[Plaintiff, Party to the Final Appeal] Plaintiff
[Successor Intervenor to Plaintiff, Appellant] National Pension Service (Attorneys Kim Jae-hee and 1 other, Counsel for the Successor Intervenor)
[Defendant, Appellee] Korea Taxi Business Cooperative Federation (Attorney Jeong Myeong-seok, Counsel for the Defendant)
[Lower Court Judgment] Seoul Central District Court Judgment 2020Na85513, decided November 4, 2021
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Successor Intervenor to the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. Outline of the Case
According to the reasoning of the lower court's judgment and the record, the following facts may be found.
A. On January 24, 2016, while the non-party was driving a taxi straight through an intersection on Jungang-ro in Sacheon-si, the taxi's front passenger door struck the front wheel of a motorcycle driven by the Plaintiff, which had entered the intersection from the right side of the taxi's direction of travel.
B. As a result of the above accident, the Plaintiff suffered disabilities including quadriplegia, and thereby incurred lost income damages of KRW 282,085,725. The liability ratio of the non-party who was driving the taxi is 60%.
C. The Defendant is a mutual aid business operator that entered into a mutual aid contract with respect to the above taxi, and the Successor Intervenor to the Plaintiff is a corporation established to carry out the national pension business under delegation from the Minister of Health and Welfare pursuant to the National Pension Act (국민연금법).
D. The Successor Intervenor to the Plaintiff paid the Plaintiff disability pension benefits totaling KRW 26,537,850 for 60 months, from the August 2016 installment through the July 2021 installment, and this amount does not exceed the Plaintiff's lost income damages for the same period.
2. Issue in This Case
A. The issue in this case concerns the scope of subrogation where the National Pension Service (hereinafter, in Sections 2 through 4, referred to as the "Service"), the Successor Intervenor to the Plaintiff, having paid disability pension benefits to the beneficiary who is the victim of the tort, subrogates to the beneficiary's right to claim damages against the third party pursuant to Article 114(1) of the National Pension Act.
B. Where a victim who has received disability pension benefits under the National Pension Act claims damages against the tortfeasor, and the victim's own negligence contributed to the occurrence of the damage, the question arises whether, in calculating the amount of damages, one should follow (①) the method of first calculating the victim's damages, then applying comparative negligence offset to determine the tortfeasor's amount of damages, and then deducting the full amount of the pension benefits from that amount of damages (the "offset after comparative negligence" method), or (②) the method of first deducting the full amount of the Service's pension benefits from the victim's damages and then applying comparative negligence offset (the "comparative negligence after offset" method). Depending on which method is followed, the scope within which the Service may subrogate to the victim's right to claim damages against the tortfeasor is determined to be either "the full amount of the pension benefits" or limited to "the amount corresponding to the tortfeasor's ratio of liability among the pension benefits."
3. Determination on the Issue
A. The Supreme Court has traditionally held that where a victim who has received disability pension benefits or survivor pension benefits under the National Pension Act claims damages against the tortfeasor, and the victim's own negligence contributed to the occurrence of the damage, comparative negligence offset should first be applied to the calculated amount of damages, and the pension benefits should then be deducted therefrom, and that where the Service, having paid pension benefits to the victim of a tort, subrogates to the victim's right to claim damages against the tortfeasor, the scope of such subrogation is the full amount of the pension benefits paid, within the limit of the right to claim damages (the "offset after comparative negligence" method. Supreme Court Decision 2007Da10245, decided July 27, 2007; Supreme Court Decision 2009Da100920, decided May 13, 2011, etc.).
B. However, taking into comprehensive account the language and legislative purpose of Article 114(1) of the National Pension Act, which recognizes the Service's subrogation to the right to claim damages; the purpose of the national pension and its social security character; the need for balance with the benefits and legal status that a pension benefit beneficiary would have enjoyed had the tort not occurred; the balancing of interests between the beneficiary and the Service; the character of the right to receive pension benefits; and the change in precedent concerning the interpretation of provisions of the National Health Insurance Act (국민건강보험법) and the Industrial Accident Compensation Insurance Act (산업재해보상보험법), it should be held that where a victim who has received pension benefits under the National Pension Act claims damages against the tortfeasor, and the victim's own negligence contributed to the occurrence of the damage, the amount of damages should be calculated by the "comparative negligence after offset" method, i.e., first deducting the amount of the pension benefits from the victim's damages and then applying comparative negligence offset; and that where the Service, having paid pension benefits to the victim of a tort, subrogates to the victim's right to claim damages against the tortfeasor pursuant to Article 114(1) of the National Pension Act, the scope of such subrogation is not the full amount of the pension benefits, limited to the amount of the tortfeasor's damages, but is limited to the amount thereof corresponding to the tortfeasor's ratio of liability, and the Service may not subrogate to the remaining amount (the amount of the pension benefits corresponding to the victim's ratio of negligence); this remaining amount should 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 the pension benefits. The detailed reasons are as follows.
