In a case where Eul, who entered into an automobile insurance contract with Gap insurance company, was treated by Byung in the medical care institution because Byung was shocked by automobiles, and the National Health Insurance Corporation provided Byung with insurance benefits, and sought indemnity from Byung, the case holding that the damage liability for non-benefit treatment expenses of Byung out of the total medical treatment does not include the scope of the damage liability which the National Health Insurance Corporation can subrogate.

In a case where Eul insurance company Eul, which entered into an automobile insurance contract with Gap insurance company, suffered medical treatment from Byung, while the National Health Insurance Corporation provided medical care benefits to Byung, and sought reimbursement from Byung, the case holding that the damage claim of Byung's non-benefit treatment costs among the total medical care costs does not include the scope of damage claim that can be subrogated by the National Health Insurance Corporation, in light of the fact that the victim's non-benefit treatment costs are not in a mutually complementary relationship, since non-benefit treatment costs are not in a mutually complementary relationship with the health care benefits provided by the National Health Insurance Corporation, even if the victim's damage claim for non-benefit treatment costs is in a relationship with the insurance benefits of the National Health Insurance Corporation, even if the victim's damage claim for non-benefit treatment costs is not in a mutually complementary relationship with the insurance benefits of the National Health Insurance Corporation, since it cannot be viewed as a damage claim for the same reason as the insurance benefits of the National Health Insurance Corporation.

Articles 41(1) and (3) (see current Article 41(4)) and 58(1) of the former National Health Insurance Act (Amended by Act No. 13985, Feb. 3, 2016); Article 87(1) of the Industrial Accident Compensation Insurance Act

National Health Insurance Corporation

Samsung Fire and Marine Insurance Co., Ltd. (Attorney Ansan Jae-sik et al., Counsel for the plaintiff-appellant)

Incheon District Court Decision 2013Gau71407 decided July 3, 2014

May 24, 2016

1. Paragraph 1 of the judgment of the court of first instance, including the plaintiff's claim expanded in the trial, is amended as follows.

A. The Defendant shall pay to the Plaintiff 4,114,802 won with 5% interest per annum from October 1, 2013 to June 14, 2016, and 20% interest per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 13,126,840 won and 5,308,570 won with 5% interest per annum from October 1, 2013 to March 13, 2014; and 20% interest per annum from the following day to the date of full payment; 7,818,270 won with 20% interest per annum from the following day to the date of full payment (the plaintiff extended its claim at the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. The Plaintiff is an insurer of the National Health Insurance that provides citizens with insurance benefits for the prevention, diagnosis, medical treatment, and rehabilitation of diseases and injury, for childbirth and death, and for the improvement of health pursuant to the National Health Insurance Act. The Defendant is an insurer that entered into an automobile insurance contract with Nonparty 1 with the content that the Defendant would compensate for damage inflicted on Nonparty 1 in the event of death or injury of a person caused by the operation of a multi-user vehicle (vehicle number omitted) owned by him/her (hereinafter “instant vehicle”). Nonparty 2 is the insured of the national health insurance conducted by the Plaintiff, who was injured by the following accidents:

B. At around 18:20 on February 8, 2012, Nonparty 1 sustained the injury of Nonparty 2, who was walking around the instant vehicle, to Nonparty 2, who was shocked by the instant vehicle in front of the Sincheon-gu Cheongcheon-si Skdong (hereinafter “instant accident”) (hereinafter “instant accident”), Nonparty 2 caused “a light view signboard accompanied by a nephical disease certificate, disability accompanied by vertebrate disease, and other spine certificate accompanied by the vertece.”

C. Nonparty 2 received treatment from a medical care institution, such as ○○○○ Hospital, △△ Hospital, △△ Hospital, △△△ Hospital, △△ Hospital, etc. due to the instant accident. From April 27, 2012 to June 30, 2015, the total medical expenses incurred as a result of the instant accident were KRW 49,436,230 [the insurance benefit cost + KRW 18,288,010 [the Plaintiff’s charges + KRW 13,126,840 + KRW 5,161,170 + Non-Party 2’s charges + KRW 31,148,20].

D. From March 22, 2012 to April 10, 2014, the Defendant paid KRW 30,195,570 in total to Nonparty 2 as insurance proceeds, including medical expenses.

