질병보험에 관한 입법론적 검토

This study highlights the need for legislative amendments to expand the Commercial Act provisions governing private health insurance, which plays a crucial role alongside the National Health Insurance in our healthcare system. Currently, the Commercial Act contains only two articles (Article 739-2 and Article 739-3) addressing private health insurance, forcing courts to rely solely on policy interpretation. This undermines legal certainty and predictability. The author presents key issues that must be reviewed in future Commercial Act revisions: the definition and types of sickness(disease) insurance, the applicability of the doctrine of superfluous insurance and insurer subrogation, and the issue of gross negligence liability. First, examined the definition and types of disease insurance, pointing out that while indemnity-type sickness insurance has characteristics of property insurance and fixed-sum-type sickness insurance has characteristics of life insurance, there is no distinction within the legal system. Second, analyzed the applicability of duplicate insurance, confirming that while the application of property insurance provisions is necessary for indemnity-type insurance, legislative adjustments are also needed for fixed-sum-type insurance to prevent moral hazard. Third, regarding subrogation by the insurer, it pointed out the limitations of the current Commercial Act Article 729 and the absence of explicit provisions concerning health insurance. It particularly suggested that, considering the possibility of third-party torts, recognition of subrogation rights through contractual subrogation is necessary even in fixed-amount insurance. Fourth, regarding whether insurers should be exempted from liability for insurance incidents caused by gross negligence on the part of the policyholder, it high- lighted the problem of unclear current regulations concerning whether property insurance provisions or life insurance provisions should apply to disease insurance. It emphasized the need to establish a separate regulatory framework reflecting the characteristics and risk structure of disease insurance as a distinct insurance type. Future revisions to the Commercial Act are expected to enhance predictability and legal certainty for contracting parties through systematic improvements in the classification of health insurance types, the scope of application for duplicate insurance and insurer subro- gation, and gross negligence exemption provisions. This is anticipated to simultaneously promote the sound development of the health insurance market and safeguard public health.