국민건강보험법 제58조 제1항에 의한 국민건강보험공단의 제3자에 대한 대위 범위 - 대법원 2021. 3. 18. 선고 2018다 287935 전원합의체 판결을 중심으로 -

Abstract

In the case of the insurance accident caused by the third party's illegal act and the victim’s negligence, the Korean Supreme Court previously prioritized the subrogation right of National Health Insurance Service (NHIS) by deciding that the scope of NHIS’ subrogation was the full cost of insurance benefits covered by NHIS. However, the Supreme Court Decision 2018DA287935 Decided April 18, 2021, the study subject judgment, changed the previous precedent and ruled that the scope of NHIS’ subrogation is limited to the proportion of the perpetrator’s liability, not the total amount of insurance. Health insurance rights are not only a basic social right guaranteed by the Constitution, but also belong to property rights, which can only be exceptionally limited to achieving the purpose of public welfare. Therefore, limiting or reducing the right to receive health insurance without the express provision is likely to violate the Constitution. Meanwhile, under the National Health Insurance Act(NHIA), the insurance benefit has the nature of being paid against insurance premiums paid by subscribers, and insurance finance typically consists of insurance premiums paid by insurance policy holders. As such, the National Health Insurance is basically operated according to insurance principles, so it is only reasonable to recognize the scope of NHIS’ subrogation under Article 58 (1) of NHIA to the extent that it does not infringe on the rights of beneficiaries. In addition, according to the article 53 (1) of NHIA, in the case of a criminal act caused by an insured’s negligence, the insurance shall be paid in full. It is because the possibility of criticism is not high enough to harm the interests of the insurance community, and it also does not contradict insurance principles that require accidental occurrence. If so, just as an insurance accident caused by the total negligence of the beneficiary, it is fair to interpret that a beneficiary can enjoy all insurance benefits in case the insured is at fault for the harm done by a third party. This is because, compared to insurance accidents caused by the total negligence of the beneficiary, the latter can be seen as far more accidental and far less criticism of the beneficiary. Therefore, regarding the scope of subrogation of NHIS under Article 58 (1) of NHIA, the majority opinion were reasonable, which determined to be "the amount equivalent to the percentage of the perpetrator’s responsibility, not the full amount of insurance benefit paid by NHIS.