[Reasons for Recognition] Unsatisfy, Entry in Gap's Evidence Nos. 1 through 4, 7 through 15 (including branch numbers), the purport of the whole pleadings

2. Acquisition and scope of the right to indemnity;

(a) Acquisition of the right to indemnity;

According to the above facts, the defendant is the insurer of the non-party 1 who caused the accident of this case, and is responsible for compensating for the damages suffered by the non-party 2 due to the accident of this case. However, since the plaintiff provided insurance benefits by having the non-party 2 receive medical treatment in the medical care institution, the plaintiff subrogated to the non-party 2's claim for damages to the non-party 2 within the limit of the expenses incurred by the plaintiff

(b) Scope of the right of indemnity;

(1) Relevant legal principles

Where a victim, who received insurance benefits under the National Health Insurance Act, claims for damages against a third party, and the victim's negligence competes with the cause of the damage, the amount of damages calculated first shall be offset by negligence, and the insurance benefits shall not be offset by negligence with respect to such deducted insurance benefits (the so-called "the theory of mutual aid after offsetting by negligence"), and where the National Health Insurance Corporation provides insurance benefits to the victim due to a tort and then subrogates the victim's damage claim against the perpetrator, the scope of subrogation is the total amount of the insurance benefits provided within the scope of damage claim (see, e.g., Supreme Court Decision 2012Da39103, Sept. 13, 2012). The foregoing legal doctrine likewise applies to cases where a king certificate contributes to the occurrence or expansion of damage, thereby deducting its contribution (see, e.g., Supreme Court Decision 2011Da39038, Dec. 13, 2012).

In addition, the purport of Article 58(1) of the National Health Insurance Act, where the National Health Insurance Corporation provided health insurance benefits under the National Health Insurance Act to a victim of a tort under the National Health Insurance Act, the purport of the National Health Insurance Corporation’s provision that the victim who received health insurance benefits should obtain double benefit from the perpetrator to the extent of the expenses incurred in providing such insurance benefits, is to prevent the victim who received double benefit. As such, the damage claim that the National Health Insurance Corporation obtains by subrogation of the victim is limited to the damage claim for the same reason as the health insurance benefits out of the total damage claim of the victim. Therefore, in cases where the victim’s negligence competes with each other due to the occurrence or expansion of damage or where the victim’s spatition has contributed to the occurrence or expansion of damage, the amount of damage claim that the National Health Insurance Corporation may claim against the perpetrator is not the total damage claim, but the amount of damage claim that the National Health Insurance Corporation may claim against the perpetrator, i.e., the amount of the insurance benefits paid to the extent that the amount deducted from negligence or contribution to the

(2) In the instant case:

(A) The victim's negligence and the degree of contribution

First, we look at the victim's negligence and the degree of contribution to the evidence.

In light of the circumstances surrounding the accident in this case, Non-party 2's negligence ratio of Non-party 1 to the accident in this case is 10%, and the fact that the accident in this case occurred, the non-party 2's negligence ratio of Non-party 2 contributed to the occurrence or expansion of damage. In full view of the following: (i) the entry of No. 1 in this case; (ii) the fact inquiry into the head of the regional headquarters of the National Health Insurance Corporation, and the overall purport of arguments on the entrustment of the examination of medical records to the head of the Singu University, Seo-gu, Seo-gu, the University, Seo-gu et al., the non-party 2 had already been treated on the side of the accident in this case over several times prior to the accident in this case; and (ii) the non-party 2 had been given medical treatment for the Gyeong-gu and spine department in this case before the accident in this case; and (iii) the 5-6 confluence change, which is a typical change.

(B) Whether the Plaintiff can obtain on behalf of the Plaintiff the damage claim for the non-benefit medical expenses

Next, it is examined whether the damage claim of the non-party 2 due to the disbursement of the non-payment costs, that is, the damage claim of the non-payment costs, is included in the scope of the damage claim that the plaintiff may subrogate.

Considering the following circumstances, it is reasonable to view that the damage claim of Nonparty 2’s non-payment treatment costs out of the total medical expenses does not include the scope of the damage claim that the Plaintiff may subrogate.

