論全民健康保險之保險關係

全民健保實施後不僅長期面臨財務虧損，也因設置健保署作為單一保險人、允許常住境外之國民參加保險、保險給付範圍之變動調整、保險費之計算與補助等受到質疑，本文為此將基於強調權利義務關係研究之法學觀點，就保險人與保險對象間之保險關係展開討論。此外，為能充分理解全民健保之制度內容，亦將對於作為社會健康保險制度原型之德國法定健康保險，及立法時主要參考之日本社會健康保險法制進行比較法研究，同時探究全民健保之憲法基礎與應具備之基本構造，以建構後續檢討保險關係主體與權利義務關係內容之原理論。本文認為，基於憲法有關人格尊嚴之生活保障、社會國原則與生存權、健康權保障等規定，國家對於遭遇疾病、傷害、懷孕分娩等生活事故之人民，應負有醫療需求之照顧義務，並以推行全民健保方式實踐，且依循自由權保障之理念，亦應尊重人民在保險關係中所具有之權利主體地位，並在憲法保障平等權之規定下，確保人民不得受有不合理之差別待遇。另者，在以保險原理作為運作基礎之同時，全民健保必須採行相互扶助原理與強制參加之制度設計，並課以雇主負擔部分保險費之義務，始能合於憲法要求之社會保險，亦可在立法者裁量後，決定由國家負擔部分財源。健保法為整合原有各項社會保險制度之給付與追求專業、效率之目的，也受限於現實上不存在得以出任保險人之社會團體，乃在立法時設置行機關組織之健保署擔任單一保險人，雖因此具有相當之保險規模，亦有利於維持財政安定，然對於保險費率與保險給付範圍不具決定權，卻導致經營成敗之權責不清，且與主管機關之衛福部難以區別，更容易受到國會與衛福部之不當干預。至於二代健保所設置之「健保會」，則受限於代表產生之方式不具正當性，無法藉此保障付費者之程序參與權。其次，健保法原則上以具有繼續性之生活居住事實，作為納入保險對象之標準，且要求外國人必須具有合法之居留資格始得參加保險，原則上固無不妥。然健保法依職業或身分區分被保險人，並提供不同比例之保險費補助，則非合理公平，另對於「眷屬」之規範不當，亦使得部分仰賴他人扶養以維持生計者，卻無法以眷屬身分投保，以及具有相當資力之無職業者，竟得以「眷屬」身分投保後負擔不相應之保險費，亟待改正。此外，「投保單位」既是為協助保險人所設，自應定位為健保署之「履行輔助人」，並將履行義務時所生之不利效果，歸由健保署承擔。保險關係應是基於健保署向保險對象製發保險憑證之行政處分而發生，畢竟強制參加也具有賦與人民請求納保之權利性格，故健保署對於投保申請所為之決定，將對於人民單方面發生法律效果，並因特別規定而得以溯及生效。又健保法未能明定保險給付之基準，造成參加者無從事先預測及自主規劃健康，爭議案件也無法有效解決，另對於適用事前審查之給付項目未設置及時之救濟程序，亦未能充分保障參加者之權利，惟允許保險對象併用保險醫療給付與自費醫療，則值得給予正面評價，但應注意維護保險對象之資訊權與自主決定權。末在保險費方面，保險人應以健保法明定之方式追求財務均衡，不得透過借款以彌補虧損，且為遵循法律保留原則，除明定投保金額之採計與保險費率之上限外，亦應對於推估保險整體支出數額之方式加以規範。再者，現行有關投保金額之採計、依眷屬人數計收保險費、依保險對象之身分或職業給予不同比例之保險費補助，及就非在國內常住國人未按實際經濟能力計收保險費等，均違反「負擔公平性原理」，且二代健保實施「補充保費」制度後，仍留有未能將被保險人之全部所得與財產價值納入評價負擔保險費能力之問題，應予修正檢討。

