[Plaintiff, Respondent and Appellant] Plaintiff (Attorney Park Gi-eok, counsel for the plaintiff)
[Defendants, Respondents] BNP Paribas Cardif General Insurance Co., Ltd. and 3 others (Gangnam General Law Firm and 3 others, counsel for the defendants)
[Defendants, Appellants and Respondents] Defendant 5 and 1 other (Hanaro Law LLC, Attorney Baek Gang-su and 1 other, counsel for the defendants)
[Judgment Below] Seoul Central District Court Decision 2017Na60279, decided October 23, 2018
[Order]
The part of the judgment below concerning the portion of the plaintiff's loss relating to past medical expenses, among the portions in which the plaintiff lost against Defendant 3, Defendant 5, and Defendant 6, is reversed, and this part of the case is remanded to the Seoul Central District Court. The remainder of the plaintiff's appeal and the appeal by Defendant 5 and Defendant 6 are all dismissed. Of the costs of the appeal, the portion arising between the plaintiff and Defendants BNP Paribas Cardif General Insurance Co., Ltd., Hanwha General Insurance Co., Ltd., and KB Insurance Co., Ltd. shall be borne by the plaintiff.
[Reasoning]
The grounds of appeal (including the supplementary brief on grounds of appeal submitted after the expiration of the period for submitting the grounds of appeal, to the extent it supplements the grounds of appeal) are examined as follows.
1. Outline of the Case and Issues
A. On June 5, 2012, Defendant 3 (then 16 years of age) caused the accident at issue by driving a motorcycle while intoxicated and colliding with the plaintiff, who was crossing a road adjacent to a crosswalk. As a result of the accident, the plaintiff suffered injuries including quadriplegia caused by cervical spinal cord injury. Defendant 5 and Defendant 6 are the parents of Defendant 3.
B. The court below held that Defendant 3, as the operator of the motorcycle, and Defendant 5 and Defendant 6, as supervisors who neglected their duty to protect and supervise Defendant 3, a minor, were jointly liable to compensate the plaintiff for damages arising from the accident, and determined the victim's comparative negligence to be 20%. Further, in calculating the amount of damages for past medical expenses, the court below first applied comparative negligence offset to the total medical expenses (37,460,205 won) (37,460,205 won × 80% = 29,968,164 won), and then deducted the full amount of insurance benefit costs borne by the National Health Insurance Service (hereinafter "the Service") (22,521,023 won), concluding that the plaintiff's damages related to past medical expenses amounted to 7,447,141 won (= 29,968,164 won - 22,521,023 won). As to this, the plaintiff argues, as the first ground of appeal, that in calculating the damages for past medical expenses, the amount borne by the Service should first be deducted from the total medical expenses, and comparative negligence offset should then be applied.
C. The main issue in this case is whether, when a victim who has received insurance benefits under the National Health Insurance Act (국민건강보험법) files a claim for damages arising from a tort against the tortfeasor, and the victim's own negligence has contributed to the occurrence of the damage, the so-called "offset after comparative negligence" method—whereby comparative negligence is first applied to the total medical expenses and then the full amount borne by the Service is deducted—is the proper method for calculating the amount of damages for past medical expenses.
2. Regarding the Method of Calculating the Amount of the Victim's Claim for Damages for Medical Expenses Against the Tortfeasor Where the Victim Has Received Insurance Benefits Under the National Health Insurance Act (Plaintiff's First Ground of Appeal)
A. Article 58 of the National Health Insurance Act, under the heading "Right of Subrogation," provides in paragraph (1) that "where grounds for insurance benefits arise due to the act of a third party and the Service provides insurance benefits to a subscriber or a dependent, the Service acquires the right to claim damages against the third party, limited to the cost incurred in providing such benefits," and in paragraph (2) that "where a person who has received insurance benefits under paragraph (1) has already received compensation for damages from the third party, the Service shall not provide insurance benefits within the limit of the amount of such compensation."
B. The Supreme Court has traditionally held that where the Service, having provided insurance benefits to a victim of a tort, subrogates the victim's claim for damages for past medical expenses against the tortfeasor pursuant to Article 58(1) of the National Health Insurance Act, the scope of such subrogation is the full amount of the insurance benefit costs borne by the Service (hereinafter "the amount borne by the Service"), limited to the amount of the tortfeasor's liability for damages, and that the victim's claim for damages against the tortfeasor is reduced accordingly. Accordingly, where a victim who has received insurance benefits under the National Health Insurance Act files a claim for damages against the tortfeasor and the victim's own negligence has contributed to the occurrence of the damage, the Court has held that in calculating the damages for past medical expenses, comparative negligence offset should first be applied to the total past medical expenses, and then the full amount borne by the Service should be deducted therefrom (the "offset after comparative negligence" method) (see Supreme Court Decision 2001Da40022, 40039, decided January 8, 2002; Supreme Court Decision 2002Da50149, decided December 26, 2002; Supreme Court Decision 2007Da48219, decided February 1, 2008; Supreme Court Decision 2008Da641, decided May 8, 2008; Supreme Court Decision 2009Da5735, decided May 28, 2009; Supreme Court Decision 2009Da44563, decided September 10, 2009; Supreme Court Decision 2009Da82633, 82640, decided February 11, 2010; Supreme Court Decision 2010Da7294, decided April 29, 2010; Supreme Court Decision 2009Da61612, 61629, decided June 24, 2010; Supreme Court Decision 2010Da13732, decided July 8, 2010; Supreme Court Decision 2010Da2428, 2435, decided July 15, 2010; Supreme Court Decision 2010Da30560, decided January 13, 2011; Supreme Court Decision 2011Da955, decided June 9, 2011; Supreme Court Decision 2010Da95611, decided May 24, 2012; Supreme Court Decision 2012Da39103, decided September 13, 2012; Supreme Court Decision 2011Da32075, decided November 29, 2012; Supreme Court Decision 2011Da39038, decided December 13, 2012; Supreme Court Decision 2013Da208524, decided October 24, 2013; Supreme Court Decision 2014Da213387, decided September 25, 2014; Supreme Court Decision 2014Da68013, 68020, decided February 12, 2015; Supreme Court Decision 2015Da205048, decided June 11, 2015; Supreme Court Decision 2017Da223, decided March 15, 2018; Supreme Court Decision 2018Da203920, decided June 12, 2018; Supreme Court Decision 2016Da205243, decided May 30, 2019; and others).
In the same vein, the Court has also held that where a person entitled to receive insurance benefits under the National Health Insurance Act has already received full compensation from a third party such as the tortfeasor for property damage related to items covered by insurance benefits, thereby relieving the Service of its obligation to provide insurance benefits (Article 58(2) of the National Health Insurance Act), but nonetheless received insurance benefits so that the Service bore costs related thereto, the scope within which the Service may recover such amounts as unjust enrichment pursuant to Article 57 of the National Health Insurance Act is the full amount borne by the Service, limited to the amount of the beneficiary's claim for damages against the third party, and is not limited to the portion of the amount borne by the Service corresponding to the tortfeasor's ratio of liability (see Supreme Court Decision 2014Du40340, decided December 29, 2016; Supreme Court Decision 2014Du15320, decided March 9, 2017; and others).
C. However, considering comprehensively the language and legislative purpose of Article 58 of the National Health Insurance Act, which recognizes the Service's right of subrogation for claims for damages; the purpose of the national health insurance system and its social security character; the balance and weighing of interests with respect to the legal status that a beneficiary of insurance benefits would enjoy had the tort not occurred; and the nature of the right to receive insurance benefits, this Court concludes as follows: where the Service, having provided insurance benefits to a victim of a tort, subrogates the victim's claim for damages for past medical expenses against the tortfeasor pursuant to Article 58(1) of the National Health Insurance Act, the scope of such subrogation is not limited to the full amount borne by the Service, subject to the tortfeasor's liability for damages, but rather is limited to the portion thereof corresponding to the tortfeasor's ratio of liability; as to the remaining amount (the portion of the amount borne by the Service corresponding to the victim's ratio of negligence), the Service cannot subrogate the victim's rights, and this amount must be regarded as ultimately borne by the Service for the benefit of the victim, who remains uncompensated for that portion of the damage even after receiving insurance benefits. Accordingly, where a victim who has received insurance benefits under the National Health Insurance Act files a claim for damages against the tortfeasor and the victim's own negligence has contributed to the occurrence of the damage, the amount of the victim's claim for damages relating to past medical expenses must be calculated using the "offset before comparative negligence" method, whereby the amount borne by the Service is first deducted from the total damages for past medical expenses, and comparative negligence offset is then applied.
