醫療費用保險適用保險代位問題研究

The Principle of Indemnity and Insurance Subrogation－Centered on Medical Expense Insurance

傳統理論認為，損害保險中存在著作為強行法性質的利得禁止原則，保險代位為其下位制度，具有一般約束力。而醫療費用保險雖為人身保險，但其具有損害填補性質，故亦適用之。然而，隨著定額醫療費用保險，乃至實支實付與定額給付選擇型醫療費用保險的出現，實支實付型適用而定額給付型不適用，顯然對同一經濟給付而言缺乏合理性。而認為一律不予適用，特別是兩者選擇型的情形下將實支實付型視為定額給付從而不適用等觀點，均為僅從公平角度出發的結果論，法理依據並不充分。本文在梳理最新學說的基礎上，認為將利得禁止原則分為最狹義、狹義以及廣義三個層面，從而分別具有強行法性質與任意法性質的觀點最具合理性。通常的損害保險必須適用保險代位，而醫療費用保險由於幾無道德風險發生的可能，故應依契約的約定予以處理，無約定的應理解為不予適用。

According to the traditional theory, the principle of indemnity exists in damage insurance, which is a mandatory law in nature, and the insurance subrogation is a subordinate system with general binding effect. Although the medical expense insurance is a type of life insurance, it is also applicable because it has the nature of compensation of damages. However, with the emergence of the rationed medical expenses insurance and even the actual payment and rationed payment selective medical expenses insurance, the view that the actual payment applies while the rationed payment does not is obviously unreasonable for the same economic payment. But the view that it is not applicable, especially in the case of two types of choice, where the type of actual payment deemed to be a fixed amount payment, is the result theory from the angle of justice, and lacks the legal basis. Based on the latest theories, the author thinks that it is reasonable to divide the principle of indemnity into the narrowest sense, the narrowest sense and the broadest sense. Therefore, the view that there is mandatory law and arbitrary law is the most reasonable one. Ordinary damages insurance must apply insurance subrogation, whereas medical expenses insurance should be dealt with by contractual agreement as there is little possibility of moral risk occurring and should be understood as not applicable in the absence of agreement.