1) Article 114(1) of the National Pension Act provides that where the Service pays pension benefits to a victim because a cause for payment of disability pension or survivor pension benefits arose due to the act of a third party, the Service subrogates to the right to claim damages against the third-party tortfeasor "within the scope of the amount of such benefits." This provision merely sets an upper limit on the right to claim damages to which the Service may subrogate, without specifically identifying the particular scope of such subrogation. Nor does it expressly address whether, in a case such as this one where the victim's right to claim damages against the tortfeasor is limited due to comparative negligence offset or other reasons, the Service may subrogate to the full amount of the pension benefits.
As the language of Article 114(1) of the National Pension Act alone does not make clear the scope within which the Service may subrogate, it is not necessarily the case that the amount of damages to which the Service may subrogate to the victim under this provision must be regarded, as under the previous Supreme Court precedent, as the "full amount" of the pension benefits borne by the Service. The courts may reasonably determine, based on comprehensive consideration of the legislative purpose and objective of the National Pension Act and its individual provisions, the character of the right to receive pension benefits, and the harmony or concept of equity within the legal order as a whole, the standard by which to calculate the amount, among the pension benefits, to which the Service subrogates.
2) The National Pension Act has as its purpose contributing to the stabilization of the lives of citizens and the promotion of their welfare by providing pension benefits in the event of old age, disability, or death of citizens (Article 1). The national pension system, funded by pension contributions paid by participants, is a social insurance system that guarantees citizens' income, etc., by addressing social risks arising to citizens by means of insurance (Article 3, Subparagraphs 1 and 2 of the Framework Act on Social Security (사회보장기본법)), and is a form of social security established by the State to guarantee the minimum living standard so that citizens may lead a life worthy of human beings. Pension benefits under the National Pension Act have the character of compensating, from the State's position as insurer, for the beneficiary's loss of income due to old age or disability, or loss of support due to death.
The National Pension Act provides that disability pension benefits may not be paid where a participant or former participant intentionally causes an illness, injury, or the accident giving rise thereto, and thereby suffers a disability (Article 82(1)), thereby recognizing the Service's discretion as to whether to pay pension benefits. This is intended to achieve the purpose of the social security system by ensuring that, even where the participant bears some responsibility for the occurrence of the cause for payment of pension benefits, if the degree of such responsibility is not so great as to be contrary to the public nature of social insurance, pension benefits are nonetheless paid so that the participant is not excluded from the protection of the national pension.
This legislative purpose of the National Pension Act and the social security character of the national pension system must be sufficiently taken into account also in determining the scope of subrogation under Article 114(1) of the National Pension Act.
3) The right of a victim who has suffered a disability, etc., as a result of a tort, to claim damages against the tortfeasor is grounded in the principle of fault-based liability, and thus differs in legal character from the right to receive disability pension benefits, which has a social security character. Nevertheless, since both serve the function of compensating the damage of the victim (beneficiary), Article 114(1) of the National Pension Act is an adjustment provision intended to prevent the victim who has received pension benefits from obtaining a double benefit by additionally receiving damages from the tortfeasor, and to prevent the tortfeasor from being relieved of liability for damages as a result of the victim's receipt of pension benefits.
Where the victim's own negligence or pre-existing condition, etc., contributed to the occurrence of the damage, the tortfeasor bears liability for damages only within a limited scope, as determined through comparative negligence offset, etc. In this situation, the extent to which the Service, having paid pension benefits, may subrogate to the victim's right to claim damages determines the "amount of damage remaining uncompensated for the victim." If, as under the previous Supreme Court precedent, the scope of the Service's subrogation is regarded as the full amount of the pension benefits borne by the Service, the amount of damage left uncompensated for the victim becomes greatest; conversely, reducing the scope of the Service's subrogation correspondingly reduces the amount of damage left uncompensated for the victim.
