医疗保险理赔中的代位追偿问题研究——兼评《保险法》和《社会保险法》相关条款

Research on the Subrogation Issue During Medical Insurance Settling

《社会保险法》规定社会医疗保险理赔适用代位追偿原则,且适用情形比《保险法》的规定要宽泛。从防范道德风险的需要出发,我国的商业医疗保险也有必要在理赔中适用代位追偿原则。当医疗保险同其他保险发生竞合时,应该按照一定规则在各保险人之间确定主要赔偿责任和补充赔偿责任,如果医疗保险人承担的赔偿责任超过其应负责任,其可以向其他应负责保险人代位追偿。医疗保险机构的代位追偿权是被保险人行使选择权且保险人履行保险义务后的派生权利,不应该是保险人的选择权。不过,社会医疗保险需要对被保险人的选择权作适当限制。

＂Social Insurance Law＂ states that the subrogation principle is applicable in social medical insurance settling,and more importantly,it is applicable to a wider scope than the subrogation clause in＂ Insurance Law＂. In order to guard against the moral risk, the subrogation principle should also be applied in commercial medical insur- ance settlement. When the medical insurance is concurrent with other insurance, certain rules should be followed for all insurers to determine the main liability and the supplementary liability. If the medical insurers pay the indemnity beyond their liability, the claim rights to other insurers should be subrogated to them. The subrogation of medical in- surer is a derivative right after the insured settles the claims and performs its insurance obligation, and it should not be the option of the insurer. However,it is necessary to restrict the insured＇s option in social medical insurance.