In a case where Party A requested Party B, a equipment business operator, to put waste bags, etc. left the factory site owned by Party B, and asked Party B to put the scene at the time of the above work, and requested Party B to put them into work; Party B paid the injury to Party B, the National Health Insurance Corporation, the National Health Insurance Corporation, etc., due to an accident related to the digging season owned by Party B, while performing the work to put the waste bags at the above factory site, and sought reimbursement for the amount of damages pursuant to Article 58(1) of the National Health Insurance Act against Party B, who entered into the comprehensive business automobile insurance contract with Party B and B, the case holding that Party C is liable to compensate Party B for only the amount equivalent to the rate of negligence on the ground that Party B was also found to have been negligent in the above accident, on the ground that Party C was also deemed to have been at fault in the above accident, on the ground that only the claim for damages regarding the amount of

After requesting that Party A, who is a equipment business operator, made a request that Party B, be placed neglected waste bags, etc. neglected in the equipment business operator Gap, provided the scene at the time of the above work and requested Party B to undergo work. After that, Party B paid the injury to Party B, the National Health Insurance Corporation, the National Health Insurance Corporation, etc., for the accident related to the cirrization season owned by Party B, while performing the work of placing the waste vapor with Party B, etc., and sought reimbursement for the amount of indemnity under Article 58(1) of the National Health Insurance Act against Party B and Party B, who concluded the comprehensive business automobile insurance contract with Party B.

A person Eul caused the above accident and the company is liable for the damages suffered by Byung as the insurer of the above so the Corporation is entitled to recover the expenses required under Article 58(1) of the National Health Insurance Act. However, in light of the various circumstances revealed in the relevant civil and criminal judgment, Byung is also found to be negligent by 20%. Article 58(1) of the National Health Insurance Act only intends to resolve the problem of double gains that may arise when the victim received insurance benefits from the Corporation and continues to claim damages against the perpetrator corresponding thereto, and further, it cannot be interpreted as a provision to prevent the victim from receiving the compensation by including the amount equivalent to the ratio of fault of the perpetrator in the actual treatment expenses actually paid by the victim in the scope of the compensation. Thus, the Corporation can only claim damages for the amount equivalent to the ratio of negligence between the amount of damages suffered by Byung and the amount equivalent to the ratio of negligence.

Article 58 (1) of the National Health Insurance Act

National Health Insurance Corporation (Law Firm Kim Jong-sik et al., Counsel for defendant-appellant)

DB Insurance Co., Ltd. and one other (Law Firm Unauthorized Law et al., Counsel for the plaintiff-appellant)

November 22, 2018

1. The Defendants shall jointly and severally pay to the Plaintiff KRW 35,141,344 and KRW 13,192,52,520 among them, from December 25, 2013; KRW 12,967,792 from November 17, 2014; KRW 4,043,936 from November 17, 2015; KRW 730,968 from May 31, 2016; KRW 74,00 from December 22, 2016; KRW 43,968 from March 14, 2017; KRW 3,028 from October 18, 2018; and KRW 3,028 from the date of full payment to the date of full payment; and KRW 5,000 from the date of full payment to the date of full payment, respectively.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. One-fifth of the costs of lawsuit is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

Defendants shall jointly and severally pay to the Plaintiff KRW 43,926,680 and KRW 16,490 among them, and KRW 16,650 from December 25, 2013; KRW 16,209, and KRW 740 from December 17, 2014; KRW 5,054,920 from November 17, 2015; KRW 913,710 from May 31, 2016; KRW 930,010 from December 22, 2016; KRW 542,460 from March 14, 2017 to October 18, 2018; and KRW 15% from each annual interest rate from October 18, 2018 to the date of full payment; and KRW 15% from each annual interest rate from October 15, 2017 to the date of full payment.

1. Facts of recognition;

A. The relationship between the parties

1) Nonparty 1 is Nonparty 2’s deceptive act, and Nonparty 2 is the owner of the instant coar in the vicinity of ○○-gu △△-dong, Jeonju-si, △△-dong (hereinafter “instant coar”).

2) Defendant 2 is the owner of the excavation search machine (automobile registration number omitted) (hereinafter “instant excavation search machine”). Defendant D non-life insurance Co., Ltd. (hereinafter “Defendant Co., Ltd.”) concluded an automobile comprehensive contract (hereinafter “instant insurance contract”) with Defendant 2 on June 20, 2012, which covers large damages I and II as insurance company.