However, even if the scope within which the Service may subrogate to the victim is interpreted in the manner most favorable to the victim, the victim may claim damages against the tortfeasor only within the scope of the damage remaining after receipt of the pension benefits, and the Service may exercise its right of subrogation as to the remainder of the tortfeasor's amount of damages; accordingly, no issue arises of double benefit to the victim or of the tortfeasor being relieved of liability for damages. Therefore, it does not necessarily follow, from the purpose of Article 114(1) of the National Pension Act in recognizing the Service's subrogation to the right to claim damages, that the conclusion under the "offset after comparative negligence" method, which is least favorable to the victim, must be adopted.
Meanwhile, Article 114(1) of the National Pension Act also includes the purpose of securing the Service's pension finances, and it is true that expanding the scope within which the Service may subrogate to the victim assists in securing pension finances. However, in light of the legislative purpose of the National Pension Act and the social security character of the national pension system discussed above, securing pension finances cannot be regarded as a matter that must necessarily be given priority over the interests of the beneficiary who is the victim; therefore, interpreting Article 114(1) of the National Pension Act in the manner most favorable to the Service and least favorable to the victim, for the purpose of securing pension finances, cannot be justified.
4) Considering the balance with the benefit of receiving pension benefits, and the corresponding legal status, that the beneficiary would have enjoyed had the tort not occurred, as well as the balancing of interests between the beneficiary and the Service, there is a need to reasonably limit the scope of the Service's subrogation.
As noted above, the National Pension Act recognizes discretion as to whether to pay pension benefits, so that even where a disability arises from an act attributable to the intentional conduct of the beneficiary of pension benefits, the beneficiary's damage may be compensated for at the Service's expense. Accordingly, where an accident occurs entirely due to the beneficiary's own negligence, without the involvement of any third party, the beneficiary may enjoy the benefit of receiving pension benefits, and as a result, the beneficiary may be compensated for lost income damage up to the amount of the disability pension borne by the Service. If so, where the damage arises from a combination of a third party's tort and the beneficiary's own negligence, it is reasonable to regard at least "the amount of the pension benefits corresponding to the beneficiary's ratio of negligence" as a cost that the Service, as insurer, must bear for the beneficiary, and as a benefit that the beneficiary may legitimately enjoy. The amount of the pension benefits corresponding to the tortfeasor's ratio of liability is equivalent to the Service having paid, on the tortfeasor's behalf, a portion that the tortfeasor should originally have borne, and thus the Service may subrogate to the victim (beneficiary) and seek reimbursement therefor from the tortfeasor as to that portion; however, to hold that the Service may subrogate even to the amount corresponding to the victim's ratio of negligence, beyond that portion, would in substance result in shifting onto the victim a portion that the Service should bear for the victim's benefit. For this reason as well, in calculating the amount of damages owed by the tortfeasor to the victim, it is appropriate to follow the "comparative negligence after offset" method, whereby the amount of the pension benefits is first deducted from the amount of damages and comparative negligence offset is then applied, and the scope of the Service's subrogation under Article 114(1) of the National Pension Act should be regarded as limited, not to the full amount of the pension benefits, but to the amount thereof corresponding to the tortfeasor's ratio of liability.
5) The finances of the national pension receive State treasury support with respect to the Service's management and operating expenses, etc., but most of the fund is formed from pension contributions paid by participants. Accordingly, the right to receive pension benefits has the character of consideration for pension contributions, and also has the economic utility of compensating for the financial burden imposed on a participant by an insured event, and thus has the character of a property right.
Meanwhile, the national pension system, as a form of social insurance, also performs an income redistribution function. The National Pension Act makes pension enrollment compulsory, sets individual pension contributions in proportion to the participant's income rather than the probability of occurrence of an insured event or the amount of pension benefits, and does not necessarily pay pension benefits strictly in proportion to the pension contributions paid by the participant. Considering further that pension finances receive some State treasury support, it is difficult to regard pension benefits as being in a simple relationship of consideration with pension contributions.
In determining the scope within which the Service may subrogate to the victim under Article 114(1) of the National Pension Act, the various characters of the right to receive pension benefits described above must be comprehensively taken into account. Interpreting the scope of the Service's subrogation in the manner least favorable to the victim, as under the previous Supreme Court precedent, unduly restricts the right to receive pension benefits, which is a property right of the participant, and is therefore improper. Considering the various characters of the right to receive pension benefits, it accords with the principle of equity, and most harmoniously resolves the conflicting interests, to hold that the scope within which the Service may subrogate to the victim is limited to the portion of the pension benefits corresponding to the tortfeasor's ratio of liability, and that the victim may enjoy the benefit of receiving pension benefits to the extent of the portion corresponding to the victim's own ratio of negligence.
