제3보험에서의 손해사정 의무화 규정에 대한 재검토

When an insured event occurs after the conclusion of an insurance contract, the insurer must pay insurance proceeds in accordance with the terms of the contract. In practice, the amount payable is determined through procedures for investigating and evaluating the loss and calculating the insurance benefits. While the policyholder or insured (the insurance consumer) expects the proceeds to be calculated fairly and reasonably, the insurer has a legitimate need to manage the appropriateness of the amount paid. Against this backdrop of inherent tension, the loss adjustment system has functioned as one of the core elements of the insurance business by (i) securing fairness and expertise in the assessment of loss and the calculation of insurance benefits arising from insured events, (ii) mitigating information asymmetry and protecting consumer interests, and (iii) preventing and reducing disputes. In Korea, the loss adjustment system was introduced through the 1977 amendment to the Insurance Business Act, and, since 2011, the statutory duty to employ or appoint (including by outsourcing) licensed loss adjusters has been extended to third-sector insurance products (accident, sickness, and long-term care insurance). However, given the benefit structure of third-sector insurance and the way claims are handled in practice, a fundamental reassessment is required as to whether the current regime—which imposes a uniform loss-adjustment obligation across third-sector insurance—accords with the essence of loss adjustment and whether its costs and regulatory effects are justified. With this problem awareness, this Article first clarifies the concepts of “loss” and “loss adjustment” by reference to Articles 185 and 188 of the Insurance Business Act and examines the essence of loss adjustment. In particular, focusing on the fact that Article 185 defines loss adjustment as the “assessment of the amount of loss and the amount of insurance benefits resulting from an insured event,” this Article concludes that, as a matter of principle, the loss adjustment system is required only in domains where an assessment of “loss amount/insurance benefits” is substantively necessary. Further, although the tasks enumerated in Article 188—verification of loss occurrence, assessment of the appropriateness of applying policy terms and relevant laws, assessment of loss amount and insurance benefits, preparation and submission of relevant documents on behalf of the parties, and the provision of opinions to the insurer—may, in practice, be performed together in the course of claim handling, it is difficult to regard all of them as exclusive or inherently reserved to licensed loss adjusters. In other words, while Article 188 reflects, in regulatory form, the practice of “loss adjustment in a broad sense,” the definitional provision that undergirds the qualification system (Article 185) points, in essence, to the technical and factual evaluative act of assessing “loss amount/insurance benefits.” Accordingly, the duty to employ or appoint (including by outsourcing) loss adjusters should, in principle, be interpreted as limited to situations where that essential function is required. Next, this Article classifies third-sector insurance benefit structures into fixed-benefit and indemnity-benefit types and examines whether an independent procedure for “assessment of loss amount/insurance benefits” can be meaningfully established (or operate in substance) in each area. In fixed-benefit third-sector insurance, claims turn primarily on verifying the occurrence of the insured event and the satisfaction of factual requirements such as disability grades; there is limited room for loss adjustment in the traditional sense of evaluating the magnitude of loss to calculate the benefit amount. Even in indemnity-benefit third-sector insurance (most notably indemnity medical expense insurance), the payable amount tends to be calculated on the basis of standardized coverage structures and formulas, premised on documentary proof such as receipts and itemized medical bills. Moreover, judgments regarding the appropriateness of medical treatment, medical causation, or disability are, by their nature, within the professional domain of medical practitioners. As a result, in third-sector insurance, the involvement of loss adjusters tends in practice to be substituted by general claim-handling functions such as payment review, document screening, and accident investigation, rather than “loss evaluation/assessment” in the strict sense. This raises doubts as to whether mandatory loss adjustment in third-sector insurance is actually achieving its normative aims (enhancing fairness and expertise). In addition, examining whether reductions based on pre-existing conditions in fixed-benefit third-sector coverage can justify the need for loss adjustment, this Article finds that, considering policy structures, judicial approaches, and practical operations, determining the degree of contribution from pre-existing conditions is difficult to convert into a loss adjuster’s “loss assessment” and is instead largely driven by medical judgment; this limits its capacity to justify a blanket loss-adjustment obligation across third-sector insurance. Meanwhile, a comparative review of major jurisdictions—such as the United States, the United Kingdom, Japan, France, and Germany—confirms that it is not common to impose a general legal duty, in personal insurance (third-sector insurance), to employ or appoint qualified loss adjusters. Rather, the loss adjustment function is concentrated in property and automobile insurance, where the assessment of actual loss is necessary, whereas bodily injury and health insurance are handled through insurers’ internal review processes or the judgments of medical experts. Accordingly, mandatory loss adjustment in third-sector insurance appears to be less an “international standard” than a domestically chosen regulatory design, reinforcing the need for reconsideration. In conclusion, from the standpoint of the statutory definition of loss adjustment (Article 185 of the Insurance Business Act) and the system’s original purpose (the fair and prompt assessment of loss amounts and insurance benefits), mandatory loss adjustment for third-sector insurance should be redesigned and confined to the scope in which an “assessment of the amount of loss and the amount of insurance benefits” is substantively necessary.