(b) An accident;

1) Nonparty 2 (the age of 77 at the time of the accident seen below) leased the instant factory site to a high-water commercial person. Since high-water business operators did not communicate with them as they are, it was left alone in the instant factory site. Accordingly, Nonparty 2 asked Nonparty 3, who is in the relationship of the death, as a driver, to change the garbage meter, but Nonparty 3 introduced and introduced the equipment business operator, because it is difficult for Nonparty 3 to use the garbage meter as its own equipment. Moreover, Nonparty 3 requested to contact Defendant 2 to change the garbage meter, etc. he stored in the instant factory site.

2) Upon Nonparty 2’s request, Nonparty 1 asked Nonparty 2 to see the day of Nonparty 2 on behalf of the aged Nonparty 2. Nonparty 1, upon Nonparty 2’s request, directed the site at the time of the work to put the garbage vapor, etc. of the instant emptyter, and undergo the work. On March 17, 2013, via telephone contact with Defendant 2, Nonparty 1 requested to “the instant excavation searcher with the instant thrower at the morning on March 18, 2013.”

3) At around 08:30 on March 18, 2013, Defendant 2 started the work of cutting down the garbage bags by gathering the waste bags into the instant factory site, along with Nonparty 1, dump truck article, and niters. Nonparty 1, around 09:00, at around 09:00, loaded the relevant tower with the ropes to set off the freezing tower, and then dump the relevant rope back back to cut off. Defendant 2 dumpeded Nonparty 1 to set off the rope to set up the line on the platform, and dumped Nonparty 1 0.5 meters away from the above tower to set up the line to set up the center on the platform. However, while Nonparty 1 was cut off, Nonparty 2 fell from approximately 2.5m to cut off, resulting in the instant accident (hereinafter “instant accident”).

4) After the instant accident occurred, Nonparty 1 was sent back to the 119 first-aid hospital, and Defendant 2 continued to contact Nonparty 2 and suspended work on the ground that Nonparty 2 would no longer work.

5) Nonparty 1 suffered complete complete mathy and neutism and neutical blaging of neutism and neutism due to damage to scale of the instant accident.

C. The Plaintiff’s provision of medical care benefits

The Plaintiff provided medical care benefits to Nonparty 1, a national health insurance policyholder, for the injury, etc. caused by the instant accident, and paid the Corporation’s charge to a medical care institution. On the other hand, Nonparty 1 paid the amount borne by Nonparty 1 in excess of the upper limit of the patient’s charge in relation to the instant medical care benefits. The payment details are as follows and Note 1.

The Corporation's charges on the last payment date included in the main sentence of the same Article + The maximum amount of the Corporation's charges on the date of the purchase on December 16, 2014, KRW 16,490,650 on December 16, 2014, KRW 16,209,740 on December 16, 2014, KRW 16,5,054,920 on May 30, 2016, KRW 913,710 on May 30, 2016, KRW 93,710 on December 21, 2016, KRW 542,460 on March 13, 2017, KRW 43,926,680 on October 17, 2018.

(d) The progress of related civil procedures;

The defendant company filed a suit against the non-party 1 to confirm the existence of an obligation, and the non-party 1 filed a counterclaim against the claim for damages, and the progress of the suit is as follows.

1) Jeonju District Court 2013da12022 (principal lawsuit), 2013dan45152 (Counterclaim) - First instance court

The above court ruled that the defendant company will pay KRW 100 million and its delay damages to the non-party 1. The main reasons are as follows.

- The defendant company is the insurer of the searcher of this case, and is liable for the damages suffered by the non-party 1 due to the accident of this case.

- Nonparty 1 should have prepared strong wire ropes, and, even with knowledge of the danger of falling, Nonparty 1 had been engaged in the freshing of wire ropes with the knowledge of the danger of falling, Nonparty 1 neglected his duty of care to promote the safety of himself, and thus, Nonparty 1’s responsibility is limited to 80% of the Defendant company’s liability.

- The Defendant Company’s exemption from liability (in the absence of compensation: - a person who operates an insured motor vehicle with the permission of the insured, or his parents, spouse and children (insured) are dead or injured) shall be exempted from liability under Section II of the Personal Compensation Insurance Act.