6) The Supreme Court en banc Decision 2018Da287935, decided March 18, 2021, held that where a victim who has received insurance benefits from the National Health Insurance Service under the National Health Insurance Act claims damages against the tortfeasor, and the victim's own negligence contributed to the occurrence of the damage, the amount of damages relating to medical expenses already incurred should be calculated by first deducting the amount borne by the Service from the total amount of damage for medical expenses already incurred and then applying comparative negligence offset, and that where the National Health Insurance Service, having provided insurance benefits to the victim of a tort, subrogates to the victim's right to claim damages against the tortfeasor for medical expenses already incurred, the scope of such subrogation is not the full amount borne by the Service, limited to the tortfeasor's amount of damages, but is limited to the amount thereof corresponding to the tortfeasor's ratio of liability, and that the National Health Insurance Service may not subrogate to the remaining amount (the amount borne by the Service corresponding to the victim's ratio of negligence), thereby changing the previous precedent.
In addition, the Supreme Court en banc Decision 2021Da241618, decided March 24, 2022, changed the previous precedent, in the same vein as the above en banc Decision concerning national health insurance, regarding the method of calculating the amount of damages, and the scope within which the Korea Workers' Compensation & Welfare Service, having provided insurance benefits to an injured worker, may subrogate to the injured worker's right to claim damages against a third party, in a case where an injured worker who received insurance benefits from the Korea Workers' Compensation & Welfare Service under the Industrial Accident Compensation Insurance Act claims damages against a third party, and the injured worker's own negligence contributed to the occurrence of the damage.
National health insurance, industrial accident compensation insurance, and the national pension are all social insurance systems having a social security character; accordingly, in determining the method of calculating the amount of damages to be borne by a third party, and the scope of the relevant Service's subrogation, in cases where a cause for payment of insurance benefits or pension benefits arises due to an act of a third party and such benefits are paid, and where the victim's own negligence contributed to the occurrence of the damage, there is a need for a unified interpretation within the legal order.
4. Change of Precedent
Contrary to the above, Supreme Court Decision 2007Da10245, decided July 27, 2007, and Supreme Court Decision 2009Da100920, decided May 13, 2011, and other Supreme Court decisions to the same effect, which held that where a victim who has received disability pension benefits or survivor pension benefits under the National Pension Act claims damages against the tortfeasor, and the victim's own negligence contributed to the occurrence of the damage (the same applies where a pre-existing condition contributed to the damage), comparative negligence offset, etc., should first be applied to the amount of damages, and the full amount of the pension benefits should then be deducted therefrom, with no further comparative negligence offset, etc., being applied to the deducted pension benefits, and that where the Service, having paid pension benefits to the victim of a tort, subrogates to the victim's right to claim damages against the tortfeasor, the scope of such subrogation is the full amount of the pension benefits, within the limit of the amount of damages, are hereby all changed to the extent they conflict with the views expressed in this Judgment.
5. Determination on This Case
Applying the foregoing legal principles to the facts examined above, where the Successor Intervenor to the Plaintiff, having paid disability pension benefits to the Plaintiff, the victim of the tort, subrogates to the Plaintiff's right to claim damages against the tortfeasor pursuant to Article 114(1) of the National Pension Act, the scope of such subrogation is limited to KRW 15,922,710 (= KRW 26,537,850 × 60%), which is the amount corresponding to the tortfeasor's ratio of liability (60%) among the disability pension benefits of KRW 26,537,850, and the Successor Intervenor to the Plaintiff may not subrogate to the remaining KRW 10,615,140 (the amount of the pension benefits corresponding to the Plaintiff's ratio of negligence); this remaining amount is ultimately borne by the Successor Intervenor to the Plaintiff for the benefit of the Plaintiff, who remains uncompensated for that portion of the damage even after receiving the pension benefits.
The lower court's determination to this effect is proper, and there is no error therein, as alleged in the grounds of appeal, of misapprehending the legal principles concerning the scope of subrogation to the right to claim damages under Article 114(1) of the National Pension Act, which affected the judgment.
6. Conclusion
Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This Judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Chief Justice Cho Hee-dae (Presiding Justice), Justice Kim Seon-su, Justice Lee Dong-won, Justice Noh Jeong-hee, Justice Kim Sang-hwan, Justice Noh Tae-ak, Justice Lee Heung-gu, Justice Oh Kyung-mi, Justice Oh Seok-jun, Justice Seo Kyung-hwan, Justice Kwon Young-jun, Justice Um Sang-pil (Justice in Charge), Justice Shin Suk-hee