Furthermore, this same legal principle applies equally to the scope within which the Service is relieved of its obligation to provide insurance benefits (Article 58(2) of the National Health Insurance Act) where a beneficiary of insurance benefits has received full compensation for property damage related to items covered by insurance benefits from a third party such as the tortfeasor. In this case, the scope of costs that the Service is relieved from bearing, by being relieved of its obligation to provide insurance benefits, is limited to the amount for which the grounds for payment arose due to the tortfeasor's act—that is, the portion of the amount borne by the Service corresponding to the tortfeasor's ratio of liability—and the remaining portion (the portion of the amount borne by the Service corresponding to the victim's ratio of negligence) must still be regarded as borne by the Service. Accordingly, where a beneficiary receives insurance benefits after having received compensation for damages from a third party, the scope within which the Service may recover amounts from the beneficiary as unjust enrichment pursuant to Article 57 of the National Health Insurance Act is likewise limited to the portion of the amount borne by the Service corresponding to the tortfeasor's ratio of liability. The detailed reasoning is as follows.
1) Article 58(1) of the National Health Insurance Act provides that where grounds for insurance benefits arise due to the act of a third party and the Service provides insurance benefits to a beneficiary, the Service acquires the right to claim damages against the third-party tortfeasor "limited to the cost incurred in providing such benefits," and thus, by its terms, merely sets the outer limit of the claim for damages that the Service may subrogate, without specifically defining the scope of subrogation. Likewise, paragraph (2) of the same Article merely provides that where a beneficiary has already received compensation for damages from a third party, the Service shall not provide insurance benefits "limited to the amount of such compensation," without specifically defining the scope of the amount for which the Service may withhold insurance benefits. The provision also does not explicitly address whether, where the victim's claim for damages against the tortfeasor is limited due to grounds such as comparative negligence offset, as in this case, the Service may subrogate the victim's claim for damages, or withhold the corresponding insurance benefits, for the full amount of costs borne by the Service in providing insurance benefits.
As such, since the language of Article 58 of the National Health Insurance Act alone does not clearly define the scope of the Service's right of subrogation, it does not necessarily follow that the amount of the claim for damages that the Service may subrogate on behalf of a beneficiary, or the amount that the Service may be relieved from bearing in future insurance benefits, pursuant to the above provision, must be regarded as the "full amount" borne by the Service, as held in prior Supreme Court precedents. The standard by which to calculate the amount that the Service may subrogate, or be relieved from bearing in the future, within the limit of the amount borne by the Service, may reasonably be determined by the court after comprehensively considering the legislative purpose and objectives of the National Health Insurance Act and the relevant individual provisions, the nature of the right to receive insurance benefits, and considerations of harmony and equity within the legal order as a whole.
2) The National Health Insurance Act aims to contribute to the improvement of national health and the enhancement of social security by providing insurance benefits for the prevention, diagnosis, treatment, and rehabilitation of citizens' illnesses and injuries, as well as for childbirth, death, and health promotion (Article 1). The national health insurance system is a social insurance system that guarantees the health and income of the people by addressing, through an insurance mechanism, social risks such as illness and injury arising among the people, funded by insurance premiums paid by insured persons and by state subsidies (Article 3, Subparagraphs 1 and 2 of the Framework Act on Social Security (사회보장기본법)), and is part of the social security scheme established by the State to realize its constitutional duty to protect the health of the people. Insurance benefits under the National Health Insurance Act have the character of the State, in its capacity as insurer, directly compensating for the loss incurred by beneficiaries of insurance benefits, such as insured persons and their dependents, by bearing all or part of the necessary medical expenses.
The National Health Insurance Act limits the circumstances in which insurance benefits may be restricted, providing that even where grounds for insurance benefits arise due to the negligent act of a beneficiary of insurance benefits, insurance benefits shall nonetheless be provided unless an exceptional circumstance exists, such as where the act arises from a criminal act committed with intent or gross negligence on the part of the beneficiary, or where the beneficiary intentionally caused the accident (Article 53(1)). This is intended to achieve the purpose of the social security system discussed above by ensuring that, where the beneficiary bears some responsibility for the occurrence of the grounds for insurance benefits but the degree thereof is not so great as to be contrary to the public nature of health insurance, insurance benefits are nonetheless provided so that the beneficiary is not excluded from the protection of health insurance.
Such legislative purpose of the National Health Insurance Act to promote national health and enhance social security, and the social security character of the national health insurance system, must be fully considered in determining the scope of subrogation under Article 58 of the National Health Insurance Act as well.
3) The conclusion that the "offset after comparative negligence" method, which is the least favorable to the victim, is not derived from the purpose for which Article 58 of the National Health Insurance Act recognizes the Service's right of subrogation.
A) The right of a victim who has suffered injury due to a tort to claim damages against the tortfeasor is fundamentally based on the principle of fault liability, and thus differs in legal character from the right to receive health insurance benefits, which, as discussed above, has a social security character. However, since both share the common function of compensating the beneficiary's loss, Article 58 of the National Health Insurance Act is a mutual coordination provision intended to prevent a victim who has received insurance benefits from obtaining a double benefit by also receiving compensation from the tortfeasor, and to prevent a third party from evading liability for damages as a result of the victim having received insurance benefits (see Supreme Court Decision 2014Da206853, decided September 10, 2015; Supreme Court Decision 2014Du40340, decided December 29, 2016; and others).
B) Under the National Health Insurance Act, a beneficiary is required to bear a portion of the cost of medical care benefits personally (Article 44(1); Article 19 and attached Table 2 of the Enforcement Decree of the National Health Insurance Act (국민건강보험법 시행령) set the rates or amounts by medical institution, illness, and type of benefit; this cost is hereinafter referred to as "the beneficiary's personal co-payment"), and the Service bears only the remaining amount; thus, the victim is not compensated for medical expenses to the extent of the personal co-payment. Furthermore, where the victim's own negligence or pre-existing condition has contributed to the occurrence of the damage, the tortfeasor is liable for damages only within the limited scope determined through comparative negligence offset and similar mechanisms. In such a case, the extent to which the Service, having provided insurance benefits, may subrogate the victim's (beneficiary's) claim for damages determines the "amount of loss remaining uncompensated for the victim." If, as in prior Supreme Court precedents, the scope of the Service's subrogation is regarded as the full amount borne by the Service, the amount of the victim's uncompensated loss becomes the greatest; conversely, reducing the scope of the Service's subrogation correspondingly reduces the victim's uncompensated loss.
For example, suppose a victim received medical care benefits amounting to 10,000,000 won in medical expenses and paid a personal co-payment of 4,000,000 won (with the amount borne by the Service being 6,000,000 won), and the tortfeasor's ratio of liability is 80%. Under prior Supreme Court precedents, even if the victim seeks to recover damages from the tortfeasor for the 4,000,000 won borne personally, the Service may subrogate the victim's claim and recover from the tortfeasor the full 6,000,000 won borne by the Service, out of the 8,000,000 won (= 10,000,000 won × tortfeasor's liability ratio of 80%) that the tortfeasor is liable to pay in damages, and the victim may claim only the remaining 2,000,000 won from the tortfeasor after this deduction (the "offset after comparative negligence" method). Ultimately, the tortfeasor bears a loss of 8,000,000 won (= 6,000,000 won in reimbursement to the Service + 2,000,000 won in damages to the victim), the Service bears a loss of 0 won (= 6,000,000 won borne by the Service - 6,000,000 won in reimbursement received from the tortfeasor), and the victim bears a loss of 2,000,000 won (= 4,000,000 won personal co-payment - 2,000,000 won in damages received from the tortfeasor).
