[1] Details of the duty to protect an employee, and whether only the employer who is a direct party to the employment contract bears the duty to protect the employee, and whether the employer is liable for nonperformance due to such breach (negative)

[2] The case holding that the company Gap is liable for damages caused by non-performance in competition with the liability for damages caused by non-performance since Eul company was liable for damages since it failed to perform its duty of safety consideration caused by the labor contract, and Byung company was liable for the damages caused by non-performance of its duty of safety consideration as it was the employer who was liable for the damages caused by non-performance of its duty of safety consideration due to the failure to perform its duty of safety consideration due to the failure to perform its duty of safety consideration, while it was engaged in dispatching Eul company Eul

[1] In a case where the parties in a labor relationship are practically related to an employer and an employee, the employer bears the duty to maintain a physical environment and take necessary measures so that the employee does not harm life, body, and health in the course of providing his/her labor. Such duty to protect is an incidental duty recognized by the good faith principle in light of the substantive nature of the employment contract, and the actual employer who violated the duty is liable for nonperformance and tort liability of the employee. Among them, the nonperformance liability is recognized where there exists a contractual relationship or equivalent legal relationship that can recognize the duty to protect as above between the parties. In light of the fact that the said duty to protect is an incidental duty to the direction and supervision of the employer, such duty does not necessarily exist between the parties in a direct employment contract, and where an employee is recognized as a reorganization of the legal relationship that controls and manages the employee’s labor, i.e., the legal relationship that the employee works for the labor, even if

[2] In a case where Gap company suffered injury because safety devices in the machinery were not operated properly while dispatching Eul company to Eul company which entered into a direct employment contract with Eul company Eul company, the case holding that Byung company is liable for damages caused by non-performance of liability in concurrence with Eul company's tort, since Eul company was able to control and manage Eul's labor by the employment contract between Eul company and Eul company and the legal relationship where the worker dispatch contract between Eul company and Byung company was entered into (i) and the employment contract between Eul company, and the worker dispatch contract between Byung company, and thus these two relations are deemed as actual employers and employees who are mediating the employment contract and the worker dispatch contract, and since Eul company suffered damages due to non-performance of safety care obligation by failing to verify the breakdown of the machinery and failing to conduct specific safety education (However, the ratio of liability to the employee's negligence is limited to 70%).

[1] Articles 390, 655, and 750 of the Civil Act / [2] Articles 390, 655, and 750 of the Civil Act; Article 35(2) of the Protection of Dispatched Workers Act; Article 5(1) of the Industrial Safety and Health Act

[1] Supreme Court Decision 96Da53086 delivered on April 25, 1997 (Gong1997Sang, 1583), Supreme Court Decision 2000Da7301 delivered on November 26, 2002 (Gong2003Sang, 163)

Plaintiff (Attorney Yoon Jong-dae, Counsel for the plaintiff-appellant)

Peace Industry Ltd.

New Co., Ltd. (Attorney Kim Jae-chul, Counsel for the defendant-appellant)

Daegu District Court Decision 2009Kadan1723 Decided November 9, 2010

June 15, 2011

1. The judgment of the court of first instance is modified as follows.

A. The Defendants shall pay to each Plaintiff 73,151,081 won with 5% interest per annum from November 15, 2005 to June 29, 201, and 20% interest per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendants pay to each plaintiff 102,601,740 won with 5% interest per annum from November 15, 2005 to the rendering of the first instance judgment, and 20% interest per annum from the next day to the full payment day.

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part against the plaintiff as to the order to pay the following amount shall be revoked. The defendant Peace Industry Co., Ltd. shall jointly and severally pay to the plaintiff 73,734,646 won and 5% per annum from November 15, 2005 to November 9, 2010, and 20% per annum from the next day to the date of full payment.

B. Defendant New Co., Ltd.

The part against the above defendant among the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation part is dismissed.

1. Facts of recognition;

A. Defendant Peace Industry Co., Ltd. (hereinafter “Defendant Peace Industry”) is a company that manufactures and sells parts for automobiles and equipment facilities with a regular number of 735 persons, and Defendant New Co., Ltd. (hereinafter “Defendant New Co., Ltd.”) was established for temporary work agency business, etc. and its establishment was terminated on March 1, 2006. Defendant New Co., Ltd. (hereinafter “Defendant New Co., Ltd.”) reported the name of the place of business to the Korea Workers’ Compensation and Welfare Service as “NBB-PP and Non-Korean Workers’ Dispatch,” and purchased an industrial accident insurance by reporting the name of the place of business to “Korea Workers’ Compensation and Welfare Service,” and then dispatched the Plaintiff to the Defendant Peace Industry on November 9, 2005 (the Defendant also recognized the fact that the Plaintiff was a temporary worker through the first instance trial reply, etc.).

