M&C Co., Ltd. (Law Firm Re-S&C, Attorney Doh-won, Counsel for the plaintiff-appellant)

National Health Insurance Corporation (Law No. 1000,00)

October 11, 2011

1. The defendant's compulsory execution against the plaintiff by Busan District Court Branch 201Gaso23824 decided on performance recommendation shall not be permitted.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

1) The Plaintiff is a person entrusted by the Minister of Land, Transport and Maritime Affairs with the business of guaranteeing motor vehicle accident compensation under Article 30(1) of the Act pursuant to Article 45(1) of the Guarantee of Automobile Accident Compensation Act (hereinafter “Act”). The Defendant is a legal entity that provides insurance benefits for the prevention, diagnosis, treatment, etc. of diseases and injuries to the people, and Nonparty 2 is the Defendant’s insured.

2) On December 14, 2009, Nonparty 1, who did not have a motorcycle driver’s license, driven the Ortoba (124C) around 23:25 minutes, driving on the 124cc, and driving on the breath of the breath distance from the breath of the breath of the cular road located in the breath of Busan Metropolitan Transportation Daegu to the breath of the road. Nonparty 1, while driving on the breath of the road from the breath of the breath of the breath of the breath of the breath of the road, caused an accident (hereinafter “the instant traffic accident”) that shocks the (vehicle number omitted) options car (hereinafter “the instant traffic accident”). Accordingly, Nonparty 2, who was on the said vehicle, was hospitalized for 33 days at the plane hospital by suffering from the injury of “other detailed and unbunded s

3) Of the total treatment costs of Nonparty 2, the Defendant paid KRW 1,205,70 to the above hospital, excluding the Corporation’s charges of KRW 442,570,000, out of Nonparty 1,648,270.

4) Meanwhile, within the limit of liability insurance amount of KRW 2,400,000, the Plaintiff paid KRW 1,300,600 to Nonparty 2 under the name of Nonparty 1, a day-time income, consolation money, etc.

5) The Defendant filed a lawsuit against the Plaintiff regarding the claim for reimbursement (201Gau23824) by asserting that “the Plaintiff has the obligation to claim reimbursement of KRW 1,205,700 paid by the Defendant to the Defendant” in Busan District Court’s Dong Branch, and the said court rendered a decision of performance recommendation on April 7, 201, and the said decision of performance recommendation became final and conclusive at that time.

[Reasons for Recognition] Unsatisfy, Entry of Evidence A No. 2, All pleadings

2. Determination

A. The arguments and issues

The defendant, on behalf of the non-party 2, has the right to claim the above money in accordance with Article 53 (1) of the Act by paying the medical expenses of KRW 1,205,700 for the traffic accident of this case for the non-party 2. The plaintiff asserts that, within the scope of liability insurance amount under Articles 45 (1) and 30 (1) of the Act, the plaintiff is a person responsible for compensating the damages suffered by the non-party 2 due to the traffic accident of this case and is a person responsible for the right to indemnity under Article 53 (1) of the Act, who is obligated to pay the amount equivalent to KRW 1,205,70 paid by the defendant to the defendant. Accordingly, the plaintiff is merely entrusted with the business of guaranteeing the compensation for the motor vehicle accident of this case. Thus, the plaintiff asserts that it does not constitute a person responsible for the right to indemnity under Article 53 (1) of the Act.

Ultimately, the issue of this case is whether the Plaintiff is a person responsible for the right to indemnity as provided by Article 53(1) of the Construction Work Act.

B. Determination

1) In the event that the victim is an insured person or dependent of the health insurance, the victim has the right to claim compensation from the Minister of Land, Transport and Maritime Affairs in relation to the medical expenses for the person entrusted with the business of guaranteeing motor vehicle accident compensation under Article 30(1) of the Private Ship Act (hereinafter referred to as the “trustee of the Guarantee Business”), and at the same time has the right to claim medical care benefits against the defendant. Since each of the above claims is not priority, the victim can exercise his/her right as the victim has no priority, one of the beneficiaries or the defendant can exercise his/her right to claim. Accordingly, one of the beneficiaries of the Guarantee Business or the defendant can be exempted from his/her liability equivalent to the medical expenses in relation to the victim. As a result, it is difficult to view that the degree of the trustee and the defendant's liability varies depending on the victim’s choice in relation to the medical expenses. However, it is not appropriate in the case of the defendant’s general provision of the Guarantee Business Act, such as the Guarantee Business Act or the Compensation Right Act.

2) Under Article 53(1) of the Act, a person responsible for the right to indemnity is expressed as “third party”. In light of the following circumstances, it is reasonable to interpret that the person responsible for the right to indemnity does not fall under “third party”.

With respect to the scope of "third party" as provided in Article 53 (1) of the "Nomenclature Act", the Supreme Court held that "the third party is the defendant who has provided insurance benefits due to the accident in question and the insured who has actually received insurance benefits due to the accident in question and persons other than those who are in health insurance relationship with the victim, and the third party includes not only the victim directly, but also the person who is liable for damages due to the act of the perpetrator in question, and also the third party includes not only the perpetrator directly, but also the person who is responsible for the act of the perpetrator in question by the provisions of the law or the contract (Supreme Court Decision 2003Da1878 Decided August 20, 204). The Supreme Court's decision is related to the issue of whether the defendant can exercise the right to indemnity against the insurer who concluded the automobile insurance contract with the perpetrator, and therefore, it cannot be applied as it is. In particular, the trustee bears the responsibility to guarantee the accident compensation business in question as well as the person who bears the responsibility to guarantee the victim's act."