- The amount of comparative negligence set-off against Nonparty 1’s damages exceeds KRW 120 million of the amount of liability insurance, and the amount of KRW 20 million of which is paid by the Defendant Company as the indemnity relation to the Korea Commercial Damage Insurance Co., Ltd., the Defendant Company already paid as the indemnity relation, and thus the Defendant Company’s liability for Nonparty 1 and its delay damages shall be determined as KRW 10

2) Jeonju District Court 2014Na9741, 2014Na9758 (Counterclaim) - Second Instance

The above court rendered a judgment dismissing an appeal based on the same judgment as the judgment of the court of first instance. In determining the ratio of comparative negligence, the above court held as follows: “The serious cause of the accident of this case was that the wire ropes prepared by Nonparty 1 did not check the weight of the tower, and Nonparty 1 did not get off at the time of the accident of this case, and it was sufficiently anticipated that the person was at the time of the accident, and that there was a fall risk by either getting out or getting out of the clibing engine, but it was sufficiently anticipated that the person was at the time of the accident. However, in light of the aspect that the damage was fairly shared by taking account of the fact that Nonparty 1’s negligence was caused by the accident of this case without any special safety device or measures without being negligent in performing his duty of care for safety, it is reasonable to limit the liability of the defendant company to 80% by taking account of Nonparty 1’s negligence into 20%.”

3) Supreme Court Decision 2016Da165 (Mains), 2016Da172 (Counterclaim) -3

In fact, the Supreme Court reversed and remanded the judgment of the court below on the ground that it is sufficient to deem Nonparty 2 as the consenting insured on the ground that Nonparty 2 was Nonparty 2, the head of which was Nonparty 1, and that Nonparty 1 was not the lessee of Nonparty 1 merely because he received a request from Nonparty 2, the head of which was Nonparty 1, and gave guidance and was on the site, and that Nonparty 2 was an agent or a deceased person at the time of the instant work and participated at the site.

4) Jeonju District Court 2018Na8340 (principal claim), 2018Na8357 (Counterclaim), second instance after destruction and return

As of the closing date of the instant case, the trial is in progress.

(e) Results of the relevant criminal procedure;

With regard to the occurrence of the instant accident, Defendant 2 was convicted of the injury by occupational negligence as follows.

1) Jeonju District Court 2014 Highest 2335 - First Instance

- Text: 6 months of imprisonment without prison labor

- Criminal facts found guilty

Around 9:00 on March 18, 2013, the Defendant is a person who is engaged in the operation of a boomer (automobile registration number omitted). The Defendant operated the boomer on Nonparty 2, located in the front line ( Address omitted) around 9:0 on March 18, 2013, carried out the operation of the boomer with Nonparty 1 (the victim Nonparty 2’s boomer age 47) moving off off the boomer. At the time, the Defendant at the time connected the boomer to the connected boomer and the boomer with the boomer, not for its main purpose, such as loading, unloading, etc. of cargo, connected the boomer with the boomer and the boomerererer with the boomererererer and the Defendant, who was engaged in the operation of the boomer with the above boomer that could not be able to boom off the boomer with the boomer’s duty of care.

- Determination on Defendant 2’s assertion

Defendant 2 asserted to the effect that he did not breach his duty of care, but the above court appears to have no expertise in the operation of construction machinery, etc., and Nonparty 1 asked Defendant 2 to the effect that “the operation of a freezing machine to move the above freezing trucking off,” and Defendant 2 instructed Nonparty 1 to prepare for the above operation in advance. At the time of the accident, Defendant 2 and Nonparty 1 decided to do work by linking Nonparty 2 with the booming booming line to the booming line, combining it with the booming line, and then moving it to the booming line to the effect that Nonparty 1 did not remove the booming line to assist the above operation of Defendant 2, and that Nonparty 2 did not stop the operation of the booming line to Nonparty 1 while informing Nonparty 2 of his intention to boom the booming line to Nonparty 1.

- Reasons for sentencing

The above court held that the accident of this case occurred with the non-party 1 while the defendant 2 was on duty with the non-party 1, and that the non-party 1's negligence can also be evaluated as the cause of expanding the accident, under favorable circumstances, it is necessary to thoroughly prepare for the high level of attention and safety, but it is necessary to thoroughly prepare for the operation of the sofacing season where the risk of safety accident exists. However, the defendant 2 continues to perform the duty of care, while the accident of this case occurred with the non-party 1, it found the non-party 2'

2) Jeonju District Court 2015No881 - Second Instance (Final Court)

- Order: Six months of imprisonment without prison labor, one year of suspension of execution;

- Reasons for the judgment

In light of the degree of violation of the duty of care and the degree of damage of Defendant 2, the above court sentenced Defendant 2 to a more minor punishment than the first instance court in consideration of the circumstances agreed with Nonparty 1.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 6, 7, 16, 17, 18, Eul evidence No. 1-2, 3, Eul evidence No. 1, and the purport of the whole pleadings

2. Determination on the claim of this case

A. The parties' assertion

1) Plaintiff

The Plaintiff provided medical care benefits in relation to the injury suffered by Nonparty 1 due to the instant accident, and borne an amount exceeding the upper limit of the Corporation’s charges and the principal’s charges accordingly, and Defendant 2 and the insurer, who caused the instant accident, jointly and severally liable for the damages suffered by Nonparty 1. As such, the Plaintiff may claim against the Defendants the amount borne by the Plaintiff pursuant to Article 58(1) of the National Health Insurance Act.

