Plaintiff (Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

National Health Insurance Corporation

July 19, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of recovering and notifying the Plaintiff of unjust enrichment of KRW 6,862,170 as of March 6, 2013, and each disposition of recovering and notifying unjust enrichment of KRW 1,037,850 as of March 21, 2013, and KRW 787,120 as of March 21, 2013 is revoked (the Plaintiff entered the date of the disposition of notifying restitution of unjust enrichment of KRW 6,862,170 as of March 5, 2013 in the application form for modifying the purport of the instant claim and the cause of the claim in question as “the date of the disposition of notifying restitution of unjust enrichment of KRW 6,862,170 as of March 6,

1. Details of the disposition;

A. On September 20, 2007, the non-party, who is the plaintiff's father (date of birth omitted) was living in the second floor of the Gangnam-gu Seoul ( Address omitted), and was living in the non-party 2 with the symptoms of non-party 2, such as satisfying, satisfying, and breafying (hereinafter "the instant procedure"), which occurred while being under the non-party 2 received from the non-party 2, while running the non-party 2 in the non-party's second floor of the Gangnam-gu Seoul ( Address omitted) building. The non-party was suffering from satisfying brain damage due to the symptoms such

B. 1) On May 26, 2008, the non-party did not perform a prompt and appropriate first aid treatment, including anti-competitive medication, even though it was necessary to conduct a test equivalent to the general anesthesia prior to the injection of an anti-anesthesia, which is a kind of general anesthesia. The non-party asserted that the non-party 2's above negligence brought about damages against the non-party 208 Seoul District Court by asserting that the non-party 2 claimed damages against the non-party 25, on the ground that the non-party 2 did not properly conduct a pre-examination, transitional observation, and smoking examination, etc., and that the non-party 2 had caused the de-party 20 (the non-party 25) to go through the blood pipe, and that the non-party 2 was liable to compensate for damages caused by the non-party 2.

(3) On May 13, 2010, the appellate court of the above case (Seoul High Court 2009Na17587) 2. The non-party 2, who had no special health problems prior to the instant medical procedure, 50 won 6% of the total 70 won 80 won 80 won 60 won 60 won 80 won 60 won 60 won 80 won 60 won 20 won 6 won 9 won 20% of the total 9 won 60 won 9 won 6 won 20 won 8 won 6 won 20% of the non-party 2's 6th 7 won 9 won 200 won 6 won 9 won 20% of the non-party 2's 6th 7 won 9 won 20% of the non-party 2's 9 won 2's ever since the instant medical procedure was administered to the non-party 2's non-party 2's non-party 2's own symptoms treatment method.

3) Accordingly, on May 25, 2010, Nonparty 2 deposited KRW 449,961,512 with the Daegu District Court Decision 2010 (Seoul District Court Decision 3443 Decided May 25, 2010 (= KRW 395,082,877 + damages for delay until the date of deposit + KRW 54,878,635).

4) Meanwhile, the Nonparty was dissatisfied with the above appellate judgment and appealed to the Supreme Court Decision 2010Da46022, but the said judgment became final and conclusive as the appeal was dismissed on August 26, 2010. The Nonparty paid the said deposit through the Plaintiff on January 4, 2011.

C. From July 21, 2010 to October 1, 2010, the Nonparty received treatment from July 21, 2010 to October 1, 2010, the Nonparty (i.e., KRW 4,05,90 + KRW 2,361,560 + KRW 2,409,230 + KRW 2,40 + KRW 1,219,90 out of the medical treatment costs received from the Hospital Hospital from January 16, 2012 to March 22, 2012 + KRW 632,90 + KRW 37,620 + KRW 36,860 + KRW 36,80 + KRW 360 + KRW 369,600 + + KRW 360,50, + KRW 3081, KRW 408,3085; and KRW 408,201.25).

D. On January 4, 2011, the Defendant issued a disposition to recover the amount of money deposited by Nonparty 2, a perpetrator, as unjust enrichment, pursuant to Articles 58(2) and 57 of the former National Health Insurance Act (amended by Act No. 11787, May 22, 2013; hereinafter the same shall apply), against the Plaintiff, a guardian, as his/her father, on the ground that the Nonparty received the amount of money deposited by Nonparty 2, a perpetrator; ① on February 1, 2013, the Nonparty recovered the amount of insurance benefits paid to the Nonparty (the amount of KRW 1,219,90 (the amount of medical treatment from January 16, 2012 to March 22, 2012) and KRW 878,30 (the amount of medical treatment expenses recovered from April 5, 2012 to June 28, 2012). ② The Nonparty recovered the amount of the charges imposed by Nonparty 2 from March 16, 2016.