The legislative intent of Article 53(1) of the Act is generally known as “i.e., the prevention of double acquisition by a victim, ② the prevention of a perpetrator’s exemption, ③ the securing of insurance finance,” and is related only to the exercise of the right to indemnity against the plaintiff by double defendants. However, a person who ultimately bears insurance (treatment costs) paid by a guarantee business trustee is the government that is the subject of the guarantee business of automobile accident compensation, and as long as the defendant receives financial support from the government on a regular basis (Article 92 of the Act, etc.). Even if the defendant is paid the amount equivalent to the medical expenses paid by the trustee or the government, there is no significant effect to expand the insurance finance ultimately.

○○ (Final Liabilityer) Business Guarantee of Automobile Accident Compensation or National Health Insurance System has both characteristics of social security. A traffic accident victim may be simultaneously protected by other social security systems such as medical care or industrial accident compensation insurance, in addition to the Guarantee of Automobile Accident Compensation Business or National Health Insurance, which is at issue in the instant case according to its qualification. In the event that multiple social security systems are applicable to one case, most relevant statutes do not explicitly stipulate the mutual relationship between related social security systems, but only stipulate the right of indemnity similar to those of Article 53(1) of the Construction Act (i.e., the Act does not explicitly stipulate the right of indemnity of the Guarantee Business Trustee, but there is no room for doubt that the Guarantee Business Trustee can claim indemnity against the perpetrator. However, considering that the provision of indemnity as alleged by the Defendant does not provide for convenience to solve this problem, the provision on indemnity mainly provides for the offender as the other party with the right of indemnity, and that the provision on indemnity is not appropriate to determine a specific social security system among the persons who are established as the other party with the social security system.

○ (Unjustifiable Profit) In the case of an insurer who entered into an automobile insurance contract with a perpetrator, the victim may be exempted from liability for damages equivalent to insurance benefits to the victim by providing insurance benefits due to the contingency that the insured is the health insurance policyholder, which may result in unfair consequences. This is necessary to arrange interests in a way that the Defendant claims the insurer to reimburse the insurer. However, the Act explicitly permits the guarantee business trustee to exempt the Defendant from liability equivalent to the medical expenses when the Defendant first paid the medical expenses (Article 36(1) of the Act and Article 29 subparag. 7 of the Enforcement Decree of the same Act). Thus, it cannot be said that there is no legal ground on the ground that the benefits have been gained by the guarantee business trustee. Accordingly, if the government or the guarantee business trustee is exempted from liability due to the Defendant’s insurance benefits, not unjust enrichment, but it cannot be readily concluded.

Since the final person who is liable for the compensation to the victim is the perpetrator, the defendant is also liable for the direct compensation to the perpetrator in accordance with Article 53(1) of the Act on the Establishment of a case law, in cases where the person responsible for the compensation is claiming the compensation to the trustee of the assistance business, the trustee of the assistance business who has complied with the claim for compensation has the right to indemnify the perpetrator again.

3) Therefore, the Defendant cannot exercise the right to demand reimbursement against the Plaintiff, and on a different premise, it is necessary to ensure that the Defendant cannot enforce compulsory execution against the Plaintiff by means of a decision of performance recommendation rendered by the Busan Busan District Court Branch Office 201Gau23824.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges Yellow Jae-ho

1) In this case, the Plaintiff calculated the amount to be disbursed as the expenses for medical treatment for the Plaintiff based on KRW 442,570, which was paid by Nonparty 2.

Note 2) In the absence of special reference, the term “victim” means a victim of an accident caused by an accident or non-insurance vehicle in which the holder is unknown.

3) At this time, either the trustee of the assistance project or the defendant may not refuse payment on the ground that there is another person performing other obligations.

4) The trustee of the assistance project shall pay the amount calculated by deducting the amount equivalent to the rate of fault of the victim out of the total medical expenses within the limit of liability insurance, and the defendant shall pay the prescribed amount of the assistance to the Corporation.

Note 5) Article 36(1) of the Act, Article 29 of the Enforcement Decree of the Act, Article 48(2) and Article 53(2) of the Act

Note 6) If the exercise of the Defendant’s right to indemnity is permitted, the trustee of the Guarantee Business bears the ultimate responsibility for the full amount of medical expenses incurred by the victim subject to the Guarantee Business of Automobile Accident Compensation.

7) Meanwhile, according to Article 37 of the Act, financial resources of the Guarantee Business of Automobile Accident Compensation consisting of contributions to be paid by a person, etc. who is obligated to subscribe to liability insurance. However, this is a provision on financing, so it cannot be said that the trustee of the Guarantee Business is in the same position as the insurer of the

8) For reference, Article 42 of the Industrial Accident Compensation Insurance Act is insufficient, but explicitly provides for the relationship between health insurance and industrial accident compensation insurance. Furthermore, in the process of revising the Industrial Accident Compensation Insurance Act, it has been examined that the provision that the defendant can provide insurance benefits before and after the decision of whether or not a occupational accident occurred, but can claim for reimbursement to the Korea Workers' Compensation and Welfare Service (see, e.g., the review report of the National Assembly on the amended Industrial Accident Compensation Insurance Act proposed by the Government on June 1, 2007).

9) Meanwhile, it seems that there is no difference between the victim’s amount to be compensated depending on whether the Defendant is unable to exercise the right to indemnity against the trustee of the guaranteed business. However, in general, the payment of the insurance money from the automobile insurer after receiving the health insurance benefit is more favorable for the victim (see, e.g., “Review of the selective preferential application of the health insurance and the automobile insurance,” No. 10-2 of the Medical Service Act, No. 10-2