The Subrogational or Regressive Nature of Reimbursement Claims

The article discusses the nature of reimbursement claims. A reimbursement claim is a claim that occurs to the one, who made a specific fulfilment for the benefit of another. A fulfilment is most often a payment in cash, but there may also be some other omission, duty or service. The payer’s reimbursement is his right to demand if he has paid more than his share to reimburse him from the joint debtor the portion he paid for him. As a rule, the obligation may be performed by anyone if that person has any legal interest in the obligation being performed. In Slovenian theory and practice, the term subrogation is generally a situation in which a debtor instead of a certain object of the claim performs alternative completion or, when a person enters into a legal position of a creditor, as a result of performing another person’s obligation by contractual or legal duty. In the first case, we are talking about real subrogation, and in the second case about personal subrogation. The article focuses only on the personal subrogation. In theory and practice, it is necessary to clearly distinguish between the subrogational and regressive nature of the reimbursement claim, although due to the inconsistency in the use of terminology, it creates the impression that the concepts of regress and subrogation are substantially the same. This is especially characteristic for the reimbursement claims of Health Insurance Institute of Slovenia and Pension and Disability Insurance Institute of Slovenia, for which instead of remedial construction of the reimbursement claim the subrogational nature of reimbursement claim is more accurate. In case of regressive nature of the reimbursement claim, the enforcer exercises his original right, while the enforcer in case of subrogation exercises the derivative right of the creditor. 

Key words: recourse action, subrogation, original right, derivative right, liability for damages, social security insurance