By contrast, if this is interpreted in the manner most favorable to the victim, such that the Service, as insurer, may subrogate the victim's rights only to the extent that doing so does not infringe upon the victim's rights, then, in the example above, the victim may claim 4,000,000 won in damages from the tortfeasor in priority to the Service, and the Service may claim from the tortfeasor only the remaining 4,000,000 won (= 8,000,000 won total damages payable by the tortfeasor - 4,000,000 won in damages payable to the victim). In that case, ultimately, the tortfeasor bears a loss of 8,000,000 won (= 4,000,000 won in damages to the victim + 4,000,000 won in reimbursement to the Service), the Service bears a loss of 2,000,000 won (= 6,000,000 won borne by the Service - 4,000,000 won in reimbursement received from the tortfeasor), and the victim bears no loss (0 won) (= 4,000,000 won personal co-payment - 4,000,000 won in damages received from the tortfeasor), such that the victim suffers no uncompensated loss.
As such, even if the scope within which the Service may subrogate the victim under Article 58 of the National Health Insurance Act is interpreted in the manner most favorable to the victim, the victim may still only seek damages from the tortfeasor to the extent of the loss remaining after receiving insurance benefits, and the Service may claim reimbursement for the remaining amount; thus, the problem that Article 58 is intended to address—namely, the victim's obtaining a double benefit, or the tortfeasor evading liability for damages—does not arise. Accordingly, it does not follow that the "offset after comparative negligence" method, which is least favorable to the victim, must be adopted from the purpose for which Article 58 recognizes the Service's right of subrogation.
C) Meanwhile, Article 58 of the National Health Insurance Act may also be understood to include the purpose of securing the Service's insurance finances, and it is true that expanding the scope within which the Service may subrogate the victim benefits the insurance finances. However, in light of the legislative purpose of the National Health Insurance Act and the social security character of the national health insurance system discussed above, securing insurance finances cannot necessarily be regarded as a matter that must be given priority over the interests of the victim, who is the beneficiary. Accordingly, interpreting Article 58 in the manner most favorable to the Service and least favorable to the beneficiary in order to secure insurance finances cannot be justified.
4) Considering the balance with, and the legal status corresponding to, the benefit of insurance coverage that the beneficiary would have enjoyed had the tort not occurred, as well as equity between the beneficiary and the Service, the "offset before comparative negligence" method, which reasonably limits the scope of the Service's subrogation, is proper.
A) As discussed above, the National Health Insurance Act provides insurance benefits, at the Service's expense, to compensate for loss incurred by a beneficiary, even where grounds for insurance benefits arise due to the negligent act of the beneficiary, unless an exceptional circumstance exists, such as intent or gross negligence (Article 53(1)). Accordingly, even where an accident occurs entirely due to the beneficiary's own negligence without the involvement of any third party, the beneficiary may fully enjoy the benefit of receiving insurance benefits, and as a result, may be compensated for medical expense losses to the extent of the amount borne by the Service. If so, even where the damage arises from a combination of a third party's tort and the beneficiary's own negligence, it is reasonable to view "at least the portion of the amount borne by the Service corresponding to the beneficiary's ratio of negligence" as an insurance benefit that the Service, as insurer, would originally have been obligated to bear for the beneficiary, and which the beneficiary may legitimately enjoy. The portion of the amount borne by the Service corresponding to the tortfeasor's ratio of liability is equivalent to the Service having paid, on the tortfeasor's behalf, an amount that the tortfeasor should originally have borne, and thus it is reasonable to view that portion as recoverable by the Service from the tortfeasor through subrogation of the victim's rights; however, to further hold, as in prior Supreme Court precedents, that the Service may subrogate even the portion of the amount borne by the Service corresponding to the victim's own ratio of negligence, effectively results in the Service shifting onto the victim a portion that the Service should originally have borne for the victim's benefit. Accordingly, the scope of the Service's subrogation under Article 58 of the National Health Insurance Act should be limited not to the full amount borne by the Service, but to the portion thereof corresponding to the tortfeasor's ratio of liability, and in calculating the amount of the victim's claim for damages against the tortfeasor, the "offset before comparative negligence" method should be followed, whereby the amount borne by the Service is first deducted from the total medical expenses, and comparative negligence offset is then applied.
In the example given above, if damage of 10,000,000 won in medical expenses arose entirely (100%) due to the beneficiary's own negligence, and the beneficiary paid a personal co-payment of 4,000,000 won, the beneficiary would enjoy the benefit of insurance coverage in the amount of 6,000,000 won borne by the Service. Now suppose the accident arose from a combination of a third party's tort and the beneficiary's own negligence (20%). Even though the Service may subrogate the victim's rights and recover from the tortfeasor the portion of the amount borne by the Service corresponding to the tortfeasor's liability, namely 4,800,000 won (= 6,000,000 won × tortfeasor's liability ratio of 80%), it is consistent with the situation where the beneficiary's negligence was 100%, and also consistent with the purpose of the National Health Insurance Act to protect beneficiaries from the risk of illness and injury, to hold that the beneficiary may enjoy the benefit of insurance coverage as to the portion corresponding to the beneficiary's own negligence, namely 1,200,000 won (= 6,000,000 won × victim's negligence ratio of 20%). If so, the amount of the beneficiary's claim for damages against the tortfeasor is calculated by first deducting the amount borne by the Service from the total medical expenses (which equals the amount of the personal co-payment) and then applying comparative negligence offset, resulting in 3,200,000 won (= 4,000,000 won × tortfeasor's liability ratio of 80%) (the "offset before comparative negligence" method). Ultimately, the tortfeasor bears a loss of 8,000,000 won (= 3,200,000 won in damages to the victim + 4,800,000 won in reimbursement to the Service), the Service bears a loss of 1,200,000 won (= 6,000,000 won borne by the Service - 4,800,000 won in reimbursement from the tortfeasor), and the victim bears a loss of 800,000 won (= 4,000,000 won personal co-payment - 3,200,000 won in damages from the tortfeasor, which equals the portion of the personal co-payment corresponding to the victim's own ratio of negligence).
B) However, if, as in prior Supreme Court precedents, the Service may subrogate the victim's rights for the full amount borne by the Service, then, as discussed above, out of the 8,000,000 won (= 10,000,000 won in medical expenses × tortfeasor's liability ratio of 80%) payable in damages by the tortfeasor, the Service subrogates the victim's rights and recovers from the tortfeasor the full 6,000,000 won borne by the Service, thereby reducing the victim's claim for damages by that amount. Ultimately, the tortfeasor bears a loss of 8,000,000 won (= 6,000,000 won in reimbursement to the Service + 2,000,000 won in damages to the victim), the Service bears no loss (0 won) (= 6,000,000 won borne by the Service - 6,000,000 won in reimbursement received from the tortfeasor), and the victim bears a loss of 2,000,000 won (= 4,000,000 won personal co-payment - 2,000,000 won in damages received from the tortfeasor). This produces the unreasonable result that, whereas the Service bore 6,000,000 won and the beneficiary enjoyed a corresponding insurance benefit when the beneficiary's negligence was 100%, when the beneficiary's negligence is only 20%, the Service bears no cost at all and the beneficiary enjoys no insurance benefit whatsoever.