① Article 41(1) of the National Health Insurance Act provides, “The Minister of Health and Welfare shall provide medical care benefits for the illness, injury, childbirth, etc. of a policyholder and his/her dependent.” However, Article 41(3) of the same Act provides, “The Minister of Health and Welfare may exclude the subject of medical care benefits from the subject of medical care benefits when determining the criteria for medical care benefits, or for daily life, and other matters prescribed by Ordinance of the Ministry of Health and Welfare (hereinafter “the subject of non-medical care benefits”). In accordance with the above provision, the subject of medical care benefits and non-medical care benefits are distinguishable from the subject of medical care benefits provided by the Plaintiff, and the non-medical care benefits and non-medical care costs are not complementary to each other. Therefore, even if the victim’s damage claim for non-medical care costs is related to the subject of the lawsuit of the Plaintiff’s insurance benefits, the requirements for the same subject of medical care benefits do not meet the minimum requirements for the Plaintiff’s subrogation and acquisition of the victim’s damage claim for the same subject matter

② Under the National Health Insurance Act, the Plaintiff’s liability for damage from non-benefit treatment costs is not included in the claims subrogated by the Plaintiff among the total medical expenses of the victim, but the situation where the victim received health insurance benefits from the Plaintiff and received compensation again from the perpetrator and received double benefit does not occur. Therefore, such interpretation does not contravene the purport of Article 58(1) of the National Health Insurance Act.

③ If the scope of the right to indemnity is limited to the medical expenses covered by health insurance, the State is partly responsible for the costs incurred by another person’s tort, which would result in an unreasonable consequence that the perpetrator would be exempted from liability corresponding to that portion. However, even if the Plaintiff excludes the damage liability for the non-benefit treatment expenses from the right to subrogation, the perpetrator still is liable for damages to the victim for the remainder other than the damage claim acquired by the Plaintiff by subrogation, as such, the perpetrator is exempted from liability for damages. Therefore, the foregoing argument that the perpetrator is not reasonable.

④ Rather, the Plaintiff’s interpretation that the damage claim for non-benefit medical expenses can be subrogated by the Plaintiff, regardless of the provision of his/her insurance benefits, would result in the Plaintiff’s loss of the damage claim to the extent of the corresponding amount by acquiring the damage claim arising from the expense of the victim, as a matter of course, regardless of the provision of his/her insurance benefits. This would ensure the financial soundness of the national health insurance by the amount that the victim suffered by tort of the perpetrator, which is the type of social insurance, is not in line with the legislative purpose of the National Health Insurance Act that aims to contribute to the improvement of national health and the promotion of social security as a type of social insurance,

⑤ In Supreme Court Decision 2014Da206853 Decided September 10, 2015, the Supreme Court held that the upper limit of the damage claim that the National Health Insurance Corporation obtains by offsetting the amount of comparative negligence from the total amount of damage, including the damage, is not based on the insurance benefits of the National Health Insurance Corporation, since the part of the automobile insurance company’s payment guarantee received by the victim under the payment guarantee is not based on the insurance benefits of the National Health Insurance Corporation, and that the upper limit of the damage claim that the National Health Insurance Corporation obtains by offsetting the victim according to the health insurance benefits was erroneous in the misapprehension of the legal principle regarding the scope of the damage claim that the victim obtains by subrogation. In this case, the foregoing Supreme Court precedents are common in that the expenditure of the insurance company’s payment guarantee under the payment guarantee of the insurance company in question, or the expenditure of the medical expenses for

(6) Meanwhile, the main text of Article 87(1) of the Industrial Accident Compensation Insurance Act is similar to the provision on the ground of the Plaintiff’s right to indemnity, stating, “Where the Corporation has paid insurance benefits due to an act of a third party, it shall subrogate the third party to the claim for damages against the person who has received the benefits within the limit of the benefits.” Here, the Supreme Court’s firm position that “the right to claim damages against the third party of the person who has received the benefits” is limited to those of the same nature as the insurance benefits paid by the Korea Workers’ Compensation and Welfare Service (see Supreme Court Decision 2000Da454

In the case of Supreme Court Decision 2012Da41892 Decided December 26, 2013, the Supreme Court held that medical care benefits and nursing benefits under the Industrial Accident Compensation Insurance Act are all active damages, and they are items related to civil treatment costs and nursing expenses. However, even if they are related to the same treatment costs, nursing expenses, etc., there is no relationship between the existing medical care benefits and nursing expenses and future care expenses, and thus, it is impossible to subrogate the right to claim damages for future medical care costs and future care expenses based on the excess amount, because the amount of existing medical care benefits and nursing benefits exceeds the actual damages. As seen in the above, since the medical care benefits and non-medical care benefits are distinguished from those of the health care benefits and non-medical care benefits and there is no relationship between them, the attitude of the above Supreme Court decision can be invoked in this case.