B. The Plaintiff, as a means of transportation provided by the Defendant peace industry, went to work at the workplace of the Defendant peace industry under the direction and supervision of the Defendant peace industry. On November 15, 2005, at the workplace of the Defendant peace industry located in Daegu ( Address omitted) around 03:50 on November 15, 2005, the Plaintiff: (a) discovered that there were foreign substances in the lower metal type; (b) tried to remove these substances by putting them in hand into the workplace of the Defendant peace industry; and (c) discovered that there were foreign substances in the lower metal type; and (d) tried to remove these substances by putting them in the schill type; and (d) incurred by the Plaintiff’s schill and kacking the right part of the instant accident, such as schilling the right part of the front part of the road, schilling the front part of the road; and (d) sustained by the Plaintiff’s schill and kick trees, etc., with the right part of the accident.

C. The above shooting machine was installed in a machine that produces rubber by melting rubber more than 200 cc, which was equipped with safety devices to reduce the operation in the shooting machine, but was not operated due to the breakdown at the time of the accident. The Defendants did not check the breakdown of the safety devices at time, and did not provide the Plaintiff, a new member, with particular safety education on the method of removing foreign substances during the shooting.

[Ground of recognition] The fact-finding without dispute, Gap evidence 1, 6 through 10, Eul evidence 1 through 5 (including each number), the testimony of the non-party witness of the first instance court, the testimony of the non-party witness of the first instance court, the vice governor of the Daegu North Korean Labor Welfare Corporation of the first instance court, the fact-finding to the head of the Daegu Regional Labor Office of the Daegu Regional Labor Welfare Agency of the first instance court, the result of the fact-finding to the head of the Daegu Regional Labor Welfare Corporation

2. Occurrence of and limitation on liability for damages;

A. The liability to compensate for the expenses incurred by Defendant New York

According to the above facts, Defendant New Co., Ltd., who entered into a direct employment contract with the Plaintiff, is liable to compensate the Plaintiff for the damages incurred by the Plaintiff due to the instant accident, even though he/she failed to perform such safety care duty and failed to perform such duty, even though he/she is liable to compensate the Plaintiff for the damages incurred by the Plaintiff due to the instant accident, since he/she is liable to compensate the Plaintiff for the damages caused by the instant accident, inasmuch as the Plaintiff is liable to compensate the Plaintiff for the damages due to the instant accident, by failing to perform such safety care duty, in light of the risk of the duties performed by the new worker.

B. Liability for damages of Defendant Peace Industry

(1) The parties' assertion

The plaintiff asserts that the defendant peace industry is liable for damages due to nonperformance or tort, as well as the duty of safety consideration as the actual leader and supervisor of the plaintiff, and as the user company under Article 35 (2) of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter the "Act on the Protection, etc. of Temporary Agency Workers"), the defendant peace industry asserts that the defendant peace industry is not liable for damages because there is no contractual relationship or any equivalent legal relationship between the defendant peace industry and the defendant peace industry.

(2) Determination

In cases where the parties in a labor relationship are practically related to an employer and an employee, the employer bears the duty to maintain a physical environment and devise necessary measures so that an employee does not harm life, body, and health in the course of providing labor. Such duty of protection is an incidental duty recognized under the good faith principle in light of the substantive characteristics of an employment contract, and the actual employer who has violated such duty is liable for nonperformance and tort liability against the employee (see, e.g., Supreme Court Decisions 96Da53086, Apr. 25, 1997; 2000Da7301, Nov. 26, 2002).

Among them, default liability is recognized when there exists a contractual relationship or other equivalent legal relationship that can recognize the above duty of protection between the parties. In light of the fact that the above duty of protection is incidental to the right of direction and supervision of the employer, such duty of protection does not necessarily exist between the parties to the direct employment contract. In other words, where an employee is acknowledged as a reorganization of the legal relationship that controls and manages the employee’s labor under the direction and supervision of the employer, it can be recognized even if there is no direct contractual relationship between the parties.

In this case, considering the following facts: (a) the Plaintiff’s employment in the Defendant New Correspondencen, and then dispatched to the Defendant peace industry through a worker dispatch contract between the Defendants, and then dispatched to the Defendant under the direction and supervision of the Defendant peace industry at the workplace; and (b) the Plaintiff and the Defendant suffered the instant accident due to the broken-out of safety devices; (c) the contractual relationship between the Plaintiff and the Defendant, the form of labor provision, and the circumstances leading up to the accident, etc. revealed in the above recognition; (d) although there is no direct employment contract between the Plaintiff, the Defendant peace industry is able to control and manage the Plaintiff’s labor by the employment contract between the Plaintiff and the Defendant, and the legal relationship between the Defendants and the worker dispatch contract between the Plaintiff and the Defendants, it is reasonable to view that these relations are the actual employer and the employee relationship between the two parties, and thus, the Defendant peace industry has the duty of safety consideration to the Plaintiff, an employee, as an employer (the duty of safety consideration to the Plaintiff’s worker dispatch contract may be deemed to overlap with the Defendant peace industry).