C) This unreasonable result becomes even more apparent when one considers a case where damage occurs due to circumstances attributable to the beneficiary, and is then further increased by the tortfeasor's tortious act. For example, suppose a beneficiary receives treatment for a pre-existing illness costing 7,000,000 won (with a personal co-payment rate of 40%), such that the beneficiary bears 2,800,000 won (= 7,000,000 won × 40%) and the Service bears the remaining 4,200,000 won. Now suppose that this beneficiary, who has a pre-existing condition, suffers medical expense damage of 10,000,000 won due to the tortfeasor's tortious act, with the pre-existing condition's contribution being 70%. In such a case, the reasonable conclusion that anyone would readily reach is that the tortfeasor should bear only the additional 3,000,000 won in damage caused by the tortious act, and only in that way can the beneficiary enjoy the same legal status as would have existed had the tort not occurred.
[Reasoning] (continued)
At this point, under the "deduction-then-comparative-negligence-offset" method, the beneficiary claims from the tortfeasor 1,200,000 won, which corresponds to the tortfeasor's 30% liability ratio out of the beneficiary's own-burden portion of 4,000,000 won, and the Corporation subrogates and seeks reimbursement from the tortfeasor for 1,800,000 won, which corresponds to the tortfeasor's liability ratio out of the Corporation-borne portion of 6,000,000 won. As a result, the final allocation is: the tortfeasor bears 3,000,000 won (= 1,200,000 won in damages to the victim + 1,800,000 won in reimbursement to the Corporation); the Corporation bears 4,200,000 won (= 6,000,000 won Corporation-borne portion − 1,800,000 won reimbursement received from the tortfeasor); and the beneficiary bears 2,800,000 won (= 4,000,000 won own-burden portion − 1,200,000 won in damages received from the tortfeasor). This is because, under the "deduction-then-offset" method, out of the additional 3,000,000 won in damage caused by the tortfeasor's wrongful act, the additional 1,200,000 won burden borne by the beneficiary (= 3,000,000 won × 40% own-burden ratio) is not transferred to the Corporation but remains with the victim, allowing the victim to recover it from the tortfeasor.
However, if, as under the prior Supreme Court precedent, the Corporation is deemed able to subrogate the beneficiary's rights with respect to the entire Corporation-borne portion, the final allocation becomes: the tortfeasor bears 3,000,000 won (= 10,000,000 won × 30%, all reimbursed to the Corporation); the Corporation bears 3,000,000 won (= 6,000,000 won Corporation-borne portion − 3,000,000 won reimbursement received from the tortfeasor); and the beneficiary bears 4,000,000 won (= 4,000,000 won own-burden portion − 0 won in damages received from the tortfeasor). As seen above, where no third party's wrongful act was involved, the beneficiary bore 2,800,000 won in damage and the Corporation bore 4,200,000 won; but once a wrongful act intervened, the beneficiary ends up finally bearing 4,000,000 won and the Corporation 3,000,000 won. In other words, the beneficiary's position becomes more disadvantageous, and conversely the Corporation's position becomes more advantageous, merely because a third party's wrongful act intervened. This cannot be regarded as just, whether viewed from the standpoint of balance with the benefit the beneficiary would have enjoyed had there been no wrongful act, or from the standpoint of weighing the interests between the parties.
5) In light of the fact that the right to receive insurance benefits under the National Health Insurance Act (국민건강보험법) is a property right that has both the character of consideration for premiums paid by the insured and the character of social insurance, the "deduction-then-offset" method is also the appropriate approach.
A) Health insurance finances are partly supported by the national treasury, but are mostly formed by premiums paid by the insured [national treasury support is limited to 14% of expected premium revenue, and the temporary support from the National Health Promotion Fund is limited to 6% of expected premium revenue; see Article 108 of the National Health Insurance Act, and Paragraph 2 of the Addenda to the National Health Promotion Act (Act No. 6619, January 19, 2002)], and if an insured person is delinquent in paying premiums, the Corporation may refuse to provide insurance benefits (Article 53, Paragraph 3 of the National Health Insurance Act). As such, the right to receive insurance benefits under the National Health Insurance Act has the character of consideration for premiums paid by the insured, and also has economic utility in that it compensates for the financial burden on the insured caused by an insured event, and thus has the character of a property right (see Constitutional Court en banc Decision 2002Hun-Ba1, delivered December 18, 2003, etc.).
B) Meanwhile, the health insurance system, as social insurance, also performs an income redistribution function. The National Health Insurance Act compels insurance enrollment, sets premiums in proportion to the insured's economic capacity rather than differentiating premiums individually according to the incidence of insured events or the amount of insurance benefits received, and does not pay insurance benefits in proportion to the premiums paid by the insured (see Constitutional Court en banc Decision 99Hun-Ma289, delivered June 29, 2000; Constitutional Court en banc Decision 2000Hun-Ma801, delivered October 30, 2003, etc.). Considering further, as noted above, that insurance finances are partly supported by the national treasury, it is difficult to view insurance benefits as being in a simple relationship of consideration with premiums.
C) In determining the scope within which the Corporation may subrogate the victim under Article 58 of the National Health Insurance Act, the various characteristics of the right to receive insurance benefits, as described above, must be comprehensively considered. Interpreting the scope of the Corporation's subrogation in the manner most disadvantageous to the beneficiary, as under the prior Supreme Court decisions, unduly restricts the health insurance benefit right, which is a property right of the insured, and is therefore unjust. Considering these various characteristics of the right to receive insurance benefits, limiting the scope within which the Corporation may subrogate the victim to the portion of the Corporation-borne amount corresponding to the tortfeasor's liability ratio, and allowing the victim to enjoy the benefit of insurance coverage with respect to the portion of the Corporation-borne amount corresponding to the victim's own negligence ratio, is most consistent with the principle of fairness and is the method that most harmoniously resolves the conflicting interests.
D. Accordingly, insofar as they conflict with the views expressed in this decision, all of the following are hereby overruled: Supreme Court Decision 2002Da50149, delivered December 26, 2002, and decisions to the same effect, which held that where a victim who has received insurance benefits under the National Health Insurance Act brings a claim for damages against a third party and the victim's own negligence has contributed to the occurrence of the damage, comparative negligence offsetting must first be applied to the total medical expenses, after which the full amount borne by the Corporation must be deducted therefrom, that comparative negligence offsetting may not be applied again to the insurance benefits so deducted, and that where the Corporation, after providing insurance benefits to a victim of a tortious act, subrogates the victim's right to claim damages against the tortfeasor, the scope of such subrogation is the entire amount borne by the Corporation, up to the limit of the amount of damages. In the same vein, insofar as they conflict with the views expressed in this decision, all of the following are hereby overruled: Supreme Court Decision 2014Du40340, delivered December 29, 2016, and decisions to the same effect, which held that where a beneficiary entitled to insurance benefits under the National Health Insurance Act has received full compensation for property damage related to insurance benefit items from a third party such as a tortfeasor, thereby releasing the Corporation from its obligation to provide insurance benefits, but the beneficiary nevertheless received insurance benefits and the Corporation bore costs in connection therewith, the scope within which the Corporation may collect unjust enrichment under Article 57 of the National Health Insurance Act is the entire amount borne by the Corporation, up to the limit of the amount of damages recoverable by the beneficiary from the third party, and is not limited to the portion of the Corporation-borne amount corresponding to the tortfeasor's liability ratio.
E. Judgment on this case
Applying these legal principles to the facts found above, the Plaintiff's damages for past medical expenses should be calculated as follows: from the total medical expenses of 37,460,205 won, the Corporation-borne amount of 22,521,023 won must first be deducted, and then comparative negligence offsetting must be applied to the remainder of 14,939,182 won (= 37,460,205 won − 22,521,023 won), yielding 11,951,345 won (= 14,939,182 won × 80%, rounding down amounts less than one won).
Contrary to this, the lower court erred in calculating the damages for past medical expenses by first applying comparative negligence offsetting to the total medical expenses and then deducting the entire Corporation-borne amount, which constitutes an error of law affecting the judgment by misunderstanding the legal principles concerning Article 58 of the National Health Insurance Act and the calculation of damages payable to a tortfeasor where a victim has received insurance benefits under the National Health Insurance Act. The Plaintiff's ground of appeal pointing this out has merit.
