【Holding】
Whether the amount in excess of the cap on out-of-pocket expenses borne by the National Health Insurance Service under Article 44(2) of the former National Health Insurance Act constitutes the portion of medical care benefit costs borne by the Service (affirmative), and, where the National Health Insurance Service subsequently refunds to a policyholder, etc. the amount exceeding the cap on out-of-pocket expenses under that provision, the time at which it acquires, under Article 58(1) of the National Health Insurance Act, the right of indemnity against a third party corresponding to the subsequent refund (= when the Service assumes the actual burden of medical expenses by paying the subsequent refund to the policyholder, etc.)
【Summary of Decision】
Article 44(2) of the former National Health Insurance Act (before being amended by Act No. 19420, May 19, 2023) provides that where the annual total of the co-payments of a policyholder or dependent (hereinafter "policyholder, etc.") exceeds the amount prescribed by Presidential Decree (hereinafter the "cap on out-of-pocket expenses"), the National Health Insurance Service (hereinafter the "Service") shall bear the excess amount; accordingly, the amount in excess of the cap on out-of-pocket expenses constitutes the portion of medical care benefit costs borne by the Service. However, where the Service subsequently refunds to the policyholder, etc. the amount exceeding the cap on out-of-pocket expenses under that provision (hereinafter "subsequent refund"), the time at which the Service acquires, under Article 58(1) of the National Health Insurance Act, the right of indemnity against a third party corresponding to the subsequent refund is properly regarded as being not the time of the medical care benefits but the time when the Service assumes the actual burden of medical expenses by paying the subsequent refund to the policyholder, etc. The reasons are as follows.
① Even though the Service's subsequent refund is the amount exceeding the cap on out-of-pocket expenses and is ultimately to be borne by the Service, there is no express statutory provision as to the time at which the Service acquires the right of indemnity against a third party, that is, the time at which the Service receives from the policyholder, etc. the transfer of the claim for damages corresponding to the subsequent refund.
② In the case of the ordinary portion borne by the Service, where the Service bears the medical care benefit costs from the outset and no actual cost burden arises for the policyholder, etc., the Service acquires the right of indemnity against a third party when the policyholder, etc. receives treatment at a medical care institution. However, unlike the ordinary portion borne by the Service, the subsequent refund has the special feature that the policyholder, etc. first bears the medical expenses vis-a-vis the medical care institution, and the Service, after a considerable lapse of time, settles the amount exceeding the cap on out-of-pocket expenses and refunds it to the policyholder, etc. after the fact. Considering this special feature of the subsequent refund, with respect to the amount in excess of the cap on out-of-pocket expenses that is subject to subsequent refund, the Service may be regarded as assuming the actual burden of the medical care benefit costs corresponding to the subsequent refund upon the settlement of the medical care benefit costs when it pays the subsequent refund to the policyholder, etc. Therefore, it is difficult to regard the above legal principle on the time of acquisition of the right of indemnity as applying equally to subsequent refunds.
③ If the Service were regarded as acquiring the policyholder's, etc. claim for damages corresponding to the subsequent refund immediately at the time of the medical care benefits, the policyholder, etc. would lose the claim for damages against the third party while not yet having been reimbursed for the medical expenses actually borne. Under the Service's subsequent refund procedure, the policyholder, etc. receives the subsequent refund from the Service only after a considerable period has passed since disbursing the medical expenses, and holding that the policyholder, etc. cannot exercise the claim for damages corresponding to the subsequent refund until the subsequent refund is paid would unjustly delay the reimbursement of the policyholder's, etc. medical expenses. This is also inconsistent with the purpose of the cap system on out-of-pocket expenses, which was introduced to reduce the medical expense burden of policyholders, etc.
④ From the standpoint of the third party as well, it is often difficult to know the amount of the subsequent refund at least until the Service determines it. If the Service were regarded as acquiring by subrogation the policyholder's, etc. claim for damages against the third party corresponding to the subsequent refund at the time of the medical care benefits, the policyholder's, etc. right to receive performance with respect thereto would be lost, and the effect of the third party's performance to the policyholder, etc. would also, in principle, be denied, so that the third party would bear the risk of double payment. This would unjustly shift to the third party the costs or risks arising from the cap system on out-of-pocket expenses and the subsequent refund procedure. Considering these points, it accords with fairness to regard the Service as acquiring the right of indemnity at the time it assumes the actual burden of the medical care benefit costs by paying the subsequent refund to the policyholder, etc.
【Referenced Statutes】
Article 44(2) of the former National Health Insurance Act (before being amended by Act No. 19420, May 19, 2023); Article 58(1) of the National Health Insurance Act
【Referenced Precedents】
Supreme Court Decision 2015Da231504, April 23, 2019
Supreme Court Decision 2024Da262197, April 3, 2025 (Gong2025Sang, 815)
(Source: Supreme Court Decision 2025Da212067, August 12, 2026 | Judicial Information Disclosure Portal, Precedents)
2026. 10. 14. · By Attorney Dongwoo Shin
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