[1] Whether the scope of the right to indemnity subrogated by the National Health Insurance Corporation under Article 53 (1) of the National Health Insurance Act is limited to the damage claim for medical expenses related to the provision of insurance benefits (negative)

[2] In a case where the remaining amount of damage of a victim who received insurance benefits from the National Health Insurance Corporation exceeds the insurance limit amount of liability insurance for which the perpetrator is the insured, and the insurance claim is not extinguished due to repayment in response to the claim for reimbursement by the Corporation, whether the victim is entitled to legally claim and receive the insurance proceeds (affirmative)

[3] The case holding that, in a case where the National Health Insurance Corporation provided insurance benefits to a beneficiary of a gas explosion accident who was a victim of the insurance benefits and exercised a claim for reimbursement against a perpetrator's insurance company, but an insurance company has already paid the insurance proceeds to the beneficiary, the beneficiary was entitled to receive the insurance proceeds as long as the remaining amount of damages after the provision of the insurance benefits exceeds the insurance limit of liability insurance for the tortfeasor's insured

[1] The scope of the right to indemnity subrogated by the National Health Insurance Corporation pursuant to Article 53(1) of the National Health Insurance Act is a damage claim against the perpetrator of the victim who shares the same subject matter within the scope of insurance benefits. Thus, it is sufficient that the medical expenses in proximate causal relation with the insurance accident are sufficient and not necessarily confined

[2] Since the National Health Insurance Corporation's direct right to receive insurance proceeds by subrogation is a victim's direct right to claim insurance proceeds, if the insurance company first paid insurance proceeds before the Corporation's insurance benefits, it is no longer entitled to claim the insurance proceeds by subrogation, and if the Corporation acquired the right to claim reimbursement by subrogation, and received the insurance proceeds by exercising the right to claim reimbursement, then the victim's right to claim insurance proceeds is extinguished. If there is a loss to the victim after the Corporation's insurance benefits, and the insurance company still has not yet paid the insurance proceeds, the principle of creditor equality is controlled in relation to the insurance company, and if the insurance company is able to pay to anyone within the insurance proceeds, the victim's remaining amount of damage to the victim who received the insurance benefits exceeds the insurance limit, and the insurance claims are not extinguished due to repayment in response to the Corporation'

[3] In a case where the National Health Insurance Corporation provided insurance benefits to a beneficiary who is a victim of a gas explosion and exercised a claim for reimbursement against a perpetrator's insurance company, but an insurance company has already paid the insurance proceeds to the beneficiary, the case holding that the beneficiary was duly paid the above insurance proceeds to the insurance company as long as the remaining amount of damages after the provision of insurance benefits exceeds the insurance limit of liability insurance for the tortfeasor's insured, and thus the insurance

[1] Article 53 (1) of the National Health Insurance Act / [2] Article 53 (1) of the National Health Insurance Act / [3] Article 53 (1) of the National Health Insurance Act

[1] Supreme Court Decision 2004Da5266 Decided September 9, 2005

National Health Insurance Corporation

Defendant 1 and two others (Attorneys Jeong Byung-jin et al., Counsel for the defendant-appellant)

Seoul Western District Court Decision 2008Da72632 decided July 9, 2010

January 28, 2011

1. A. The part of the judgment of the court of first instance concerning Defendant 1 is modified as follows.

B. Defendant 1 shall pay to the Plaintiff 30,679,240 won and 27,483,253 won among them, 5% per annum from March 7, 2007 to July 9, 2010, 5% per annum from March 7, 2007 to March 11, 201, and 20% per annum from the following day to the date of full payment.

C. The plaintiff's remaining claims against the defendant 1 are dismissed.

2. Of the judgment of the first instance, the part of the judgment against Defendant Hyundai Marine Fire Insurance Co., Ltd. and Defendant Matts Fire Insurance Co., Ltd. is revoked, and all of the Plaintiff’s claims against the above Defendants falling

3. The plaintiff's incidental appeal against the defendant Hyundai Marine Fire Insurance Co., Ltd. and defendant Matts Fire Insurance Co., Ltd. is all dismissed.

