손해배상금 대불제도에 관한 고찰 : 헌법재판소 2022. 7. 21. 선고 2018헌바504 결정을 중심으로

Abstract

The healthcare system is constantly changing. The unique nature of medical procedures and the characteristics of modern society have led to an increase in medical disputes, along with a rise in the costs incurred from dispute resolution. In response to these challenges, the system of advances for damages was introduced in Korea to ensure prompt compensation for victims of medical accidents and establish a stable environment for healthcare providers. The Constitutional Court’s 2018 Hun-Ba 504, which was decided on July 21, 2022, calls for a legislative revision by December 31, 2023, particularly of Article 47, Section 2, subparagraph of the ‘Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes’. This article underlies the governance of the advance system, yet it was found nonconformant to the constitution. The sustainability of the aforementioned system depends on how reserved funds are managed within the framework of fundraising―advance for damage―indemnity―deficit disposal. The average indemnity rate has been around 8.3% since the introduction of the system, indicating that the funds are unstable in the short or long term. Initially, additional fee collection was expected to be minimal when the system was introduced. However, if regular and long-term additional fee collection is not implemented, the system would inevitably be abolished. This study presents three potential solutions to these challenges, with a view to enhancing the system’s sustainability: narrowing the scope of those eligible for advances for damages, setting a cap on advance amounts, and abolishing the system and instead promoting mandatory medical indemnity insurance. This study shed light on the entire system by examining the decisions made regarding the provisions of the system and identifying problems that have arisen during its implementation. Considering the need for legal revisions in the system, this study identified issues and provided solutions on the basis of the circumstances surrounding system operation. The results are also expected to be useful in enhancing the system’s sustainability during future legislative amendments. Despite these contributions, however, this research is limited in that there remains room for thoroughly examining similar domestic and international systems. A comparative systemic study is needed as a follow-up, focusing on operations and issues related to reserved fund management in similar systems.