(3) Sub-decisions

Therefore, the damage claim of Nonparty 2 that the Plaintiff acquired on behalf of the Plaintiff does not include the damage claim for non-payment expenses, but the amount of 4,114,802 won (i.e., comparative negligence set-off and contribution proportion deduction for the damage claim that the Plaintiff acquired on behalf of the Plaintiff (i.e., KRW 18,288,010 x 90% of the insurance benefit expenses x Nonparty 1’s contribution ratio x 25% of the instant accident x the amount of contribution to the instant accident x the amount of less than KRW 13,126,840 paid by the Corporation, barring any special circumstance, the Defendant is obligated to pay 4,114,802 won to the Plaintiff and damages for delay.

3. Judgment on the defendant's assertion

A. The assertion

① Considering the victim’s negligence and the degree of contribution to the instant accident, the Defendant paid the insurance proceeds in excess of the medical expenses to be paid to Nonparty 2, and thus the Defendant’s obligation to pay the insurance proceeds has already been extinguished. ② In addition, the Defendant acquired a claim for return of unjust enrichment equivalent to the excess insurance proceeds paid to Nonparty 2, which offsets the claim against the Defendant’s claim for medical expenses to Nonparty 2, and thus, the Plaintiff did not have any claim for medical expenses to be subrogated to the

B. Determination

(1) Relevant legal principles

Insurance benefits under the National Health Insurance Act are, in principle, provided in kind benefits that provide medical care until a disease or injury is cured by a medical care institution. Thus, when the insured undergoes medical care at a medical care institution, it is practically provided with insurance benefits, and the National Health Insurance Corporation obtains the right to indemnity against a third party within the scope of such insurance benefits. Therefore, even if the perpetrator compensates the victim for considerable damages incurred to the victim after the medical care benefit, it cannot be asserted against the National Health Insurance Corporation that exercises the right under Article 58 (1) of the National Health Insurance Act (see, e.g., Supreme Court Decisions 2009Da8263, 82640, Feb. 11, 2010; 2012Da39103, Sept. 13, 2012).

(2) In the instant case:

First, I examine the argument ①.

According to the evidence and circumstances mentioned above, the damage claim of Nonparty 2 for the total medical expenses is KRW 11,123,151 (i.e., total medical expenses 49,436,230 x 90% x the ratio of the liability of Nonparty 1 25% x the degree of contribution to the accident of this case). The defendant paid KRW 30,195,570 to Nonparty 2 as insurance money, such as medical expenses, etc. However, it is acknowledged that the insurance money, such as medical expenses, etc. paid by the defendant to Nonparty 2 was paid to the medical care institution or the non-party 2 after the medical care was provided in the medical care institution. In other words, in light of the above legal principles, even if the insurance money paid by the defendant to the non-party 2 exceeds the total amount of damage claim for the medical expenses, it cannot be asserted against the plaintiff.

Next, we examine the argument.

On the other hand, the Defendant’s claim for return of unjust enrichment arises only when it was paid to Nonparty 2 in excess of the insurance money. In this case, the Plaintiff already acquired the claim for return of unjust enrichment against Nonparty 2 as a matter of course, and thus, even if the Defendant declared an offset against Nonparty 2 by having the claim for return of unjust enrichment against Nonparty 2 as an automatic claim, the effect of the claim may not affect the Plaintiff’s claim for return of unjust enrichment.

Ultimately, each of the above arguments by the defendant is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay damages for delay calculated by the ratio of 5% per annum as stipulated by the Civil Act from October 1, 2013 to June 14, 2016, which is the date of the decision of the court below, and 20% per annum as stipulated by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, to the date of the payment of the above amount to the plaintiff.

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, it is accepted in part of the defendant's appeal and it is modified as the judgment of the court of first instance.

Judges Kim Jong-sung (Presiding Judge)