4. Of the total litigation cost, the Plaintiff and Defendant 1 are borne by Defendant 1, and the Plaintiff and the remainder of the Defendants are borne by the Plaintiff.

5. The part for which no provisional execution has been declared by the first instance court among the provisions of subparagraph 1-b) may be provisionally executed.

1. Purport of claim

The defendants pay to each plaintiff 30,679,240 won with 5% interest per annum from March 7, 2007 to the delivery date of a complaint, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked and the Plaintiff’s claim against the Defendants falling under this part is dismissed.

3. Purport of incidental appeal;

The part against the plaintiff falling under the order to pay additional amounts under the judgment of the court of first instance shall be revoked. The defendants shall pay to each plaintiff 3,195,987 won with 5% interest per annum from March 7, 2007 to the delivery date of the complaint and 20% interest per annum from the next day to the day of full payment.

1. Facts recognized;

A. Acknowledgement of the first instance judgment

The reasoning of the judgment of the court of first instance is as follows (the main text of Article 420 of the Civil Procedure Act).

Based on the basis of recognition of the actual tax, Gap evidence 5, 6, and Eul evidence 3-1 to 8 shall be added.

The provisions of Section 1-C of the first instance judgment shall be followed as follows.

From October 20, 205 to January 10, 207, the Plaintiff paid 30,679,240 won (non-party 19,439,750 won, non-party 28,958,190 won, non-party 312,281,300 won, non-party 312,550 won, and non-party 312,57,106 won (non-party 18,72, 384, 2139, 21398, 9758, 9758, 97, 9857, etc.) as stated in the “Damages calculation sheet” from October 20, 200 to the Plaintiff’s insured person, etc., and separately paid 8,582,57,500 won, including the above medical expenses, under the name of non-payment items.

The actual contents of the judgment of the court of first instance shall be added as follows at the end of Section 1 (d) above.

However, the judgment of the court of first instance included a total of 124,285,232 won [total of 125,650,947 won + active damages such as medical expenses + 51,89,385 won + 70%) x 9,918,289 won [total of 99,918,289 won [total of 80,058,164 won + 62,250 won + 70%) x 121,623,544 [total of 121,623,54 won [total of 56,785,202 won + active damages such as medical expenses + 64,38,342 won] x 30% of the negligence of the non-party 1’s non-party 3’s property damages. The portion of the above insurance benefits was not separately included in the medical expenses].

The actual contents of the judgment of the court of first instance shall be based on the following parts: (e)(1) and (2).

(1) In full view of the provisions of the insurance contract related to the first and second insurance contracts, as to the part remaining after deducting the liability of the second insurance contract from the total amount of damage (amount of actual damage) incurred due to the insurance accident of this case, Defendant Matz Fire within the scope of the payment limit under the terms and conditions of the first insurance contract, and Defendant Matz Fire within the scope of the payment limit under the terms and conditions of the second insurance contract. The results of physical evaluation of Nonparty 1, etc. in the above lawsuit for damages, the results of fact inquiry (Evidence 1 to 3-2) (Evidence 2-1 to 6-3), the first judgment (Evidence 6) in the above lawsuit for damages, and the decision in lieu of the conciliation of the above appellate court (Evidence 2-2), the injury grade and the subsequent disability grade of Nonparty 1, etc. pursuant to each insurance contract of this case and the insurance amount to be paid by the above Defendants to Nonparty 1, etc. are as follows.

Non-party 21 Grade 9 (15 million won) 12 (24 million won) of Grade 7 of Grade 7 (24 million won), Non-party 21 (6 million won) of Grade 9 (15 million won) of Grade 9 (15 million won) of Grade 1, Non-party 31 Grade 9 (15 million won) of Grade 14 (2.4 million won) of Grade 14 of Grade 14 (2.4 million won) of Grade 31 of Grade 1, Non-party 31 of Grade 9 (15 million won) of Grade 14 (2.4 million won) of the attached Table 3

Non-party 12 Grade 8 (10 million won) 12 Grade 14 (10 million won) 12,50,000 won, non-party 25 Grade 13 (10 million won per week 2) 13 (15 million won) 15,00 won, Non-party 31 Grade 9 (15 million won) 14 Grade 14 (5 million won) 2,000 won, which is included in the main sentence of Table 2, Non-party 31 Grade 9 (15 million won) 14 grade 14 (5 million won) 2,000 won.

