this article, the distinction between cancer in medical treatment and cancer in insurance terms is examined, followed by a comparative review of cancer diagnostic criteria in Korea and the U.S. in insurance policies. In Chapter III, after reviewing the decisions of the Financial Dispute Mediation Committee, we compare and review the ‘duty of explanation of the insurer’ and the ‘principle of interpretation against the drafter’ applied in these decisions, offering the following suggestions for improvement on this issue. The first issue concerns the cancer diagnostic criteria in insurance policies. The differences in cancer diagnostic criteria between Korea and the U.S. primarily arise in the necessity of pathological diagnosis, the role of imaging diagnosis, the handling of borderline lesions, and legal interpretation. There are also differences in the definition and criteria for insurance payments in the insurance policies of both countries. While Korea tends to apply clearer legal standards and pathological tests to minimize disputes, the U.S. adopts a more flexible approach, emphasizing the interests of the patient as the policyholder and medical necessity. Ultimately, the U.S.’s approach of applying flexible criteria with a focus on the patient’s interests and medical necessity seems to be the best way to protect insurance consumers. However, considering the realities of Korea’s insurance policies and medical conditions, it is necessary to specify more clearly the exception clause ‘when pathological diagnosis is not possible’ in future revisions of cancer insurance policies. The second issue concerns the duty of explanation of the insurer. It is reasonable to consider the ‘primary site-based policy’ as a subject of the insurer’s duty of explanation for the following reasons. First, the ‘primary site-based policy’ is important not only in cases of lymph node metastasis from thyroid cancer but also when general cancers, such as stomach cancer, metastasize to other major cancers, such as brain cancer, pancreatic cancer, or blood cancer. Second, according to the ‘primary site-based policy,’ if the primary site of the cancer is the thyroid or skin, the cost of cancer treatment is excluded from insurance coverage, and only a small amount of insurance money for the primary cancer is paid to the policyholder. This clause implies that it is difficult for the average insurance consumer, who is the policyholder, to fully anticipate the meaning of the ‘primary site-based policy’ without a separate explanation from the insurance company. Third, according to most court precedents in Korea, the ‘primary site-based policy’ is deemed a significant part of the insurance contract. Fourth, U.S. precedents also stipulate that ambiguities in insurance policies should be interpreted in favor of the policyholder, and the insurer must actively ensure that the policyholder understands the scope of coverage. Ultimately, since the ‘primary site-based policy’ is a crucial content directly related to insurance payments, the duty of explanation by the insurer should be a critical factor, and in cases where this duty is not fulfilled, it would be desirable for courts to rule in favor of the policyholder in insurance payment disputes to protect insurance consumers. The final issue is related to the principle of interpretation against the drafter. In cases of insurance payment disputes involving metastasis of thyroid cancer to lymph nodes, the application of the ‘principle of interpretation against the drafter’ has led to inconsistent judgments depending on the court in Korea, resulting in continued similar disputes. The reasoning behind recognizing the principle of interpretation against the drafter is deemed more beneficial for the following reasons. First, since the insurance company used ambiguous language in the cancer insurance policy, leading to two possible interpretations regarding the payment of insurance for primary and metastatic cancers, the principle of interpretation against the drafter should apply. According to U.S. precedents, when the provisions of an insurance policy are unclear or ambiguous, the principle of interpretation against the drafter is also applied. Furthermore, both Korean and U.S. precedents state that if an insurance company wishes to exclude certain medical treatments, such as internal or surgical medical procedures, from coverage, it must include an exemption clause in the cancer insurance policy. Therefore, if there is no exemption clause in the relevant cancer insurance policy, it would be a reasonable interpretation for the insurance company to pay additional insurance for lymph node metastasis cancer separately from the thyroid cancer insurance payment.