금전채권자의 채권자대위권 행사와 보전의 필요성 - 대법원 2022. 8. 25. 선고 2019다229202 전원합의체 판결에 대한 검토를 중심으로 -

This article examines a recent Supreme Court Decision (dated August 25, 2022, 2019Da229202), where an insurance company exercised its subrogation right against the hospital which had given medical treatment to the insured person. The insured person paid the medical fee to the hospital, and the insurance company gave the insurance money to the insured person. It later turned out that the national health insurance law excluded such treatment from being covered by the national health insurance. This rendered both the medical treatment and the benefit legally void, which made the medical fee unjust unrichment on the hospital’s side and the insurance money on the insured person’s side. The majority opinion of the said Decision stated that the insurance company was not allowed to exercise its subrogation right against the hospital, due to the fact that the company could collect the money from each insured person. According to the majority opinion, the necessity requirement of subrogation claim means that the debtor (the insured person in this case) has to be insolvent. This article challenges the validity of such interpretation, and proposes different interpretation which focuses on the element of the close connection between the subrogating creditor’s right and the subrogated right. The latter interpretation better explains the past Decisions of the Supreme Court which the said Decision refused to overrule, and ensures that the creditor’s right of subrogation functions more effectively.