Note 1) (10 million won)

Note 2) (5 million won)

(2) Meanwhile, Nonparty 1, etc. filed an application against the said Defendants for provisional disposition seeking payment of the amount stipulated in the insurance clause as damages for the instant accident (Seoul Central District Court 2006Kahap332), and the said court accepted part of the application by Nonparty 1, etc. on March 16, 2006. Accordingly, Defendant Hyundai Sea paid medical expenses of KRW 25 million to Nonparty 1, 2, and 3 on April 4, 2006, KRW 23 million, and KRW 23 million to Nonparty 1, 2, and 3 on April 2006, each of which was paid to Nonparty 1, 2, and 3, KRW 15 million, KRW 15 million, KRW 15 million, and KRW 2,200 million.

(3) However, in the first instance court of the above lawsuit, Nonparty 1 received KRW 25 million, which was paid by Nonparty 1 based on a provisional disposition, and KRW 25 million, which was paid by Nonparty 2 based on a provisional disposition, and Nonparty 2 exceeded the insurance money to be paid by the above Defendant. Thus, the decision in lieu of the conciliation on June 24, 2008 with no additional payment, became final and conclusive, and Defendant Hyundai Sea paid KRW 2.5 million to Nonparty 1 at the court of first instance on October 10, 2008. The above first instance court dismissed Nonparty 3’s claim against Nonparty 1 for a provisional disposition on the ground that KRW 23 million was paid by the above Defendant’s Hyundai Sea on the ground that the above amount exceeded the insurance money to be paid by the above Defendant, and the part of Defendant’s claim against Defendant 2, 300,000 won on the ground that the Defendant’s claim against Nonparty 1 was final and conclusive, as stated in the above Section 12).

2. Occurrence of claims for indemnity;

(a) Occurrence of the right of indemnity;

According to the above facts, Defendant 1 is the party to the instant accident. Defendant Hyundai Sea is the insurer of Defendant 1, and Defendant Matz Fire is the insurer of Defendant 4, and is liable for compensating for the damages suffered by Nonparty 1, etc. due to the instant accident (Defendant 1 asserted that the instant accident occurred due to other person’s negligence, but as seen earlier, Defendant 1’s above assertion is recognized as Defendant 1’s negligence, and thus Defendant 1’s above assertion is not accepted). However, the Plaintiff provided insurance benefits by receiving medical treatment from Nonparty 1, etc. at the medical care institution, so the Plaintiff acquired the said insurance benefits by subrogation within the scope of the above insurance benefits pursuant to Article 53(1) of the National Health Insurance Act.

(b) Scope of the right of indemnity;

(1) Where a victim who received insurance benefits under the National Health Insurance Act provides a claim for damages against a third party, if the victim's negligence competes with that of the third party, the insurance benefits shall be offset by negligence from the amount of damage calculated first, and the insurance benefits so deducted shall not be offset by negligence. In a case where the insurer provided the insurance benefits to the victim due to a tort and then subrogates the damage claim against the perpetrator, the scope of subrogation shall be the whole amount of the insurance benefits within the scope of the damage claim (see, e.g., Supreme Court Decisions 2001Da4022, 4039, Jan. 8, 2002; 2002Da50149, Dec. 26, 2002).

According to the facts established earlier, it is reasonable to limit the liability of Defendant 1 and ○○ Gas (Non-Party 4) to 70%. As such, the damages equivalent to the amount of medical expenses to be paid by the Defendants to Non-Party 1, etc. are KRW 89,818,896 [=30,679,240 (Plaintiff’s charge) + KRW 59,582,550 out of insurance benefits + KRW 62,873,227 (=89,818,896 + KRW 70%) out of the total amount of medical expenses incurred by the Plaintiff, etc. when he/she received medical treatment in a medical care institution. Therefore, the Defendants are liable to pay damages for the damages incurred by each of the above KRW 30,679,240 and delay damages, unless there are special circumstances.

