임의비급여 부당이득반환청구소송에서의 채권자대위법리 적용에 관한 고찰 - 맘모톰 절제술 관련 판례의 검토를 중심으로 -

Discretionary grant refers to cases whereby a health facility renders discretionary, non-benefit medical care and receives the medical fee from the patient, notwithstanding that the care is not covered as prescribed by the National Health Insurance Act and without abiding by the standards and procedures outlined by the relevant laws of medical payment. While actual damage medical insurance does not cover discretionary grants in accordance with the terms and conditions, there are rampant instances in which the health facilities bill the entire discretionary grant to the patient, who then files claim for the bill and receives it from the insurance provider. Such discretionary grant care is directly linked to the deterioration of the loss rate of the actual damage medical insurance and may ultimately result in hiked premium, effecting even the newly subscribing members. After the insurance providers became aware of this problem surrounding the discretionary grant, they filed a lawsuit against the health facilities, claiming the return of unfair profits. The suit for discretionary grant compensation for unfair profits gained by the infringer is ordinarily filed by the insurance provider against the insured, with the discretionary grant compensation for unfair profits gained by the infringer of the insured as the preserved right of the creditor; the insured becomes subrogated to the right of action against the health facility’s discretionary grant compensation for unfair profits gained by the infringer. In the suit for discretionary grant compensation for unfair profits gained by the infringer lawsuit, the health facility claims that the insurance provider's exercising of subrogation rights is illegitimate, as it lacks the requirement for the necessity of preservation: there is no proof of the insured’s (the debtor) insolvency and it may be an unfair interference to the insured’s freedom to manage assets. Moreover, the health facility also claims exceptional legality of the discretionary grant, condictio indebiti with ill will, violation of the duty to specify and explain the exemption of discretionary grant under the terms and conditions, and unfair terms as grounds for defense. Further, in the event that the insurance provider appropriates the discretionary grant medical fee compensation for unfair profits gained by the infringer from the insured and files the claim themselves to the healthfacility, the question of whether the transfer of claim falls under litigation trust is also the focal point of the lawsuit. Also, illegal acts committed by health facilities that have performed procedures under discretionary grant could be a vital focus in the lawsuit. One of the most highly publicized discretionary grant lawsuit involves the mammotome biopsy, a currently ongoing litigation. The mammotome biospsy is a surgical procedure that uses mammotome, equipment that collects and examines the biopsy by using a vacuum device and a needle attached with a spinning incisor to cut a portion of the breast, to remove a breast tumor. Before the mammotome biopsy was recognized as new medical technology on July 26, 2019, it did not pass the new medical technology assessment on two occasions due to reasons such as safety and usefulness, and for this reason, was categorized as a discretionary grant procedure; thus, insurance providers filed a discretionary grant compensation for unfair profits gained by the infringer lawsuit against the health facilities that received non-covered medical service fees for mammotome biopsies that were conducted before July 2019. Some lower courts dismissed the cases, accepting the health facilities’ claims and citing illegitimacy of the insurance provider’s exercising of subrogation rights, but the recent ruling by the Suwon District Court on November 3, 2011, Case 2019 Ga-Dan 559565, garnered much attention when it stated that discretionary grant claims filed by the health facilities for procedures that have not been approved as new medical technology are a violation of the National Health Insurance Act and thus establish the insured’s compensation for unfair profits gained by the infringer against the health facilities, and for the insurance provider’s right of subrogation, the court ruled that the mitigation of insolvency conditions must be recognized. This ruling particularly carries significance in that it is a comprehensive ruling on a legal principal of a discretionary grant that includes the subrogation rights by excluding the health facilities’ ground for defense such as violation of duty to specify and explain the terms and conditions and condictio indebiti claims in the reason for ruling. This paper first analyzes the insurance provider’s legal principles related to the exercising of subrogation rights and the lower courts’ legal precedents on the mammotome procedures, as well as the ruling by the Suwon District Court on November 3, 2011, Case 2019 Ga-Dan 559565, that cites the insurance provider’s compensation for unfair profits gained by the infringer, and conducts legal examinations on various grounds for defense (apart from subrogation rights) raised by the health facilities to find application in other discretionary grant cases, including litigations that are pending in the Supreme Court. This paper’s significance lies in the practical application of the discretionary grant compensation for unfair profits gained by the infringer suit that are currently in the process of litigation, and by extension, in the hope of forward-looking decisions by the court as well as systemic improvements on the discretionary grant medical treatments by health facilities in terms of providing a stable operation of the actual damage medical insurance framework that are in the best interest of the public.