3. As to the Plaintiff's remaining grounds of appeal
A. As to the second ground of appeal
The lower court determined that uninsured motor vehicle injury insurance is an injury-insurance-type damage insurance that has the character of both injury insurance and damage insurance, and that in such a case, absent special circumstances, the insurer must be deemed to have assumed risk not on the basis of the insured's actual amount of damage, but only, in a limited manner, on the basis of the amount calculated according to the insurance payment standards set forth in the policy terms, in light of the terms of the policy and the calculation of premiums; and that such comparative-negligence-offset clauses cannot be held invalid as violating Articles 739, 732-2(1), and 663 of the Commercial Act (상법), which apply to personal insurance.
Examining the reasoning of the lower court's judgment in light of the relevant legal principles and the record, there is no error in the lower court's determination, as alleged in the ground of appeal, arising from a misunderstanding of the legal principles concerning the validity of the comparative-negligence-offset clause within the uninsured motor vehicle injury insurance rider, which affected the judgment.
B. As to the third ground of appeal
The lower court determined that the Plaintiff's current condition constitutes incomplete quadriplegia rather than complete quadriplegia, and that since it may be presumed that the Plaintiff is partially able to change position using the muscles of both arms and both legs, the Plaintiff does not meet the additional requirement for eligibility for home nursing care expenses, namely, "requiring constant care by another person, such as the need to frequently change position to prevent bedsores."
Examining the reasoning of the lower court's judgment in light of the relevant legal principles and the record, there is no error in the lower court's determination, as alleged in the ground of appeal, arising from a misunderstanding of the legal principles concerning the eligibility criteria and payment standards for home nursing care expenses under uninsured motor vehicle injury insurance, or from a failure to conduct necessary deliberation resulting in a misapprehension of facts in violation of the rules of logic and experience, exceeding the bounds of the principle of free evaluation of evidence, which affected the judgment.
C. As to the fourth ground of appeal
The gist of this ground of appeal is that the provision within the uninsured motor vehicle injury insurance rider setting the delay damages, which the insurance company must pay from the day seven days after receiving documents concerning a claim for benefits until the date of payment, at the "fixed deposit interest rate as publicly announced by the Korea Insurance Development Institute," violates the duty to explain the terms of the policy, and thus cannot be made part of the contract, or is an unfairly disadvantageous clause to the customer that is unfair and contrary to the principle of good faith, and is therefore invalid.
However, this ground of appeal presupposes that the second or third ground of appeal is accepted and that there remains an amount of insurance proceeds payable to the Plaintiff under the uninsured motor vehicle injury insurance. Since, as discussed above, the second and third grounds of appeal are not accepted, this ground of appeal is without merit, without need for further examination.
D. As to the remaining appeal
The Plaintiff also appealed the portion of the lower court's judgment concerning consolation money as against Defendant 3, Defendant 5, and Defendant 6, but the petition of appeal and the brief of grounds of appeal contain no specific statement of grounds of objection thereto.
4. As to the grounds of appeal of Defendant 5 and Defendant 6
The lower court determined that, considering that Defendant 3 was a 16-year-and-6-month-old first-year high school student at the time of the accident, was entirely economically dependent on his parents, Defendant 5 and Defendant 6, had previously received a disposition of deferred prosecution for driving an unregistered motorcycle he had personally purchased without a license, had failed to adjust to high school life, frequently absented himself from school without permission, drank with friends at night, and frequently rode motorcycles, and, despite all this, caused the accident by driving a friend's motorcycle while intoxicated, Defendant 5 and Defendant 6, as the parents of the minor Defendant 3, cannot be said to have fulfilled their duty of protection and supervision over Defendant 3, and that there is a proximate causal relationship between the occurrence of this accident and Defendant 5 and Defendant 6's breach of their duty of protection and supervision.
Examining the reasoning of the lower court's judgment in light of the relevant legal principles and the record, there is no error in the lower court's determination, as alleged in the ground of appeal, arising from a misunderstanding of the legal principles concerning the liability of a supervisor of a minor, or from a violation of the rules of logic and experience resulting in a misapprehension of facts exceeding the bounds of the principle of free evaluation of evidence, which affected the judgment.
5. Conclusion
The portion of the lower court's judgment concerning past medical expenses, within the portion ruling against the Plaintiff as to Defendant 3, Defendant 5, and Defendant 6, is reversed, and this part of the case is remanded to the lower court for further hearing and determination. The Plaintiff's remaining appeal and the appeal of Defendant 5 and Defendant 6 are all dismissed. Of the costs of appeal, the portion arising between the Plaintiff and Defendants BNP Paribas Cardif General Insurance Co., Ltd., Hanwha General Insurance Co., Ltd., and KB Insurance Co., Ltd. is to be borne by the Plaintiff. It is so ordered as set forth in the Order. As to this judgment, apart from the dissenting opinion of Justice Lee Dong-won concerning the method of calculating the amount of the medical expense damages claim of a victim who has received insurance benefits under the National Health Insurance Act against the tortfeasor (Section 2 above), the opinions of the participating Justices were unanimous, and there is a supplementary opinion of Justice Park Sang-ok and Justice Min Yu-suk concurring with the majority opinion.
6. Dissenting Opinion of Justice Lee Dong-won on the Method of Calculating the Amount of the Medical Expense Damages Claim
A. The main issue in this case is how to determine the scope of subrogation where an insurer under the National Health Insurance Act, after providing insurance benefits to a victim of a tortious act, subrogates the victim's right to claim damages for past medical expenses against the tortfeasor pursuant to Article 58 of the National Health Insurance Act. That is, the question is whether this should be viewed as "the entire amount borne by the Corporation," up to the limit of the tortfeasor's amount of liability for damages, or whether it should be limited to, for example, "the amount of the Corporation-borne portion corresponding to the tortfeasor's liability ratio." The method of calculating the amount of the victim's claim for damages for past medical expenses against the tortfeasor is determined accordingly.
B. The majority opinion holds that the scope of the Corporation's subrogation must be limited to "the amount of the Corporation-borne portion corresponding to the tortfeasor's liability ratio," and that the prior Supreme Court precedent, which viewed the scope of subrogation as "the entire amount of the Corporation-borne portion," up to the limit of the amount of damages, must accordingly be overruled. However, the legal principle of the prior Supreme Court precedent—viewing the scope within which the Corporation subrogates the victim's right to claim damages under Article 58, Paragraph 1 of the National Health Insurance Act as "the entire Corporation-borne amount," and accordingly, in calculating the victim's damages for past medical expenses against the tortfeasor, first applying comparative negligence offsetting to the total past medical expenses and then deducting the entire Corporation-borne amount—is sound and should be maintained. The specific reasons are as follows.
1) Viewing the scope of the Corporation's subrogation as "the entire amount borne by the Corporation, up to the limit of the amount of damages," is the most natural interpretation, and is most consistent with the text of Article 58 of the National Health Insurance Act.
Article 58, Paragraph 1 of the National Health Insurance Act merely provides that the Corporation, having provided insurance benefits to a victim due to a third party's tortious act, acquires the victim's right to claim damages against the third party, up to the limit of "the costs incurred for the benefits"; it does not exclude from the scope of subrogation "the portion of the costs incurred for the benefits corresponding to the victim's own negligence ratio." Likewise, Paragraph 2 merely provides that where a person who has received insurance benefits has already received compensation from a third party, the Corporation shall not provide insurance benefits up to the limit of "the amount of such compensation"; it does not exclude from the scope within which the Corporation is released from its obligation to provide insurance benefits "the portion of the insurance benefits corresponding to the victim's own negligence ratio." Accordingly, the natural interpretation according to the text of the law is that the scope of the Corporation's subrogation under Article 58, Paragraph 1 of the National Health Insurance Act is the entire amount of costs incurred for the benefits, up to the limit of the tortfeasor's amount of liability for damages, and that the victim's right to claim damages against the tortfeasor is reduced to that extent by the transfer through subrogation.