(2) Defendant Qz Fire asserts that the Plaintiff’s damage claim equivalent to the medical expenses against the Defendants, such as Nonparty 1, etc. subrogated by the Plaintiff due to the provision of insurance benefits against Nonparty 1, etc. is limited to the insurance benefit cost incurred from the provision of insurance benefits, and that the Plaintiff’s damage claim for medical expenses irrelevant to the Plaintiff’s insurance benefits cannot be subrogated by the Plaintiff under Article 53(1)

The scope of the right to indemnity subrogated by the Plaintiff pursuant to Article 53(1) of the National Health Insurance Act is a damage claim against the perpetrator of the victim, which share the same subject matter in the scope of insurance benefits (see Supreme Court Decision 2004Da5266, Sept. 9, 2005). It is sufficient that the treatment amount in proximate causal relation with the instant accident is sufficient and is not limited to the provision of insurance benefits.

In this case, even if Nonparty 1 et al. paid the sum of KRW 50,557,106,00,000, according to the above evidence, it is reasonable to view that there is a proximate causal relationship between the above amount and the accident of this case. Thus, the above amount also includes it within the scope of damage claim

Therefore, the above argument of Defendant Matz fire is without merit.

(3) Defendant 1 asserts that the Plaintiff’s assertion on the amount of the above non-benefit items should be rejected by means of real-time attack and defense.

After filing the instant lawsuit on August 26, 2008, the Plaintiff submitted an incidental appeal stating the above assertion only on January 24, 201. However, it is difficult to readily conclude such delayed submission due to the Plaintiff’s intentional act or gross negligence due to the delayed submission of the argument, and immediately thereafter, it did not lead to the delay of the lawsuit due to the above assertion, such as the closure of pleading on the date for pleading. Thus, Defendant 1’s above assertion is rejected.

C. Determination on the assertion by Defendant Hyundai Sea and Defendant Matz Fire (hereinafter referred to as “Defendant insurance company”)

(1) The Defendant insurance company, in relation to the instant accident, paid the maximum amount of compensation under the first and second insurance contracts to Nonparty 1, etc. who is a legitimate recipient, and even if not, it asserts that the repayment with respect to Nonparty 1, etc. is valid as repayment to quasi-Possessor or receipt holder of the claim, and thus, the Defendant insurance company’s obligation to pay the insurance money has already ceased to exist.

(2) Determination

(A) In principle, insurance benefits under the National Health Insurance Act include not only the perpetrator of the accident in question but also the insurer who takes over the tortfeasor's liability for compensation. Meanwhile, the victim's direct claim for insurance benefits recognized pursuant to Article 724 (2) of the Commercial Act is practically performed when the insured was treated at a medical institution. Thus, the National Health Insurance Corporation shall obtain the right to indemnity against the third party within the insurance benefits and the insured lose the right to indemnity (see Supreme Court Decisions 2004Da59249, Jan. 14, 2005; 2009Da8263, 82640, Feb. 11, 201; 209Da8263, 82640, etc.). In this context, the "third party" includes not only the victim of the accident in question but also the insurer who takes over the tortfeasor's liability for compensation until the disease or injury is cured. The legal nature of the victim's direct claim for compensation against the victim in question is limited to the extent of the insurer's 20.

(B) Nonparty 1

The amount of insurance benefits paid by the Plaintiff to Nonparty 1 from October 20, 2005 to October 20, 2006 is KRW 9,439,750, and the amount 36,329,569 (=51,89,385 x 70%) is 87,95,62 (=125,650,947 x 70%) excluding comparative negligence among the active damages of Nonparty 1, which share the subject matter of a lawsuit with the insurance benefits, is 36,329,569 (=51,89,385 x 70%) excluding comparative negligence among the non-party 1’s lost income 1’s net income x 87,95,62 (i.e., 125,650,947 x 70%) 1,250,000 won, which is the total amount of insurance benefits directly claimed from Defendant 25,25006,4006.

