[2] In a case where the average wage of an employee at the time of confirming that an employee was suffering from an occupational disease exceeds the amount of wage in the report on the investigation of labor statistics for an employee of the same kind of occupation, whether a special exception can be applied to calculating the average wage for a patient with an occupational disease as prescribed by Article 38(5

[2] The purpose of Article 38(5) of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373, Apr. 11, 2007); Article 26(2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended by Presidential Decree No. 20142, Jun. 29, 2007); Article 12(2) of the former Enforcement Rule of the Industrial Accident Compensation Insurance Act (wholly amended by Ordinance of the Ministry of Labor No. 304, Jul. 1, 2008) provides for the method of calculating average wages for workers suffering from occupational diseases, such as pneumoconiosis, and it is difficult to diagnose and continue to perform duties without verifying that workers suffered from pneumoconiosis, etc., but it is not proper to calculate average wages based on the amount of wages. In such a case, it is not appropriate to determine average wages based on the amount of average wages of workers under the Industrial Accident Compensation Insurance Act, since it is an occupational category survey for workers to calculate the amount of average wages of the same kind.

1. On the violation of the principle of pleading

Article 26 of the Administrative Litigation Act provides that "the court may, if deemed necessary, conduct an ex officio examination of evidence, and determine facts which the parties have not claimed," thereby recognizing partial exceptions to the principle of pleading. Thus, if the court deems it necessary in administrative litigation, it may conduct an ex officio examination, investigation, and determine it based on the records even if the parties have not clearly asserted facts (see Supreme Court Decision 94Nu5069 delivered on February 14, 1995, etc.).

Examining the record in light of the above legal principles, the court below did not err by misapprehending the principle of pleading or by misapprehending the legal principle of liability for assertion, as it is based on the materials revealed in the record in determining the illegality of the disposition of this case, and the average wage for the deceased-doing (hereinafter “the deceased”) under the Labor Standards Act should be based on ordinary wages. Thus, the defendant did not assert that the disposition of this case was unlawful on the ground that the amount calculated by the special case for calculating the average wage for the patient with occupational illness falls short of the average wage calculated as above.

2. As to the criteria for calculation of temporary layoff benefits for workers with peculiar form of employment

A. (1) Article 38(4) of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373, Apr. 11, 2007; hereinafter referred to as the “former Industrial Accident Compensation Insurance Act”) provides that “Where it is deemed inappropriate to apply the average wage to the employee in calculating insurance benefits due to peculiar work types, as prescribed by the Presidential Decree, the amount calculated according to the calculation method as prescribed by the Presidential Decree, shall be the average wage.”

Accordingly, Article 25-2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 20142 of Jun. 29, 2007; hereinafter “former Enforcement Decree of the Industrial Accident Compensation Insurance Act”) provides that “Where it is deemed inappropriate to apply the average wage due to the unique type of employment, as prescribed by Presidential Decree” in Article 38(4) of the same Act refers to the case of a worker who is employed on a daily basis or who is paid daily wages on a daily basis (hereinafter “daily worker”). However, the proviso and subparagraph 1 of the same Article provide that “if the working conditions of other daily workers engaged in the same kind of work at the time of the occurrence of the cause for calculating the average wage fall under any of the following cases, the daily worker shall be excluded: (a) if the average number of working days of the month immediately preceding the date of the occurrence of the cause for calculating the average wage exceeds the figure of ordinary employment, (c) if it is deemed similar to the factual relation of all the same kind of work, such as labor contract.”

Furthermore, Article 25-3 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act provides that "where there is a wage paid to the relevant worker during one month prior to the date on which the cause for calculating average wage occurred, the amount calculated by multiplying the total amount of the wage paid to the relevant worker during the relevant one month by the labor coefficient publicly notified by the Minister of Labor (hereinafter "ordinary labor coefficient") in consideration of the actual working days of the relevant worker during the said period, etc." in Article 25-3 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act provides that "the amount calculated according to the calculation method as determined by the Presidential Decree" in Article 38 (4) of the Act refers to the amount calculated according to the classification of the following subparagraphs, and the Minister of Labor announced the ordinary labor coefficient as 73/100 on June 30, 200.