This can also be seen by comparing the text with Article 682, Paragraph 1 of the Commercial Act (상법), which defines the scope of insurer subrogation. The main clause of Article 682, Paragraph 1 of the Commercial Act provides: "Where damage occurs due to the act of a third party, the insurer who has paid the insurance proceeds acquires the right of the policyholder or the insured against the third party, up to the limit of the amount paid," while the proviso provides: "Provided, however, that where the insurer has paid only part of the insurance proceeds it is liable to pay, it may exercise such right only to the extent that it does not infringe upon the right of the insured." Accordingly, in private insurance to which this provision applies, where the insured has received insurance proceeds from the insurer but there remains an amount of damage not compensated, the portion of the insured's right to claim damages against the tortfeasor corresponding to that remaining uncompensated amount of damage still belongs to the insured, and only the portion exceeding that amount may be directly claimed against the tortfeasor by the insurer through subrogation of the victim's right (see Supreme Court Decision 2011Da100312, delivered August 30, 2012; Supreme Court Decision 2012Da27643, delivered September 12, 2013, etc.). However, Article 58 of the National Health Insurance Act does not contain a provision equivalent to the proviso of Article 682, Paragraph 1 of the Commercial Act, and therefore there is no basis for limiting the scope of the Corporation's subrogation as the majority opinion does.
2) Health insurance under the National Health Insurance Act is a social security insurance system whose main purpose is to protect beneficiaries through prompt, stable, and universal insurance benefits. It cannot be said that, as in private insurance, compensating the victim's damage is the main function of health insurance.
The national health insurance system is a social insurance system that addresses social risks such as illness and injury occurring to citizens by means of an insurance scheme in which enrollment and premium payment are compulsory, and is insurance operated by the State for the purpose of carrying out policies such as social security. In this respect, it fundamentally differs in function and purpose from private insurance operated by private entities for profit. The National Health Insurance Act provides that even where an insured event occurs due to the beneficiary's negligent conduct, insurance benefits must be provided unless there is an exceptional circumstance such as the beneficiary's intent or gross negligence (Article 53, Paragraph 1). Accordingly, the system protects beneficiaries by allowing them to receive a certain level of treatment, first at the Corporation's expense, even in cases where the beneficiary's negligence is substantial such that the amount of damages recoverable from the tortfeasor is small, where the tortfeasor is unknown or insolvent such that the beneficiary has difficulty actually receiving compensation for damages, or where the tortfeasor delays payment of damages. To this end, the subject matter, content, and criteria for provision of insurance benefits are set by law so that optimal insurance benefits can be universally provided to all beneficiaries within limited financial resources. This may be regarded as the main function of the national health insurance system as social insurance.
For the national health insurance system to properly perform this function as social insurance, securing financial resources for insurance benefits must be a precondition. Where a third party's tortious act intervenes and the third party bears liability for damages, it is necessary, to the extent that it does not undermine the main function of national health insurance discussed above, to recognize the Corporation's subrogation as far as possible so that the Corporation may seek reimbursement from the tortfeasor, thereby securing insurance finances. If the scope of the Corporation's subrogation is limited as in the majority opinion, insurance finances will be correspondingly reduced, which will inevitably result in either a reduction of the insurance benefits funded thereby or an increase in the premium burden on the entire citizenry, and it must be considered that this diminishes the role of health insurance as a social security system.
As the majority opinion points out, where insurance benefits do not cover the entire cost of treatment, there remains uncompensated damage (the beneficiary's own-burden portion) even after the victim has received insurance benefits. However, since compensating the beneficiary's damage cannot be said to be the main function or purpose of the national health insurance system as social insurance, even if, as under the prior Supreme Court precedent, it is held that the Corporation may subrogate the victim's right within the scope of the entire Corporation-borne amount after providing insurance benefits to the victim, it cannot be said that this undermines the main function or purpose of the national health insurance system. Compensating for damage in areas not covered by national health insurance, such as non-covered medical expenses excluded from the subject matter of insurance benefits, is a domain that should be covered by private insurance individually purchased by the beneficiary.
3) Even in light of the purpose for which Article 58 of the National Health Insurance Act recognizes the Corporation's subrogation, the prior Supreme Court precedent holding that the Corporation may subrogate the victim's right with respect to the entire Corporation-borne amount is sound.
The purpose of Article 58 of the National Health Insurance Act in recognizing the Corporation's subrogation is to prevent the victim from receiving double recovery through both insurance benefits and damages, and to prevent the tortfeasor from escaping liability for damages, thereby securing insurance finances (see Supreme Court Decision 2014Du40340, delivered December 29, 2016, etc.). Considering this purpose, the Corporation's insurance benefits and the tortfeasor's damages liability for the same cause are in a mutually complementary relationship, and to the extent the Corporation has paid costs, the Corporation has done so in place of the tortfeasor, and therefore the victim's right to claim damages against the tortfeasor should be viewed as having been transferred to the Corporation to that extent.
The same holds true even where the victim's own negligence has contributed to the occurrence of the damage such that the victim's right to claim damages against the tortfeasor is limited. The majority opinion, premised on the assumption that the Corporation-borne amount includes a portion arising from the tortfeasor's liability and a portion arising from the victim's own negligence, argues that the portion arising from the victim's own negligence is originally a cost that the Corporation should bear. However, this reasoning is an inference based on excessively formal logic, and there is no legal basis for distinguishing, as the majority opinion does, between the portion of insurance benefits arising from the tortfeasor's liability and the portion arising from the victim's own negligence. Considering further that the purpose of Article 58 of the National Health Insurance Act also lies in securing the insurance finances essential to the role of social insurance, it is reasonable to interpret, as under the prior precedent, that the portion arising from the tortfeasor's liability is preferentially included in the portion borne by the Corporation, and to view the scope of the Corporation's subrogation as the entire Corporation-borne amount, up to the limit of the tortfeasor's amount of liability for damages.
4) Even under the prior Supreme Court precedent, no unjust result arises, such as the victim being placed in a more disadvantageous position than in a case where no tortious act was involved.
The majority opinion contends that, if the scope of the Corporation's subrogation is the entire Corporation-borne amount, the victim's position becomes unreasonably more disadvantageous where a third party's tortious act intervenes compared with a case where the accident occurred solely due to the victim's own negligence. However, the reason insurance benefits are provided even where an accident occurs due solely to the victim's own negligence is, as discussed above, to provide prompt and stable insurance benefits regardless of who is responsible for causing the damage, thereby fulfilling the social security function of national health insurance. Even where a third party's tortious act intervenes, so long as the victim receives insurance benefits prior to receiving damages from the tortfeasor, the victim is provided with the "benefit of receiving prompt and stable treatment," just as in the case where the accident occurred solely due to the victim's own negligence, and moreover, obtains the additional benefit that the Corporation bears the risk in cases where the tortfeasor is unidentified or insolvent such that the victim cannot receive damages. Even under the prior Supreme Court precedent, the victim bears damage only with respect to the portion attributable to the victim's own negligence, and does not additionally bear damage beyond that with respect to the portion for which the tortfeasor is liable. In light of this, the fact that the damage ultimately borne by the victim as a result of the Corporation's subrogation is not proportionally equivalent to a case where the victim was 100% negligent cannot be said to mean that the victim is placed in a more disadvantageous position than in a case where no tortious act was involved.
The majority opinion posits a scenario in which damage arises due to the victim's pre-existing condition and is then expanded by the addition of the tortfeasor's tortious act, and argues that the conclusion reached under the prior Supreme Court precedent is unjust. However, while it may be conceptually possible to distinguish, in this manner, damage arising from the victim's own negligence from damage expanded by the tortfeasor's tortious act, in reality, in most cases, the negligence of the victim and the tortfeasor together, as a whole, gives rise to a single instance of damage. If, as the majority opinion suggests, it were possible to distinguish between damage arising from the victim's own negligence and damage expanded by the tortfeasor's tortious act, then it would also be possible to distinguish the amount of damage corresponding to each portion, such that the Corporation could not subrogate the victim's right with respect to the insurance benefits attributable to the beneficiary's pre-existing condition (7,000,000 won in the majority opinion's example), and the Corporation could subrogate the victim's right only with respect to the Corporation-borne amount attributable to the damage expanded by the tortfeasor's tortious act (1,800,000 won, being 60% of the Corporation-borne amount for the 3,000,000 won portion), which would lead to the same conclusion as the majority opinion. Accordingly, the majority opinion's criticism is not persuasive.