According to the above legal principles, the Plaintiff, in the absence of special circumstances by paying daily insurance benefits (or, at least within the insurance benefits limit given before the Defendant’s insurance company pays insurance benefits), was transferred to Nonparty 1’s direct right to claim against the Defendant insurance company. Therefore, Nonparty 1’s direct right to claim is reduced to the transferred portion. However, in this case, Nonparty 1’s total property damage of Nonparty 1, who is the beneficiary, was 114,845,482 won (or 124,285,232 won -9,439,5750 won), even if the Plaintiff’s insurance benefits of KRW 9,439,750 were compensated to the amount equivalent to the Plaintiff’s insurance benefits of KRW 114,845,482 won (or 124,285,232 won -9,439,750 won). It still remains to be collected from Nonparty 1’s insurance company.

If the beneficiary, who is the victim, is compensated for part of the insurance benefits under the National Health Insurance Act, but the remaining amount of damages still exceeds the insurance limit of the insurance company, the issue is whether the victim may exercise the right to directly claim the insurance proceeds to the insurance company. In this case, the issue is whether the insurance company is extinguished by paying the insurance proceeds to the victim. ① If the beneficiary of the national health insurance is injured due to a third party’s harmful act, the above beneficiary would prevent double benefit from taking advantage of the third party’s health insurance benefit and the ultimate liability for the above damages would be borne by the third party, who is the perpetrator. Thus, if the beneficiary’s actual amount of damages exceeds the scope of the insurer’s insurance benefits, it is reasonable to view that the beneficiary would have taken precedence over the third party’s right to claim the reimbursement of the insurance proceeds even after receiving the insurance benefits, and it would be unreasonable to consider the obligee’s direct subrogation within the scope of the insurer’s right to claim reimbursement against the remaining amount of damages. ② In addition, Article 724(1) of the Commercial Act provides that the insurer may not be considered as the insurer’s right to claim directly against the insured.

Ultimately, even if the amount of damage was compensated by the amount of 114,845,750 won of the insurance benefits at KRW 124,285,232 of the property damage, Nonparty 1 still remains within KRW 114,845,482 of the insurance benefits, and this exceeds the total amount of KRW 41,250,00 of the insurance benefits that Nonparty 1 is entitled to receive from Defendant insurance company, Nonparty 1 is duly paid from Defendant insurance company the amount of the above insurance proceeds. Accordingly, Defendant insurance company’s obligation to pay the insurance proceeds has ceased to exist. Thus, Defendant insurance company’s assertion is reasonable [the insurance proceeds of the former or Defendant insurance company are the sum of the insurance proceeds according to the injury grade corresponding to the positive damage and the insurance proceeds according to the remaining income amount corresponding to the injury grade, and the damage claim subrogated by the Plaintiff is limited to KRW 750,500,000 of the insurance benefits of Defendant insurance company within KRW 500,000,000,0000.

(C) Nonparty 2

The amount of insurance benefits paid by the Plaintiff to Nonparty 2 from October 20, 2005 to January 10, 2007 is KRW 8,958,190. Of the active damages of Nonparty 2, which share the subject matter of a lawsuit with the insurance benefits, the amount excluding comparative negligence, is KRW 43,87,575 (=62,682,250 x 70%) [56,040,714 (=80,058,164 x 70%) [the amount excluding comparative negligence among the non-party 2's lost income x 56,04 x 70%); the amount of direct claim for insurance benefits paid by the Plaintiff to Defendant Hyundai Sea is equivalent to KRW 21,00,000; the amount of direct claim for insurance benefits paid by the non-party 2 against Defendant Mez fire is equivalent to KRW 15,500,000,000,000 for Defendant 250.

As a result, Nonparty 2 still remains at KRW 90,958,199 of the insurance benefits at KRW 99,918,289, even if the damage was compensated by the amount equivalent to KRW 8,958,190 of the insurance benefits, and as long as Nonparty 2 exceeds KRW 35,00,000,00 of the insurance proceeds that the Defendant insurance company can receive from the Defendant insurance company, Nonparty 2 was duly paid from the Defendant insurance company the amount equivalent to the above insurance proceeds, and the obligation to pay the insurance proceeds of the Defendant insurance company was extinguished, the argument of the Defendant insurance company is reasonable [ further, the damage claim that the Plaintiff may subrogate is limited to KRW 20,00,000 according to the degree of injury of the Defendant insurance company (Defendant Hyundai Sea 15,000 + KRW 5,000,000,000 of the insurance benefits + the amount calculated by deducting the active negligence of Nonparty 2, which is the subject matter of the insurance benefits and the subject matter of the lawsuit, the Plaintiff’s damage still remains at KRW 4387,57,5,509,509.

