[2] Persons eligible for insurance benefits under the former Industrial Accident Compensation Insurance Act (=workers under the Labor Standards Act) and the criteria for determining whether they are applicable

[3] The case affirming the judgment of the court below which acknowledged the insurer's duty of compensation who concluded the comprehensive automobile insurance contract with the lessor on the ground that the lessor did not provide labor in subordinate relationship with the victimized worker because the lessor did not directly or indirectly provide labor for the purpose of receiving wages, in case where the lessee's accident occurred to the lessee while the lessor was working at the construction site by driving a truck pursuant to the lease contract

[4] In a case where the Korea Workers' Compensation and Welfare Service has paid temporary layoff benefits to a worker suffering from an accident caused by a third party's act in excess of the lost income during the period of temporary closure, whether the injured worker may subrogate his/her right to claim damages against the third party (negative)

[5] Where an industrial accident occurs due to a joint tort committed by a policyholder and a third party, the scope of the Korea Labor Welfare Corporation may exercise the right to indemnity against the third party

1. As to the ground of appeal on the existence of the duty of indemnity

Article 54(1) of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373 of Apr. 11, 2007; hereinafter the same shall apply) provides that "Where insurance benefits have been paid due to an accident caused by a third party's act, the Corporation shall subrogate the third party of the person who has received the benefits within the limit of the benefits paid: Provided, That this shall not apply in cases where two or more business owners are performing the work by dividing one business at the same place, and the accident occurs due to the different business owners." Thus, "third party" means a person other than the insurer, the insured (the business owner) and the relevant beneficiary, who is without an industrial accident compensation insurance relationship with the affected worker directly or indirectly, and is liable for damages pursuant to the provisions of the Act on the Guarantee of Automobile Accident Compensation or the Civil Act or the State Compensation Act. In addition, in order to become a person entitled to insurance benefits pursuant to the Industrial Accident Compensation Insurance Act, the employer should be liable for damages to the worker under the provisions of the Labor Standards Act regardless of the type of contract or employment contract.

Based on its adopted evidence, the court below acknowledged the following facts: the non-party 1 registered his business with the trade name "○○cick" and operated the instant truck lease business; the reputation industrial development corporation that received construction subcontracting from the gold industry corporation entered into a lease agreement with the non-party 1 on October 4, 2005; the non-party 1 entered into the instant truck lease agreement with the non-party 1; and the non-party 1 entered into the instant construction site upon driving the instant truck in accordance with the above lease agreement; and the non-party 2 suffered from the accident of which the non-party 2, who is a worker belonging to the reputation industry development corporation, did not provide labor for the purpose of receiving wages; the non-party 1 did not provide labor in subordinate relationship with the non-party 1; and the non-party 2 suffered from the accident of this case due to the operation of the instant truck of the non-party 1, who was directly or indirectly damaged, did not have an industrial accident compensation insurance relationship with the non-party 2, who entered into the industrial accident compensation insurance contract."

In addition, even though the Korea Workers' Compensation and Welfare Service deems that an occupational accident caused by the realizing risks of one workplace, such as machinery and equipment in the workplace, is in accord with the social insurance or liability insurance nature of the industrial accident compensation insurance, it is not directly or indirectly in the industrial accident compensation insurance relationship with the victimized worker because the accident in this case is caused by the operation of the truck in this case and is within the risk area taken over by the Defendant through the conclusion of the insurance contract, and the meaning that the plaintiff is ultimately responsible for the industrial accident is determined by the final person in order to prevent the bad circulation of indemnity and reconstruction within the scope of the industrial accident compensation insurance, and it does not purport to compensate or take over the damages caused by the accident in one workplace without asking the circumstance, cause, or perpetrator, and it does not constitute a "accident under Article 54 (1) of the Industrial Accident Compensation Insurance Act" as provided by Article 54 (3) of the Industrial Accident Compensation Insurance Act, and there is no error in the misapprehension of legal principles as to the defendant's liability for compensation as alleged in the ground of appeal.

2. As to the ground of appeal regarding the scope of the liability for reimbursement

If the Korea Workers' Compensation and Welfare Service has paid temporary layoff benefits to a worker suffering from an accident caused by a third party's act in excess of the lost income during the period of temporary closure, even if the aggregate of the above temporary layoff benefits and disability benefits is within the negative damages of the victimized worker during the period of temporary closure, it shall be deducted only from the amount of damages equivalent to the lost income during the period of temporary closure. If temporary layoff benefits exceed the lost income of the worker during the period of temporary closure, the excess amount shall be paid in excess of the actual damages in order to guarantee the minimum living of the worker under medical care due to an injury or disease caused by an occupational reason, and the Korea Workers' Compensation and Welfare Service shall be the final obligor, in light of the nature of such money, the Korea Workers' Compensation and Welfare Service cannot subrogate the third party's right to claim damages against the victimized worker (see Supreme Court Decisions 200Da46867, Dec. 10, 202; 2004Da4868, Sept. 28, 2006). 202.

However, the court below calculated the total amount of temporary disability compensation benefits on the ground that the total amount of KRW 72,549,109, including the temporary disability compensation benefits 26,035,750 and disability benefits 46,513,359, and the total amount of KRW 92,49,109, which were paid by the plaintiff to the non-party 2, who is the damaged worker, is less than the amount excluding the non-party 2's fault portion out of the total amount of lost income of the non-party 2, and accepted part of the plaintiff's claim for compensation amount by calculating the amount of the compensation amount based on the insured's fault ratio based on the amount of damages to be compensated by the non-party 2.

However, in light of the above legal principles, it is difficult to accept such determination by the court below. The court below should have calculated the amount of compensation related to the payment of temporary disability compensation benefits based on the determination of whether the temporary disability compensation benefits paid by the plaintiff is within the scope of compensation paid by the non-party 2, after calculating the amount corresponding to the actual income during the period during which the temporary disability compensation benefits were paid (in calculation, it seems that the amount falls short of the amount of compensation benefits paid by the plaintiff) from among the total amount of actual income loss, and should have calculated the amount of compensation related to the payment of temporary disability compensation benefits by deducting the amount of compensation paid by the non-party 2 from the amount of compensation to the non-party 2, not the insurance benefits, in calculating the amount of compensation to the non-party 2. On the other hand, the scope of the right of compensation should be asserted and proved by the plaintiff, and whether the amount of compensation should be calculated according to any method based on the plaintiff's assertion and evidence. Thus, even if the defendant did not make any assertion in the calculation method, it cannot be deemed the ground for appeal.

However, the court below partially accepted the plaintiff's claim for indemnity through the calculation method as seen earlier. The court below erred by misapprehending the legal principles on the scope of indemnity pursuant to Article 54 (1) of the Industrial Accident Compensation Act, and it is obvious that such illegality affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding temporary disability compensation benefits and the claim for disability benefits shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)