B&S Co., Ltd. (Law Firm Pulp, Attorneys Yoon-young et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

November 5, 2014

Seoul Administrative Court Decision 2013Guhap15804 decided March 7, 2014

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On May 21, 2013, the Defendant revoked the non-approval disposition for the change of the industrial accident insurance-related workplace to the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. The Plaintiff is a person who enters into a building management contract with the Home Plusco Co., Ltd. (hereinafter referred to as the “ Home Plusco”), and performs the duties of managing, maintaining, and repairing buildings. The Plaintiff requested the Home Plusco (hereinafter referred to as the “○○”) to clean the outer wall of the Home Plusco (hereinafter referred to as the “instant building”), and Nonparty 2 sent Nonparty 1.

B. On May 6, 201, Nonparty 1 felled on the five floor while cleaning the outer wall of the instant building on May 6, 201 (hereinafter “instant accident”).

C. The Defendant deemed the Plaintiff as the Nonparty 1’s business owner and handled the industrial accident compensation duties for the instant accident. On May 1, 2013, the Plaintiff filed an application with the Plaintiff that “The workplace subject to industrial accident insurance is Nonparty 2, and thus, the Plaintiff changed the workplace subject to industrial accident insurance from the Plaintiff to Nonparty 2” (hereinafter “instant application”). However, on May 21, 2013, the Defendant cannot be deemed as having delegated or entrusted the Plaintiff with part of the Plaintiff’s work scope, and the instant accident occurred while the Plaintiff’s employee was under cleaning work by designating the scope of work, and thus, Nonparty 1’s business owner refused to change the industrial accident insurance-related workplace, such as the instant application, and notified the Plaintiff thereof (hereinafter “instant notification”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 3 and 4, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. Defendant’s assertion

The notification of this case is merely a mere guidance that does not affect the rights and obligations of the plaintiff, and does not constitute an administrative disposition that is subject to appeal litigation.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

If an administrative agency’s rejection of a citizen’s petition constitutes an administrative disposition that is subject to an appeal litigation, the administrative agency’s right to request the action of the administrative agency must be the citizen. If an administrative agency refuses to accept a citizen’s petition without any ground for such right to request, the rejection does not affect the applicant’s right or legal interest, and it cannot be deemed an administrative disposition that is subject to an appeal litigation (see Supreme Court Decision 2004Du1626, Apr. 15, 2005, etc.).

In the instant case, the Plaintiff received a request from the Defendant for the seal from the Defendant on June 20, 201 in the course of the disposition of the medical care approval with respect to Nonparty 1 related to the instant accident, and rejected to affix a seal. After which, on July 20, 201, the Defendant sent the notice to Nonparty 1 by designating the workplace to which he belongs as the Plaintiff on July 20, 201, and then sent it to the Plaintiff on July 22, 201, and around that time, the Plaintiff was not dissatisfied with the receipt of the said notice, and around May 1, 2013, the Plaintiff did not protest against the Plaintiff. The Plaintiff filed the instant application to the effect that “the business owner of Nonparty 1 was Nonparty 2, and thus, changed the workplace subject to industrial accident insurance from the Plaintiff to Nonparty 2, and thus, requested the revocation of the instant notification of the Defendant rejecting the instant application from the Plaintiff on June 12, 2013.

In full view of these facts and the legal principles as seen earlier, it is reasonable to view that the instant notice does not constitute a rejection disposition subject to an appeal litigation, in view of the following circumstances. The Defendant’s main defense pointing this out is with merit.

According to Article 7 of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Insurance Act”), Article 5(3) and Article 7 subparag. 2 of the Act on the Collection of Insurance Premiums, etc. for Industrial Accident Insurance and Industrial Accident Compensation Insurance (hereinafter “Insurance Premium Collection Act”), the Insurance Premium Collection Act shall govern the establishment and termination of an insurance relationship under the Industrial Accident Compensation Insurance Act, and the owner of a business subject to the Industrial Accident Compensation Insurance Act, as a matter of course, becomes an industrial accident compensation insurance policyholder under the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Insurance”). Accordingly, in the event of a business subject to the industrial accident insurance, the business owner becomes an industrial accident insurance policyholder under the proviso to Article 6(3) of the Industrial Accident Compensation Insurance Act (where the business owner becomes an industrial accident insurance policyholder under the proviso to Article 6 of the Industrial Accident Compensation Insurance Act, the date it comes to fall under the industrial accident insurance, and thus, the insurance relationship is established only if the establishment and termination of an industrial accident insurance relationship meet the requirements prescribed therein, and the insurance premium collection Act does not stipulate any change in the insurance relationship with the business owner’s name.

In light of these various circumstances, it cannot be deemed that the above-mentioned statutes have no provision recognizing the right to apply for the change of the insurance relationship to the business owner, and that such right to apply for the change of the insurance relationship is recognized by the interpretation of the relevant statutes.

On the other hand, a business owner who is an industrial accident insurance policyholder may file an administrative suit against the disposition of approval for medical care for the affected person (see, e.g., Supreme Court Decision 85Nu127, Oct. 28, 1986). Even if the disposition of approval for medical care became final and conclusive after the lapse of the objection period, the business owner may assert illegality of the disposition of imposition of insurance premiums, etc. on the ground that the affected person is not his/her employee at the time of the accident (see, e.g., Supreme Court Decision 2006Du20808, Jul. 24, 2008). In this case, even if the medical care approval disposition for the non-party 1 becomes final and conclusive after the lapse of the objection period, the non-party 1 may file an appeal against the above disposition of approval for medical care as an employee belonging to the plaintiff, except in extenuating circumstances. Therefore, it is difficult to find out that the right to claim compensation for the rights of the parties.

D. Sub-committee

Thus, even if the defendant rejected the plaintiff's application of this case, it does not affect the plaintiff's rights or legal interests. Thus, the notification of this case does not constitute a rejection disposition that is subject to appeal litigation. The lawsuit of this case seeking its revocation is unlawful.

3. Conclusion

The lawsuit of this case shall be dismissed in an unlawful manner. The judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed.

[Attachment Omission of Related Acts]

Justices Choi Jong-chul (Presiding Justice) Kim Tae-ho Kim Gyeong-hwan