2) The Defendants

The instant accident occurred due to Nonparty 1’s total negligence (the wire ropes prepared by Nonparty 1). Therefore, even if the Defendants are not responsible or liable, the Defendants should be considered as negligence set-off. In addition, the Defendant Company exempted Nonparty 1’s liability under Non-Party 1’s comprehensive automobile insurance as the consenting insured, and fulfilled its obligation by paying the maximum amount to Non-Party 1 in relation to the liability under Non-Party 1. As such, the Defendant Company is not liable to the Defendant Company, since it did not bear any responsibility.

B. Determination

1) Defendants’ liability for damages against Nonparty 1 and Plaintiff’s right to indemnity

A) According to the above facts, Defendant 2 is a person who caused the instant accident, and the Defendant Company is jointly and severally liable for the damages suffered by Nonparty 1 as an insurer of the instant excavation season. In light of the fact that Defendant 2 was convicted of the injury caused by occupational negligence in connection with the occurrence of the instant accident, it cannot be accepted the assertion that there was no negligence on Defendant 2. In addition, Nonparty 1 was involved in the field after delivering the work schedule as an agent or a death agent of Nonparty 2 and participating in the site, and it cannot be deemed that Nonparty 1 was the insured whose liability is exempted pursuant to Article 2 of the Insurance Clause of the Defendant Company, and the Defendant Company is also liable for the damages suffered by Nonparty 1 pursuant to the Motor Vehicle Comprehensive Insurance Contract, and thus, it cannot be accepted.

B) In addition, the Plaintiff provided medical care benefits for the injury, etc. caused by the instant accident, and paid the amount borne by Nonparty 1 to the medical care institution, or paid to Nonparty 1 the amount borne by Nonparty 1 in excess of the upper limit of the amount to be borne by the Plaintiff. However, according to Article 58(1) of the National Health Insurance Act, the Defendants may claim the above expenses to the Defendants pursuant to the provision that “Where the insured or his/her dependent provided the insurance benefits due to an act of a third party and caused the insurance benefits to the insured or his/her dependent, he/she

(ii) negligence set-off and methods of disposal thereof;

A) Whether to recognize comparative negligence

According to the facts and evidence mentioned above, the accident of this case was mainly caused by Defendant 2’s breach of the duty of care, but Nonparty 1’s failure to perform the duty of care for safety and did not take a falling risk, and it was caused by Nonparty 1’s failure to take part in his preparation, and the accident of this case occurred. In full view of various circumstances revealed in the relevant civil and criminal judgment, Nonparty 1’s negligence is recognized as 20% in this case, taking into account as a whole, considering the following circumstances revealed in the relevant civil and criminal judgment.

B) In the event of offsetting negligence, the scope of the Plaintiff’s right to indemnity 2)

(1) If a person injured by a third party’s tort receives insurance benefits under the National Health Insurance Act, the National Health Insurance Corporation acquires the right to claim compensation for damages against the perpetrator within the limit of expenses incurred in relation to the relevant medical care benefits (Article 58(1) of the National Health Insurance Act). In such cases, if the victim and the perpetrator suffer injury by competition with each other, the scope of the right to claim compensation that the National Health Insurance Corporation can exercise against the third party obligor in relation to the legal principle of comparative negligence

(2) In this regard, the Supreme Court held that “When a victim who received insurance benefits under the National Health Insurance Act claims for damages against a third party, if the victim’s negligence competes with that third party, the amount of damages calculated first shall be offset by negligence, and the insurance benefits so deducted shall not be offset by negligence, and the insurer shall not further offset by negligence, and where the insurer pays insurance benefits to the victim due to a tort, the scope of subrogation shall be the total amount of the insurance benefits within the scope of the damage claim (see, e.g., Supreme Court Decision 2002Da50149, Dec. 26, 2002)” (see, e.g., Supreme Court Decision 2002Da50149, Dec. 26, 2002) shall be calculated first of all, the total amount of damages of the victim (the total medical expenses if it is grossly expressed), and the amount of damages calculated shall be calculated by offsetting the amount of damages to be borne by the perpetrator, and the Corporation shall only take the remainder of the amount of the compensation claim for indemnity against the perpetrator.