5) It is also difficult to find any need to overrule the established legal principle of the prior Supreme Court precedent.
[Reasoning]
In order to change the position of an established precedent, there must be circumstances such that changing it would have a far superior value compared to maintaining it as it is, to the extent that the sacrifice of legal stability resulting therefrom would be justified—for example, where the existing position has come to significantly conflict with the concept of justice due to changes in the times and circumstances, or has come to significantly deviate from the purport of the relevant statutory provision. Changing the view of accumulated precedent merely on the ground that a new legal opinion is somewhat better or appears more reasonable seriously undermines legal stability and is not appropriate (see the separate opinion in the Supreme Court en banc Decision 2010Do10500, delivered on February 21, 2013).
Since the Supreme Court held, in a case involving insurance benefits provided under the former Medical Insurance Act (의료보험법), that where an insurer provides insurance benefits to a victim of a tort and then subrogates the victim's right to claim damages against the tortfeasor, the scope of such subrogation is "the full amount of the insurance benefits provided, within the limit of the amount of the damages claim" (Supreme Court Decision 2001Da40022, 40039, delivered on January 8, 2002), the Supreme Court has consistently determined the scope of the Corporation's subrogation in accordance with this legal principle. Supreme Court Decision 2010Da13732, delivered on July 8, 2010, held that this legal principle was the established position of the Supreme Court, and this has continued through recent Supreme Court decisions, including Supreme Court Decision 2018Da203920, delivered on June 12, 2018, and Supreme Court Decision 2016Da205243, delivered on May 30, 2019. Furthermore, the Supreme Court has maintained a consistent interpretation not only with respect to health insurance but also with respect to other social insurance systems, holding that the scope within which the insurer may subrogate is "the full amount of the insurance benefits provided, within the limit of the amount of the damages claim" (see, e.g., Supreme Court Decision 88Daka5041, delivered on April 25, 1989, regarding benefits under the Industrial Accident Compensation Insurance Act (산업재해보상보험법); Supreme Court Decision 2007Da10245, delivered on July 27, 2007, regarding benefits under the National Pension Act (국민연금법)). In this manner, the legal principle of the prior Supreme Court precedent has been established over a long period of time, and judicial practice has been operated stably on that basis.
It is difficult to find such circumstances as would warrant changing this well-established legal principle of the prior Supreme Court precedent, such as changes in the socio-economic structure surrounding the National Health Insurance system or in the relevant legal system. Ever since the Medical Insurance Act enacted in 1963, and continuing through the National Health Insurance Act (국민건강보험법), enacted in 1999 to integrate and operate the medical insurance administration system under a single insurer, up to the present, the provisions relating to the Corporation's right of indemnity have remained substantively unchanged, with only changes in the location of the provisions or minor wording revisions, and no movement whatsoever to change them can be found.
6) The expansion of the scope of social security should be achieved through legislation, not through statutory interpretation.
It appears that the Majority Opinion seeks to limit the scope of the Corporation's subrogation in order to more thoroughly protect the beneficiary. However, an interpretation such as that of the Majority Opinion does not produce a result consistent with the basic legislative purpose of the National Health Insurance Act. If one wishes to strengthen the social security function of health insurance, rather than expanding, at the burden of the insurance finances, the scope of damages that a negligent beneficiary may recover, it would be a far more effective and appropriate means to improve the universal level of medical care that all beneficiaries can be guaranteed regardless of their degree of fault, by lowering the beneficiary's co-payment or expanding the scope of medical treatment subject to insurance benefits.
Furthermore, the extent to which a beneficiary may enjoy the benefits of social insurance must be carefully determined by comprehensively considering various social policy factors, such as the socio-economic conditions, the state of the insurance finances, the amount of insurance premiums that would increase as the scope of coverage expands, and the allocation of resources and risks in relation to the private sector, including private insurance, and ultimately must be determined through legislation that has undergone democratic procedures such as hearing and coordinating the opinions of interested parties. This is the proper implementation of the constitutional decision that distinguishes between the systems of legislation and adjudication. Even if adherence to the existing legal principle does not fit the socio-economic circumstances, one should refrain from expanding the scope of social security through interpretive theory, as the Majority Opinion does, beyond the bounds of established precedent or the natural textual interpretation of the statute.
다. As noted above, in determining the amount of the Plaintiff's damages claim relating to medical expenses already incurred, the court below first applied comparative negligence to the Plaintiff's total medical expenses already incurred, and then deducted the full amount of the portion borne by the Corporation. This determination by the court below is in accordance with the prior Supreme Court precedent, and there is no error therein, such as a misunderstanding of the legal principle concerning the right of indemnity under the National Health Insurance Act, as argued in the grounds of appeal. Accordingly, the Plaintiff's appeal, including this portion, should all be dismissed.
For the foregoing reasons, we express our dissent from the Majority Opinion.
7. Supplementary Opinion of Justice Park Sang-ok and Justice Min Yu-suk concurring with the Majority Opinion
가. We wish to examine the impact that the change in the legal principle on the issue in this case will have on judicial practice, and to present the litigation-related and institutional matters to be supplemented in accordance with the new legal principle.
Even under the changed legal principle, there is no change in the scope of damages that the tortfeasor must bear. The difference lies in whether the victim or the Corporation shall bear "the amount corresponding to the victim's percentage of fault," among the amount borne by the Corporation in providing the insurance benefits. Under the prior precedent, the Corporation could subrogate the full amount borne by the Corporation, including this portion; however, under the changed precedent, the Corporation may no longer subrogate this portion, and it will ultimately be borne by the Corporation. Even under the new legal principle, judicial practice and related systems must be operated so that the National Health Insurance, as a social insurance, and private insurance can harmoniously perform their respective functions in their respective spheres.
나. We now examine how the method of calculating damages or indemnity amounts changes under the new legal principle in related litigation.
1) Medical care benefits under health insurance are provided in the form of benefits in kind, such as medical examination and treatment, through medical care institutions (see Article 41 of the National Health Insurance Act). Where a victim, after receiving medical care benefits, claims damages against the tortfeasor, the method of calculating the amount of the victim's damages claim for medical expenses already incurred changes.
Under the prior Supreme Court precedent, the amount of damages for medical expenses already incurred was calculated by first determining the total medical expenses relating to the medical care benefits (the sum of the co-payment and the amount borne by the Corporation), applying comparative negligence thereto, and then deducting the full amount borne by the Corporation that the Corporation could subrogate ("total medical expenses × the tortfeasor's liability ratio − full amount borne by the Corporation"). Under the new legal principle, however, henceforth it suffices to determine only the co-payment actually borne by the victim (which is equal to the total medical expenses less the amount borne by the Corporation), and then multiply this by the tortfeasor's liability ratio, to calculate the amount of damages for medical expenses already incurred ("co-payment × the tortfeasor's liability ratio"), without the need to examine the amount of total medical expenses or to go through the process of deducting the amount borne by the Corporation.
2) Where, after the victim has received medical care benefits, the Corporation subrogates the victim pursuant to Article 58(1) of the National Health Insurance Act and claims indemnity against the tortfeasor or the tortfeasor's liability insurer, the method of calculating the amount of indemnity also changes.
Under the prior Supreme Court precedent, "the full amount borne by the Corporation" was recognized as the Corporation's indemnity, within the limit of the tortfeasor's liability for medical expenses. Under the new legal principle, however, henceforth "the amount borne by the Corporation multiplied by the tortfeasor's liability ratio" should be calculated as the Corporation's indemnity.
