• Proceedings of the Korean Society of Computer Information Conference
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• 2014.01a
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• pp.165-168
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• 2014

채권자대위권은 채권자가 자기의 채권을 보전하기 위하여 채무자에 속하는 권리를 행사할 수 있는 권리이다(민법제404조). 채무자의 권리는 채무자가 행사함이 원칙이나 채무자가 제3채무자에 대한 권리를 행사하지 아니함으로 채무자의 책임재산을 제대로 보전하지 않아 총채권자의 공동담보에 부족한 부분이 생길 때에는 채권자로 하여금 채무자의 권리를 행사하여 책임재산의 보전을 꾀할 수 있도록 할 필요가 있고, 이러한 목적을 위한 제도가 바로 채권자대위권제도이다. 그러나 채권자대위권제도는 채권자 취소권에 비해 상대적으로 주목받지 못하고 있는 것이 현실이다. 즉 실제와 현행민법 규정사이에 커다란 괴리가 존재하고 있고, 행사의 범위, 효과에 관한 규정을 두고 있지 않고 있다. 이는 전적으로 학설과 판례에 위임되어 있는 실정이므로 따라서 본 논문에서는 채권자대위권에 관한 문제점을 검토해보고, 정확한 명문규정이나 제도적 장치를 마련하는 제도의 취지 및 목적에 합당할 수 있도록 합리적인 방안을 제시하고자 한다.

• The Korean Society of Law and Medicine
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• v.24 no.2
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• pp.79-117
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• 2023

Among the healthcare-related judgments handed down in 2002, there was a significant ruling on the timing of the duty of explanation, stating that, in order to ensure the exercise of the patient's right to self-determination, the patient must be given time to consider and decide on the risks and side effects of a medical procedure in specific circumstances. In addition, in a case where an insurance company claimed unjust enrichment against a medical institution on behalf of its insureds, the court provided a clear standard by distinguishing between active and passive requirements regarding the need to preserve the right of subrogation of creditors. In the area of medical administration, there was a ruling that clarified that a medical institution's business suspension under the National Health Insurance Act is directed against the medical institution, a ruling that broadly recognized causation in a case of compensation for side effects of corona vaccination, and a ruling on the scope of a medical practitioner's license, such as the use of ultrasound devices by an oriental medicine practitioner. In a case involving a patient's claim for eviction from a medical institution, the court reviewed a ruling on just cause for termination of a hospitalization contract in relation to Article 15(1) of the Medical law.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.87-130
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• 2015

In a case in which National Health Insurance Corporation (NHIC) pays medical care expenses to a victim of a traffic accident resulting in injury or death and asks the assailant for compensation of its share in the medical care expenses, as the precedent treats the subrogation of a claim set by National Health Insurance Act the same as that set by Industrial Accident Compensation Insurance Act, it draws the range of its compensation from the range of deduction, according to the principle of deduction after offsetting and acknowledges the compensation of all medical care expenses borne by the NHIC, within the amount of compensation claimed by the victim. However, both the National Health Insurance Act and the Industrial Accident Compensation Insurance Act are laws that regulate social insurance, but medical care expenses in the National Health Insurance Act have a character of 'an underinsurance that fixes the ratio of indemnification,' while insurance benefit on the Industrial Accident Compensation Insurance Act has a character of full insurance, or focuses on helping the insured that suffered an industrial accident lead a life, approximate to that in the past, regardless of the amount of damages according to its character of social insurance. Therefore, there is no reason to treat the subrogation of a claim on the National Health Insurance Act the same as that on the Industrial Accident Compensation Insurance Act. Since the insured loses the right of claim acquired by the insurer by subrogation in return for receiving a receipt, there is no benefit from receiving insurance in the range. Thus, in a suit in which the insured seeks compensation for damages from the assailant, there is no room for the application of the legal principle of offset of profits and losses, and the range of subrogation of a claim or the amount of deduction from compensation should be decided by the contract between the persons directly involved or a related law. Therefore, it is not reasonable that the precedent draws the range of the NHIC's compensation from the principle of deduction after offsetting. To interpret Clause 1, Article 58 of the National Health Insurance Act that sets the range of the NHIC's compensation uniformly and systematically in combination with Clause 2 of the same article that sets the range of exemption, if the compensation is made first, it is reasonable to fix the range of the NHIC's compensation by multiplying the medical care expenses paid by the ratio of the assailant's liability. This is contrasted with the range of the Korea Labor Welfare Corporation's compensation which covers the total amount of the claim of the insured within the insurance benefit paid in the interpretation of Clauses 1 and 2, Article 87 of the Industrial Accident Compensation Insurance Act. In the meantime, there are doubts about why the profit should be deducted from the amount of compensation claimed, though it is enough for the principle of deduction after offsetting that the precedent took as the premise in judging the range of the NHIC's compensation to deduct the profit made by the victim from the amount of damages, so as to achieve the goal of not attributing profit more than the amount of damage to a victim; whether it is reasonable to attribute all the profit made by the victim to the assailant, while the damages suffered by the victim are distributed fairly; and whether there is concrete validity in actual cases. Therefore, the legal principle of the precedent concerning the range of the NHIC's compensation and the legal principle of the precedent following the principle of deduction after offsetting should be reconsidered.