E. Subsequent to the Defendant’s disposition of restitution of each unjust enrichment of KRW 1,219,90 and KRW 878,330 on March 21, 2013, the Defendant changed the total amount of medical expenses incurred in treating each medical treatment from January 16, 2012 to March 22, 2012, from April 5, 2012 to June 28, 2012 (i.e., the Defendant’s charges + the Defendant’s charges + non-benefit medical expenses) to KRW 1,037,850 and KRW 787,120 on the part of Nonparty 2’s negligence ratio of KRW 60 (hereinafter the aforementioned change) (i.e., restitution of unjust enrichment of KRW 1,037,850 and KRW 787,787,120 on March 21, 2013; and (ii) restitution of unjust enrichment of KRW 36,2013.636.7.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4 (including each number, hereinafter the same shall apply), Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The purpose of Article 58(2) of the former National Health Insurance Act is to prevent the beneficiary of the insurance benefits from being paid in duplicate with the insurance benefits paid by a third party when a cause for paying the insurance benefits occurred due to a third party’s tort, and from evading liability by a third party, and to secure the insurance finance. Therefore, the amount corresponding to the percentage of fault of the claimant of the insurance benefits who exceeds the limit of the genuine amount of damages that can be paid by a third party is still liable for the payment of the insurance benefits.

In the instant case, the Plaintiff’s future treatment expenses paid by Nonparty 2 (26,673,694 won x 60%) is 16,004,216 won (26,673,694 won x 60%). The said amount does not include the part equivalent to 40% of the Nonparty’s fault ratio. Meanwhile, from April 30, 2010 to February 25, 2013, the date following the closure of the argument in the instant appellate case, the actual expenses incurred in treatment of the Nonparty are 26,438,446 won. Of the above amount, 15,863,067 won (26,438,446 won x 60%) equivalent to the non-party 2’s fault ratio, but the Defendant is not obligated to pay the insurance benefits to the non-party 2, and thus, the Defendant is still not obligated to pay the insurance benefits to the non-party 250%.

2) In rendering the instant disposition, the Defendant asserted that the instant disposition was lawful, as it reflected Nonparty 2’s fault ratio of 60%. However, if Nonparty 2’s negligence ratio was reflected, the part to be recovered by the Defendant is KRW 731,94 out of the medical expenses from January 16, 2012 to March 22, 2012 (=1,219,990 x 60%) and the part to be recovered by the Defendant is KRW 78,30 from April 5, 2012 to June 28, 2012 (=8,526,998 x 878,330 x 60%).

3) Therefore, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 58(1) of the former National Health Insurance Act provides, “Where a reason for insurance benefits arises due to an act committed by a third party and an insured or his/her dependent has provided the insurance benefits to the insured or his/her dependent, the National Health Insurance Corporation shall obtain the right to claim damages from the third party to the extent of the expenses incurred in relation to the benefits.” Article 58(2) provides, “Where a person who has received the insurance benefits pursuant to paragraph (1) has already received damages from a third party, the Corporation shall not provide the insurance benefits to the extent of the amount of compensation.” The above provision aims to prevent the beneficiary of the insurance benefits from being transferred to the insured or his/her dependent by a third party and from evading liability by a third party, and to secure insurance finance.

In light of the legislative intent of Article 58(2) of the former National Health Insurance Act and the contents thereof, if a beneficiary of insurance benefits receives a certain amount of money related to his/her property compensation from a third party, and either waives or waives the remainder of the claim, or exempt a third party from the entire obligation to compensate for damages without receiving it at all, the Service will be exempted from the obligation to pay insurance benefits within the extent of the real amount of property damage (limited to the scope related to insurance benefits items) that the beneficiary may receive from a third party due to the disaster (see Supreme Court Decision 2005Du7501, Jun. 15, 2007).

2) In the above Seoul High Court case 2009Na17587, which was brought by the non-party 2 against the non-party 2, the ratio of the non-party 2's negligence was recognized as 60%. Since the part corresponding to the 60% of the medical expenses incurred after the conclusion of the argument in the above case can be compensated by the non-party 2, the above part also is exempted from the obligation to pay the insurance benefits.

Therefore, the disposition of this case is legitimate on the premise that the Defendant did not pay insurance benefits for the portion equivalent to 60% of the medical expenses incurred from July 21, 2010 to October 1, 2010, from January 16, 2012 to March 22, 2012, from April 5, 2012 to June 28, 2012 (i.e., medical expenses of the Nonparty spent from April 2012 + Defendant’s charges + Defendant’s charges + non-paid medical expenses + Defendant’s charges + Defendant’s charges + Defendant’s charges + 30% of the medical expenses) out of the above charges calculated on the premise that the Defendant did not have the obligation to pay insurance benefits (i.e., the Plaintiff’s portion that the Defendant could recover if reflecting Nonparty 2’s negligence ratio, 1,219,90 to March 22, 201, 209 to KRW 308,9719,296.29).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Ba-hee (Presiding Judge)