다. We now examine matters requiring attention in the trial of related litigation under the new legal principle.
1) In litigation in which a victim claims damages (= co-payment × tortfeasor's liability ratio) against a tortfeasor and litigation in which the Corporation claims indemnity (= amount borne by the Corporation × tortfeasor's liability ratio) against a tortfeasor, "the tortfeasor's liability ratio" (which is equal to the ratio remaining after setting off the victim's percentage of fault) must be determined consistently and uniformly. This is because it would not be desirable for the tortfeasor's liability ratio regarding the same accident to be determined differently in the two proceedings. However, whereas in the victim's damages litigation, the victim, as the party to the accident, can actively assert and prove matters, in the Corporation's indemnity litigation, the Corporation is not a party to the accident, and given the practical limitations in responding to numerous small-amount indemnity suits, it may be difficult for the Corporation to actively collect litigation materials such as the circumstances of the accident and to assert and prove the tortfeasor's liability ratio. In light of this, the following points should be noted.
2) Where a victim, before receiving insurance benefits, first claims future medical expenses against the tortfeasor and, while such litigation is pending, receives insurance benefits from the Corporation, since part of the claim for damages for medical expenses, which is the subject matter of the litigation, is transferred to the Corporation, the Corporation, as successor, may participate in the existing litigation or take over the litigation pursuant to Articles 81 and 82 of the Civil Procedure Act (민사소송법). Where the victim's damages litigation and the Corporation's indemnity litigation are proceeding as separate cases in the same court, the court needs to exercise its discretion in the exercise of its power to direct litigation, such as consolidating the hearings of the two proceedings or conducting parallel hearings, so that the tortfeasor's liability ratio may be determined uniformly.
3) Where the Corporation's indemnity litigation commences first and the Corporation fails to actively assert and prove the tortfeasor's liability ratio as described above, resulting in a lower determination of the tortfeasor's liability ratio, this may have a de facto negative effect on the victim's subsequent damages litigation against the tortfeasor. Accordingly, the Corporation should induce the victim to pursue the damages litigation together and file a motion for consolidation or parallel hearing, or, where this is not possible, should conduct the litigation by thoroughly collecting relevant evidentiary materials, and it is desirable that the court hearing the indemnity litigation also thoroughly examine and determine the tortfeasor's liability ratio, taking into account the effect this may have on the victim's subsequent damages litigation. Furthermore, it is desirable that the court hearing the victim's damages litigation after the conclusion of the Corporation's indemnity litigation carefully examine, in light of the foregoing, whether the tortfeasor's liability ratio recognized in the indemnity litigation was appropriately calculated.
4) Under the new legal principle, the amount that the Corporation may recover by way of indemnity from the tortfeasor, etc. is reduced. As mentioned in the Majority Opinion, this is intended to enable the victim, at the burden of the insurance finances, to receive additional compensation for damages to that extent, and care must be taken to ensure that this does not result in a benefit solely to the tortfeasor or the tortfeasor's liability insurer. In this respect as well, the court hearing the indemnity litigation is required to carefully examine "the tortfeasor's liability ratio" through the exercise of its power to direct litigation.
라. We also examine the areas in which the laws and systems relating to health insurance need to be supplemented in connection with the new legal principle.
1) The Majority Opinion changes the prior precedent, which viewed the scope of the Corporation's subrogation as the full amount borne by the Corporation at the time of providing insurance benefits, on the ground that this prior legal principle does not conform to the purport of the National Health Insurance Act, which provides insurance benefits regardless of the victim's fault, and that, in particular, where damage occurs due to concurrent fault of the victim, it departs from the original purport of the law, which recognizes the Corporation's right of indemnity in order to prevent double recovery by the victim and evasion of liability by the tortfeasor, resulting in the unjust consequence that the victim cannot recover the damage, and this change is made to correct that injustice.
As pointed out in the Dissenting Opinion, if the scope of the Corporation's subrogation is reduced as a result of the change in precedent, the finances of health insurance may deteriorate to that extent, which raises concerns that this may lead to a reduction in insurance benefits or an overall increase in insurance premiums. Accordingly, where a third party's tortious act is involved, it is necessary, if the victim has received insurance benefits, for the Corporation to exercise its right of indemnity without omission, thereby preventing the third party's evasion of liability while minimizing the adverse impact on the insurance finances.
2) Take, for example, traffic accidents, which commonly occur in practice. Where a victim is injured in an automobile traffic accident, the victim may request the tortfeasor's insurance company to pay directly to the medical institution the insurance money corresponding to the automobile insurance medical fee schedule, in which case the insurance company must notify the medical institution of whether it intends to make such payment and the limit of such payment (Articles 10 and 12 of the Guarantee of Automobile Accident Compensation Act (자동차손해배상 보장법); in practice, this is referred to as a "payment guarantee"). Even where a victim begins receiving treatment under a "payment guarantee" from the tortfeasor's insurance company, there are cases in which, once the guaranteed limit is exceeded, the victim thereafter receives treatment through health insurance. Meanwhile, a victim may also, at his or her own choice, receive treatment through health insurance without relying on the payment guarantee of the tortfeasor's insurance company (Korea does not have a system giving priority to either automobile insurance or health insurance). In this manner, even where damage occurs involving a third party's tortious act, if the Corporation is unable to exercise its right of indemnity because, for example, it is unaware of that fact, the tortfeasor or the insurer ultimately benefits from evading liability for damages, while the Corporation ultimately bears the burden.
3) In such cases, in order for the Corporation to exercise its right of indemnity against the tortfeasor or the insurer, it must be able to know that the case arose from a third party's act. Article 28 of the Enforcement Rule of the National Health Insurance Act (국민건강보험법 시행규칙) provides, in connection with the right of indemnity under Article 58 of the National Health Insurance Act, that where the cause of insurance benefits is a third party's act, the insured person must submit a related notice to the Corporation without delay, thereby imposing a duty of notification on the insured person. Furthermore, Article 4 of the Rule on Standards for National Health Insurance Medical Care Benefits (국민건강보험 요양급여의 기준에 관한 규칙) (Ministry of Health and Welfare Ordinance No. 773) provides that where a case is determined to fall under Article 58(2) of the National Health Insurance Act (insurance benefits provided after damages have been paid), the medical care institution must inquire of the Corporation without delay as to whether benefits are restricted, and must comply with the Corporation's determination as to whether benefits are restricted once the Corporation notifies the medical care institution of such determination, thereby imposing a duty of inquiry on the medical care institution. However, there is no provision on the effect of a violation of these duties, in particular no provision for sanctions for such violation, and it appears that such notification is not being effectively made.
It is necessary to improve the relevant systems so that the Corporation's exercise of its right of indemnity may be effectively carried out, such as by establishing sanctions for violations of these duties of notification and inquiry, and by diversifying those obligated to give notice under Article 58(1) of the National Health Insurance Act (indemnity following the provision of insurance benefits) to include not only the insured person but also medical institutions, etc.
마. Where the Supreme Court changes a previously established legal principle, it must proceed cautiously, as this may undermine legal stability. It must also be considered that, under the changed legal principle, there is a concern that the scope guaranteed by the National Health Insurance, as a social insurance, may be expanded beyond what is necessary into the domain that should be served by private insurance. It is likewise the role of the courts to prevent the concerned side effects that may arise along with the changed legal principle, and to ensure that the purport of the changed legal principle is harmoniously realized in reality through judicial practice.
The foregoing sets forth the Supplementary Opinion concurring with the Majority Opinion.
Chief Justice Kim Myeong-su (Presiding Justice), Justice Park Sang-ok (Justice in Charge), Justice Lee Ki-taek, Justice Kim Jae-hyung, Justice Park Jung-hwa, Justice Ahn Cheol-sang, Justice Min Yu-suk, Justice Kim Sun-soo, Justice Lee Dong-won, Justice Noh Jeong-hee, Justice Kim Sang-hwan, Justice Noh Tae-ak, Justice Lee Heung-gu