(D) Nonparty 3

The insurance benefits paid by the Plaintiff to Nonparty 3 from October 20, 2005 to February 24, 2006 are 12,281,300 won, and the active damages of Nonparty 3, which share the subject matter of a lawsuit with the insurance benefits, are 64,838,342 won (the lost income of Nonparty 3 is 56,785,202 won), and the amount of the direct claim of the insurance benefits the Plaintiff owns against Defendant Hyundai Sea is 17,400,000 won, and the amount of the direct claim of the insurance benefits the Plaintiff owns against Defendant Mmerz fire is 20,000 won. Nonparty 3 received the insurance benefits from the Plaintiff on April 4, 2006 (the Defendant Hyundai Sea) 23 million won, and around April 2006 (the Defendant’s fire) 2,200,000 won, as seen earlier.

In conclusion, Nonparty 3 still remains at KRW 129,342,244 of the insurance benefits in KRW 121,623,544 of the property damage, even if the damage was compensated by the amount equivalent to KRW 12,281,30 of the insurance benefits, and as long as Nonparty 3’s total amount exceeds KRW 37,40,000 of the insurance benefits that the Defendant is entitled to receive from the Defendant insurance company, Nonparty 3’s obligation to pay the above insurance benefits was extinguished by duly receiving the amount equivalent to the above insurance benefits from the Defendant insurance company. Thus, Nonparty 3’s assertion is reasonable [ further, the damage claim on which the Plaintiff is entitled to be subrogated by the Defendant insurance company is limited to KRW 30,00,000 according to the injury grade of the Defendant insurance company (Defendant Hyundai Sea 15,000 + Defendant 3’s active damage 64,838,342,500,000 of the insurance benefits and the subject matter of the lawsuit against Nonparty 3, the Plaintiff’s damage still exceeds KRW 3252,3005,2500.

3. Conclusion

Therefore, Defendant 1 sought payment of damages for delay calculated at the rate of 5% per annum from March 7, 2007 to July 9, 2010, which is the day following the date of the final decision of the first instance as requested by the Plaintiff with respect to KRW 30,679,240 and these KRW 27,483,253, among the above costs, from March 7, 2007 to the date of the decision of the first instance (the plaintiff seeks payment of damages for delay calculated at the rate of 20% per annum from September 4, 2008, the day following the day of delivery of the complaint to the insurance company, but as long as part of the plaintiff's claim against the defendant 1 was accepted in the first instance court, it is reasonable that the plaintiff 1 raised an objection against the defendant 1 until the date of the decision of the first instance to the extent that the plaintiff's claim for damages for delay calculated at the rate of 5% per annum from the next day of the first instance judgment to the date of the judgment against the defendant 1's.

[Attachment] Calculation Table of Damages: omitted

Judges Mansung (Presiding Judge)

1) The first instance judgment of the above damages lawsuit recognized this part of the remaining disability grade as class 7-12 (32 million won) and ordered the payment of additional KRW 15 million to the non-party 1 on the defendant Matz fire, other than KRW 15 million paid by the provisional disposition order. However, in the appellate court, it is reasonable to view this part of the remaining disability grade as claimed by the defendant Matz fire in light of the fact that the decision to adjust the claim against the non-party 1 on the part of the non-party 1 on the part of the appellate court became final and conclusive.

2) The first instance judgment in the above damages lawsuit recognized this part of the injury grade as Class 1 9 (15 million won) and ordered the payment of KRW 15 million to the non-party 2 of the above damages amounting to KRW 15 million, which was paid by the provisional disposition order to the non-party 2. However, in the appellate court, it is reasonable to view this part of the injury grade to be the content of the defendant merz fire in light of the confirmation of the mediation decision to waive the claim against the non-party 2's claim against the defendant merz fire.