(3) However, the Supreme Court’s interpretation cannot be accepted for the following reasons.

(A) According to the Supreme Court’s interpretation, as a result of guaranteeing the right to preferentially claim the total amount of insurance benefits within the scope of the total amount of compensation to be paid by the perpetrator after offsetting negligence, the victim cannot be fully compensated for the amount equivalent to the fault ratio of the perpetrator among the medical expenses actually paid by himself/herself, which eventually results in reducing the victim’s right to receive insurance

(B) The Supreme Court’s interpretation seems to be premised on the offsetting the amount of medical care benefits paid by the National Health Insurance Corporation in the amount of damages calculated first, in addition to the right to claim for damages against the perpetrator where the victim receives insurance benefits from the National Health Insurance Corporation. Therefore, it seems that the National Health Insurance System is a system that provides insurance benefits to the public for the purpose of improving national health and promoting social security. However, even if the insured were to suffer from injury due to gross negligence, it is problematic that the insured is required to pay the insurance premiums to the public, and even if the insured were to suffer from injury due to his own gross negligence, it is problematic that the amount of medical care benefits paid by the National Health Insurance Corporation is identical with the profits and losses of the National Health Insurance Corporation.

(C) In addition, the National Health Insurance Corporation exercises the right to claim compensation against the perpetrator by subrogation. Since the Supreme Court's interpretation is deemed that the National Health Insurance Corporation can claim the total amount of the Corporation's charges within the scope of total medical expenses after offsetting negligence, the total amount of the victim's total medical expenses can be considered as the object of subrogation. Therefore, there is insufficient ground to view that the National Health Insurance Corporation can extend the target of subrogation to all other medical expenses without limiting it to the amount of the Corporation's charges directly corresponding to the provision

(D) Article 58(1) of the National Health Insurance Act only intends to resolve the problem of double gains that may arise when a victim continues to claim damages against a perpetrator after receiving insurance benefits from the National Health Insurance Corporation. Furthermore, it cannot be interpreted as a provision to prevent the victim from receiving compensation, by including the amount equivalent to the victim’s fault ratio in the actual treatment expenses.

(4) Therefore, the interpretation of the above Supreme Court cannot be recognized as it is, and it is reasonable to view that the scope of the right to indemnity that the National Health Insurance Corporation can exercise against the third debtor in relation to the legal principle of offsetting negligence in cases where the victim suffered bodily injury by concurrent negligence between the victim and the perpetrator, “only the right to claim damages concerning the portion of the Corporation charges out of the amount of damage suffered before offsetting negligence shall be transferred to the National Health Insurance Corporation, and the

3) Sub-determination

In such a case, the defendants are jointly and severally liable to the plaintiff for 35,141,34 won (43,926,680 won x 0.8) and for 13,192,520 won (16,490,650 won x 0.8) from December 25, 2013 to 12,967,792 (16,209,740 won x 0.8) from December 17, 2014 to 4, 936 won (5,054, 920 x 0.8.8 x 0.28 x 20.48 x 205 x 30.6 x 18 x 3.8 5 x 20.4 x 18 5 x 20.3 5 x 18 5 x 20.8 x 2016 x 3.4 x 18 5 x 18 ; 20.4 x 10.4 x 5 x 5.8 x ;

3. Conclusion

Therefore, the plaintiff's claim against the defendants is accepted within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.

Justices Kim Tae-hun

(1) The Plaintiff asserted the details of the claim as of November 12, 2018 and the application for modification of the cause of the claim, and the Defendants did not dispute this.

Note 2) This part of the judgment was based on the following thesis. The scope of the right to indemnity against a third party of the National Health Insurance Corporation - the Supreme Court’s precedents - critical consideration-- the title of thesis published in the thesis of the research society of judicial precedents (2012).

3) Even if the insured et al. suffered injury due to their own gross negligence, it is reasonable to view that the insured et al. bear the part corresponding to the ratio of fault of the insured, etc. among the contributions to be paid by the National Health Insurance Corporation where the insured et al. receive medical treatment due to other person's tort and the National Health Insurance Corporation bears the amount of the contributions to be paid by the Corporation, and that the remaining portion corresponding to the ratio of fault of the insured, etc. can be claimed to the other person.