사회보험에서의 보험자대위 제한과 직접청구권의 대위 - 국민건강보험의 경우를 중심으로 -

As to the sphere of the concept "the third" as the object of "suborgation of insurance", it's indispensable to take into account not only that the purpose for which this system has been established is to prevent the immunity from responsibility of the responsible and double profit of the victim but that there could be specialties in the insurance which result from the concerning laws or from its proper contract. It can be therefore necessary to reduce the scope of the right of demanding compensation of the insurant when it's not to admit out of regard for the purpose of this system and when the demand for compensation against the responsible that is the insured or against the others who are in similar positions could impede the efficiency of individual insurances. By this reason it could be considered appropriate that the Supreme Court decides to reduce the right of demanding compensation against the responsible who is in the so-called health insurance relation in excluding the responsible from the extent of the third who can be an object of the subrogation. However in the case where the responsible shall be an insured of a liability insurance, it arouse a controversy whether to approve the right or not. Concerning to this question all the Supreme Court rules is that it's possible to subrogate the direct right of action even when it's limited the right of demanding compensation against the responsible in the reason of that the sphere of the third who can be object of the subrogation of insurance is a different problem from another about the right to claim for damage against the responsible which is a direct right of action. This argument that the liability insurant could be an object of the subrogation can be understood from the point of view that the third who is the object of the subrogation is not necessarily the proper responsible. But the characteristic of an individual independent right is not sufficient for justify the different consequence of the subrogation system in that the direct right of action against a liability insurant has a specialty of being subordinate to the right to claim for damage against the responsible. In order to settle this question it's to analyze if it shall be needed to authorize the subrogation in the case at issue, if the subrogation against the responsible shall be a condition for the demand for compensation against liability insurant and if it shall be possible that the insurant invoke the justifications against the demand which are available for a responsible against a demand from a health insurant. It's to present a clue for a solution of this problem that this article is rendered.