[1] The purpose of the Industrial Accident Compensation Insurance Act increase or decrease of average wages

[2] The case holding that in calculating the average wage, which is the basis for calculating temporary disability compensation benefits to be paid to an employee suffering from an occupational accident, if the wage is retroactively increased after the date of the occupational accident, the amount of temporary disability compensation benefits shall be calculated by increasing the average wage of the employee from

[1] Article 38(3) of the Industrial Accident Compensation Insurance Act, Article 25(1) [Attachment 1] of the Enforcement Decree of the Industrial Accident Compensation Insurance Act / [2] Article 38(3) of the Industrial Accident Compensation Insurance Act, Article 25(1) [Attachment 1] of the Enforcement Decree of the Industrial

[1] Supreme Court Decision 2004Du2103 Decided September 22, 2006 (Gong2006Ha, 1821) Supreme Court Decision 2005Du289 Decided September 22, 2006

[Defendant-Appellee] The Head of Si/Gun/Gu (Law Office, Attorney Kim Nam-nam et al., Counsel for defendant-appellee)

Korea Labor Welfare Corporation

Seoul High Court Decision 2004Nu3542 delivered on January 19, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Average wages, which are the basis for calculating temporary disability compensation benefits under the Industrial Accident Compensation Insurance Act, shall be calculated by dividing the total amount of wages paid to the relevant worker during three months before the date of occurrence of an accident causing injury due to an occupational accident or the date of confirmation of occurrence of an occupational disease due to diagnosis by the total number of days during that period (see Articles 41(1) and 4 subparag. 2 of the Industrial Accident Compensation Insurance Act, Article 19(1) main text of the Labor Standards Act,

Meanwhile, in calculating insurance benefits under the Industrial Accident Compensation Insurance Act, if the ordinary wage paid to an employee in the same occupational category as the business to which the employee belongs is changed by more than 5%, the average wage shall be increased or decreased by the fluctuation rate (see Article 38(3) of the Industrial Accident Compensation Insurance Act and Article 25(1) and [Attachment 1] of the Enforcement Decree of the same Act). If an employee receives insurance benefits after a long period of time has elapsed from the date of accident or diagnosis or after the date of diagnosis, the increase or decrease system of average wage shall be a system prepared to correct unreasonable cases where it is difficult to reflect the substantial value of the insurance benefits in determining the amount of insurance benefits, by calculating the average wage as of the date of accident or diagnosis on which the reason for calculating the average wage occurred, on the basis of the date of which

In this case, the average wage, which serves as the basis for calculating temporary disability compensation benefits to be paid to the plaintiffs, shall be calculated by dividing the total amount of wages paid for three months prior to the date of occupational accident by the total number of days during which the ground for calculation occurred. If the ordinary wage of workers engaged in the same occupation as the business to which the plaintiffs belong has increased by 6.33% through 14.57% pursuant to the collective agreement which agreed to the increase of wages, the purport of the average wage system that reflects the level of ordinary living wage; the purport of the industrial accident compensation insurance system and the increase or decrease of average wage to enable the injured workers to pay compensation to the same extent; the purpose of the industrial accident compensation insurance system and the increase or decrease of average wage to which the injured workers would have been able to receive compensation to be close; and the Korea Scatt Co., Ltd., Ltd., which is an insurance purchaser, has intentionally increased or decreased the amount of wage by the total wage premium rate for each year, regardless of the total wage premium rate paid by the plaintiffs.

In the same purport, the court below was just to revoke the Defendant’s non-approval of the application for increase of average wage of this case as unlawful, and there was no error in the misapprehension of legal principles as to increase or decrease of average wage under the Industrial Accident Compensation Insurance Act.

Supreme Court Decision 80Nu411 Decided December 9, 1980 cited in the ground of appeal by the defendant is against the retired worker, and it cannot be a proper precedent of this case, with the purport of the case different from that of the case.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)