As a legal guardian B, a guardian B

2. C.

3. D.

E Company

1. Regarding the plaintiffs' grounds of appeal

(1) The lower court determined that, solely on the grounds that (i) the deceased actually operated the Defendant Company and K Co., Ltd. (hereinafter “K”) and worked for the Defendant Company and K Co., Ltd. (hereinafter “K”), K’s continuous work period, which is the basis for calculating the deceased’s retirement allowance, does not include the period during which K had worked in K; (ii) the deceased’s claim for retirement allowance for the period from July 13, 200 to October 13, 2009, 11, and 14 days after the date of retirement, until September 30, 2009, the period during which the deceased worked in the Defendant Company had expired after the lapse of 14 days from the date of retirement; and (iii) the deceased’s retirement allowance for the period from the Defendant Company from October 1, 2002 to September 30, 2009 to the Defendant Company’s receipt of the Plaintiffs’ retirement allowance from September 10, 2009 to the date of interim payment.

(2) Examining the records, the judgment of the court below that the deceased's retirement allowance for the period of service at the defendant company from October 1, 2002 to September 30, 2009 was made interim settlement on September 22, 2009 is justified. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the burden of proof.

(3) However, the lower court’s determination that the period of continuous service, which serves as the basis for calculating the deceased’s retirement allowance, does not include the period of continuous service at K, is difficult to accept for the following reasons.

In principle, the transfer of a worker to another company that is separate from the company to which he/she is employed to be engaged in the business of the other company becomes effective with the consent of the employee. In the case of transfer between various types of business and affiliated companies in the company group that carry out economic activities with a close relation to the capital, the organization of executives, business activities, etc., even though the employee, who submitted a resignation to the previous affiliated company and received retirement benefits, was employed in the form of a company re-employment into another affiliated company after receiving the retirement benefits, it is merely a type of retirement and re-employment in accordance with the unilateral decision made in accordance with the management policy of the company group or affiliated company, not a worker's own, but a change in the contents and place of business of the employee before and after the transfer, and if the substance of the transfer is similar to or is merely a change in the position between the affiliated companies, it shall not be deemed that the employee consented to the division of continued work as a person even if he/she received the retirement benefits through such form, it shall not be deemed that the employee consented to the continued work (see Supreme Court Decision 2007Da31397.

According to the records, ① after becoming a member of K on September 6, 1989, K-I and K-I and the defendant company were employed again for the defendant company on October 1, 2002. The defendant company had been employed for the defendant company until the accident of this case. ② The certified director of the defendant company is the representative director, S, 0 directors, and T-I will be the representative director of K-I and T-I will be 0, and the actual manager of two companies will be 0, K-I will be 9. The defendant company and K-I will be employed for the defendant company for the purpose of the change of the name of K-I and K-I and K-I will be 9. The two companies will be composed of 'I-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.

Examining these circumstances in accordance with the above legal principles, even if the deceased was employed in K on September 6, 1989, and the defendant company and K used to enter the defendant company on October 1, 2002 by preparing an employment contract between the defendant company and the defendant company on October 1, 2002, it cannot be deemed that the deceased consented to the division of continuous work, and therefore, it is reasonable to view that the deceased succeeded to the defendant company without the interruption of continuous work relationship.

(4) As such, insofar as the deceased’s continued employment relationship was not severed and it was succeeded to the Defendant Company, an agreement on interim settlement was concluded only for a part of the continuous employment period prior to the interim settlement of retirement allowances from 1.0 to 30.9.30, 2009. As such, for the period during which there was no agreement on interim settlement of accounts, the claim for retirement allowances occurred on September 29, 2010, and the extinctive prescription for such agreement runs from the final retirement (see Supreme Court Decision 2012Da41045, Oct. 25, 2012).

Therefore, it is also difficult to accept the judgment of the court below that held that the deceased's claim for retirement allowance for the period from July 13, 200 to October 30 of that year was terminated by prescription after the lapse of three years from November 13 to 14th of that year from the date of retirement, or that the deposit made by the defendant company on June 7, 201 on the premise that the remaining payment was effective deposit for the remaining retirement pay. (In addition, it is difficult to accept the judgment of the court below that the defendant company deposited only the amount equivalent to retirement allowance except for the interest on retirement allowance for the period from October 1, 2009 to September 29, 201, which was the date of the accident in this case)

(5) Therefore, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the continuous period of employment, which is the basis of the calculation of retirement allowances.

2. As to the Defendant’s ground of appeal

(1) In accordance with the evidence in its holding, the lower court acknowledged the fact that four employees of the Defendant Company were in the place where the instant accommodation had been used as a lodging house; that, at the time of the instant accident, H used the front of the instant lodging house and turned on the electric steering board; H used the electric steering board; and that H used the electric steering board again to put on a stoper outside the instant lodging place; and that H used the electric steering board again.

Under the above facts, the lower court determined that: (a) the Defendant Company violated the duty to take necessary measures, such as improving the human and physical environment, so that the employee could not harm his life or body, etc. in the course of providing labor; and (b) the Deceased’s failure to connect the instant vessel outside the instant accommodation to disclose the surrounding area in light of the headlight of the instant vehicle; (c) there was a proximate causal link between the instant vessel and the instant accident; and (d) there was a limit in the case of the instant building, and thus, there was a difference between the instant vessel’s night and the instant accident; and (c) there was a limit in the case of the instant building, and thus, it could not be deemed that the Defendant Company could not have predicted the instant accident.

(2) The record reveals that H’s failure to connect the electric power line outside the accommodation of the instant vehicle to the scene of the instant accident is right and wrong, and there is no violation of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby exceeding the bounds of the principle of free evaluation of evidence.

(3) However, in order to recognize an employer’s liability for damages on account of a breach of duty of protection, the accident must not only be related to the employee’s work, but also be likely to have an ordinary accident. Such predictability should be determined by taking into account the specific circumstances at the time of the accident (see Supreme Court Decision 9Da56734, Jul. 27, 2001).

According to the records, the Defendant Company’s employees used electricity in the instant accommodation; (1) the frequency and situation of refining electricity at the instant accommodation; and (2) the Defendant Company’s management status of the instant accommodation without any material, etc., were full-time to turn on the electric board at the time of the instant accident. The circumstance alone makes it difficult to readily conclude that the cause of power failure that occurred at the instant accommodation was the Defendant Company’s management error; and (2) the instant accident was not directly caused by the power failure that occurred at the instant accommodation; and (3) the Defendant Company’s accident was not the occurrence of the instant accident, i.e., the Defendant’s string of the instant vehicle, without being exposed to the seat of the instant vehicle; and (b) the Deceased’s string of the instant vehicle without being exposed to such fact; and (c) the Defendant’s string of the instant vehicle, which appears to have been equipped with the Defendant Company’s seat at the time of the instant accommodation to reveal the Defendant’s surrounding situation of the instant vehicle for the purpose of convering the instant vehicle.

Examining these circumstances in accordance with the aforementioned legal principles, it is difficult to deem that the Defendant Company could have predicted or predicted the instant accident.

(4) Therefore, the lower court’s judgment on the premise that the Defendant Company could have predicted or predicted the instant accident is erroneous in exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or in misapprehending the legal doctrine on the liability for damages caused by the violation of the duty of protection.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-tae

Chief Justice Cho Jae-hee