關鍵字

全民健保；二代健保；健保法；社會健康保險；保險關係；醫療需求照顧義務；相互扶助原理

並列摘要

The National Health Insurance (NHI) has been faced with financial losses for a long time after implementation, and also been questioned due to setting National Health Insurance Administration as the single insurer, allowing nationals residing overseas to participate, the adjustment of insurance benefits, the calculation and subsidy of insurance premium. In view of this, this paper will discuss the insurance relationship between the insurer and the insured on a legal basis of the emphasis on the parties’ rights and obligations. Besides, in order to fully understand the content of NHI, the study of comparative law will also be conducted on the German Statutory Health Care Insurance as the prototype of the social health insurance system and the Japanese social health insurance legal system which is mainly referenced in legislation. In the meanwhile, this paper will discuss the constitutional basis and basic structure of NHI as well, in order to construct a fundamental theory for the follow-up reviews. Based on the provisions of the Constitution concerning life guarantees for human dignity, the principle of social welfare state, the right to existence and the right to health, the state shall burden an obligation to take care of the medical needs of people who encounter life accidents such as illness, injury, pregnancy and childbirth, and fulfill it by the implementation of NHI. Besides, the rights of the insured shall be highly respected in accordance with the concept of the protection of the right to freedom, and under the request of right to equal, people shall not be treated with discrimination. Additionally, while applying the insurance principle as the operating basis, NHI must adopt mutual assistance principle and the design of mandatory participation, and impose obligations on employers to bear part of the insurance premiums in order to meet the requirements of the Constitution of social insurance. Further, the state should bear part of the financial resources after the discretion of legislators. The National Health Insurance Act was designed to integrate the benefits of the existing social insurance system and with the pursuit of professionalism and efficiency, but also limited by the fact that there are no social organizations that can serve as insurers. Therefore, the government agency, namely the National Health Insurance Administration, was established as the single insurer in the legislation, which has the beneficial of maintaining financial stability with the considerable insurance scale. However, the National Health Insurance Administration has no power to determine the insurance premium rate and the insurance benefits at present, which leads to unclear responsibilities of operations and the difficultly of distinguishing from the Ministry of Health and Welfare, who is the competent authority of the National Health Insurance Act. Besides, the National Health Insurance Administration may confront with improper interference from Congress and the Ministry of Health and Welfare. As for the “National Health Insurance Committee” set up by the second generation NHI, it is limited by the way in which representatives are generated, which cannot guarantee the payer's right to participate in the process. The National Health Insurance Act regards the facts of continuous living and residence as the criteria for being the insured, and requires foreigners to have legal residence qualification for participating, should be considered appropriate in principle. However, it is unreasonable for the National Health Insurance Act to identify the insured by occupation or status, and to provide different subsidies to insurance premiums. In addition, the improper regulation of “dependents” has also made some people who depend on others to support their livelihoods unable to participate NHI as dependents, while some people with considerable financial resources allowed being “dependents” only because they are unemployed. Besides, in view that the “group insurance applicants” are set up to assist the insurer, it should be positioned as the “performing party” of the National Health Insurance Administration, and the National Health Insurance Administration should bear all the adverse effects when the “group insurance applicants” improperly performing their obligations. The legal relationship between the insurer and the insured in NHI is constituted by the administrative disposition of National Health Insurance Administration as issuing the certificate of insurance to the insured. In view that compulsory participation shall also give people right to participate, the decision of the National Health Insurance Administration on the application for insurance will undoubtedly have external direct effect on the people and have retroactive effect under special provisions. In addition, due to the failure of the National Health Insurance Act to set the criteria for insurance benefits, the insured cannot predict in advance and plan their health care, and the courts also face difficulty to resolve dispute cases. Besides, there were no timely relief procedures designed for the benefit items subject to the prior examination, which may cause damages to the insured’s life or healthy. However, NHI allows the insured to use self-pay medical treatments together with insurance benefits is worthy of positive evaluation, but further administrative regulations should be taken into considered in order to maintain the right to information and independent decision of the insured. Finally, in terms of insurance premiums, the insurer should pursue financial equilibrium only in the manners specified by the National Health Insurance Act, which means borrowings from banks are prohibited. Moreover, in order to comply with the principle of legal reservation, besides specifying the counting of the insured amount and the upper limit of insurance premium rate, the method of estimating the total amount of insurance expenditure should be regulated. Then, the current counting method of the insured amount, the collecting of insurance premium to dependents, different subsidies from state according to the insured’s occupation or status, and insurance premium that are not calculated based on actual economic capacity for non-residents, all violate the affordability test. The last but not the least, although the “supplementary premiums” are being collected after the implementation of second generation NHI, the ability to bear premiums of the insured is still not evaluated in accordance with full income and property value.