As above, the purport of the former Industrial Accident Compensation Insurance Act and the Enforcement Decree thereof stipulating an exception to the average wage, which serves as the basis for insurance benefits, is to eliminate the unreasonable payment of insurance benefits that cover the actual employment income when an accident occurs due to the ordinary wage, in the case of daily workers with less working days due to the characteristics of the form of employment and higher ordinary wages.

(2) According to the records, the deceased was a daily worker who was employed as an employee in the stone assistance and processing work, and actually worked for the stone, and the amount calculated by multiplying 150,000 won per day by 150,000 won per day (1/2 day if he worked for 1/2 day) from the stone. ② The deceased was a daily worker employed for the same kind of work as the deceased from the stone, and the deceased was employed for 3 months or more from the stone as of December 28, 2006 after the diagnosis of pneumoconiosis. ③ However, the monthly working days of the non-party 2 were 12 days in August 2006, September 23, 2006, September 7, 2006, November 18, 2006, and December 15, 2006, the deceased did not receive the national health insurance premium from the deceased and the non-party 2's monthly work days in accordance with the National Health Insurance Rules.

In light of the above form of employment, the working conditions of Nonparty 2, a daily worker engaged in the same kind of work as the deceased in light of the light stones, shall not be deemed to fall under the case where the labor relationship of other daily workers engaged in the same kind of work continues for more than three months, the average number of the monthly working days in the same kind of work exceeds the number of days used as the basis for calculating the coefficient of normal work, or where it is deemed as similar to the ordinary workers engaged in the same kind of work in light of the relevant facts, such as working conditions.

(3) Therefore, the deceased’s average wage should be calculated by multiplying the total amount of wages paid during one month prior to the date on which the cause for calculating the average wage occurred pursuant to Article 38(4) of the former Industrial Accident Compensation Insurance Act, Article 25-3 subparag. 1 of the Enforcement Decree of the same Act, and Article 200-24 of the Ministry of Labor by the number of working days during that period (in this case, the deceased was paid the monthly wage by multiplying 150,000 won per day by the number of working days. As such, the amount calculated by dividing the total amount of wages paid during one month prior to the date on which the cause for calculating the average wage occurred by the number of working days during that period shall be 1.53 by the coefficient of ordinary labor.

B. (1) Meanwhile, the purport of Article 38(5) of the former Industrial Accident Compensation Insurance Act, Article 26(2) of the Enforcement Decree of the same Act, and Article 12(2) of the Enforcement Rule of the same Act, which provide for the method of calculating average wages for workers suffering from occupational illness, are as follows: (a) in the case of certain occupational diseases such as pneumoconiosis, it is difficult to examine them; (b) in the case of workers who have suffered from pneumoconiosis, etc., but have failed to confirm the disease such as pneumoconiosis, and continue to perform their duties; and (c) in the case of occupational diseases, the calculation of average wages based on the amount of wages is not appropriate for the protection of workers; and (d) in such a case, it is aimed at calculating insurance benefits under the Industrial Accident Compensation Insurance Act by using the amount of wages under the labor statistics survey report for workers suffering from occupational diseases as average wages (see Supreme Court Decision 2005Du2810, Apr. 26, 2007).

Therefore, in this case where the average wage calculated pursuant to Article 38(4) of the former Industrial Accident Compensation Insurance Act is more than the amount calculated by the special case for calculating the average wage for a patient with an occupational disease (69,242 won and 94 won), the special case for calculating the average wage for a patient with an occupational disease cannot be applied.

(2) Nevertheless, it is reasonable to calculate the average wage based on 69,242 won calculated on the basis of the special case for calculating the average wage of a patient suffering from occupational illness under Article 38(5) of the former Industrial Accident Compensation Insurance Act, on the ground that the Defendant received the deceased’s wage as a daily wage but the working conditions, etc. are similar to the monthly ordinary worker engaged in the same kind of work. Thus, it is reasonable to determine that the deceased does not constitute a worker with peculiar working conditions, and that the instant disposition which rejected an application for correcting the average wage of

C. The court below held that since the ordinary wage of the deceased exceeds the average wage, the average wage for the deceased should be based on ordinary wage, and further, the non-party 2, who was a daily worker other than the worker engaged in the same kind of work at the time when the deceased was diagnosed with pneumoconiosis was diagnosed, is a daily worker with the employment relationship for not less than 3 months, and thus, the plaintiff's form of work does not constitute "the case where it is deemed inappropriate to apply the average wage due to the peculiar type of work". However, the court below's determination that the disposition of this case

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)