In addition, the facts that Defendant Peace Industry did not properly confirm the breakdown of the instant shooting machine and caused the Plaintiff to work, and that the Plaintiff, a new employee, did not conduct particular safety education on the method of removing foreign substances during the shooting. According to the above recognized facts, the Defendant Peace Industry caused damages to the Plaintiff by failing to perform its duty of safety consideration as an employer. Thus, the Defendant Peace Industry should be held liable for damages due to nonperformance (Article 35(2) of the Act on the Protection of Temporary Agency Workers and Article 5(1) of the Industrial Safety and Health Act).

C. Determination as to the Defendants’ assertion on the expiration of extinctive prescription

The defendants asserted that the plaintiff's damage claim had already expired three years after the date of the occurrence of the accident in this case, but the plaintiff's damage claim had already been extinguished due to the statute of limitations. However, as seen earlier, it is acknowledged that the defendant is liable for the non-performance of obligation due to the breach of safety consideration to the defendants, and the employment contract of the company applies five years commercial extinctive prescription (see Supreme Court Decision 97Da9260 delivered on August 26, 1997, etc.) as auxiliary commercial activities (see Supreme Court Decision 97Da9260 delivered on November 15, 2005, the date of the accident in this case, and the plaintiff filed the lawsuit in this case on January 9, 2009, which was five years after the lapse of five years from the date of the occurrence of the accident in this case. Thus, the defendants' objection to the extinction of prescription is without merit ( long as the plaintiff's damage claim due to the tort

D. Limitation on liability

Meanwhile, the Plaintiff also confirmed whether the safety device is properly operated when removing foreign substances in the above shooting machine, suspended the shooting machine by dividing the emergency position if the safety device is broken out, and notified the site manager in the workplace of the Defendant Peace Industry and neglected to ensure safety by removing foreign substances. Thus, it is reasonable to consider the amount of damages to be compensated by the Defendants in calculating the amount of damages to be compensated by the Defendants, but it is reasonable to view that the ratio of negligence exceeds 30%.

Therefore, the liability of the defendants is limited to 70%.

3. Scope of liability for damages

(a) Actual income:

The reasoning for this Court’s explanation is as follows: (a) it is identical to the entry of “actual income” in the part of “actual income” as stated between 5, 12, 7, and 7, the first instance court’s text. Therefore, it is acceptable to accept it as it is in accordance with Article 420

(b) Future treatment costs;

The Plaintiff shall undergo anti-sculatory therapy on the anti-sculatory reflectors, and the cost is KRW 40,080,000, and there is no evidence to acknowledge that the cost was spent prior to the date of closing of argument in the trial. Thus, on June 16, 201, the day following the date of closing of argument in the trial, the Plaintiff shall be deemed to have received and disbursed the above future treatment on June 16, 201 and shall be 31,334,544 won [40,00 won + 0.7818 [1/1 + (05 ± 12 x 67] when calculated at the present price at the time of the instant accident at the time of the instant accident.

[Reasons for Recognition] The result of the first instance court's commission of physical examination to the head of the Gyeongbuk University Hospital (in addition to sex), the purport of the entire pleadings

C. Limitation on liability

(1) Liability ratio of the Defendants: 70%

(2) Calculation

(A) lost earnings 84,694,430 won x 0.7 = 59,286,101 won

(B) future treatment costs of KRW 31,334,544 x 0.7 = 21,934,180

D. Determination as to the Defendants’ assertion of mutual aid

(1) The fact that the Plaintiff received KRW 18,069,200 for lump-sum disability compensation payment from the Korea Labor Welfare Corporation due to the instant accident does not conflict between the parties, and thus, is deducted from the damages payable by

(2) The Defendants asserted that the Plaintiff’s temporary disability compensation benefits should also be deducted from KRW 16,956,350. However, the Plaintiff did not separately claim for lost income damages during the period of suspension of medical care. Therefore, the above assertion is without merit.

(e) Calculation of property losses;

63,151,081 = Gross income of 59,286,101 - Lump-sum disability compensation 18,069,200 + future medical expenses of 21,934,180 won

(f) consolation money;

The Plaintiff’s age, the circumstances leading up to the instant accident, the degree of the Plaintiff’s injury and the disability behind the instant accident, and other circumstances shown in the pleadings of the instant case shall be determined 10,000,000 won in consideration of various circumstances.

G. Sub-determination

Therefore, the Defendants are obligated to pay to each of the Plaintiff damages amounting to KRW 73,151,081 (property damages amounting to KRW 63,151,081 + solatium amounting to KRW 10,000,000), which is the date of the instant accident, to the extent that the Defendants dispute over the existence and scope of the Defendants’ obligations from November 15, 2005 to June 29, 201, which is the date of the imposition of a reasonable judgment, 5% per annum as stipulated in the Civil Act, and 20% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without merit. Among the judgment of the court of first instance, the part against the plaintiff regarding the defendant's peace industry and the part against the defendant who ordered payment exceeding the above recognition limit is unfair in conclusion. Thus, the plaintiff's appeal against the defendant's peace industry and the appeal against the defendant's new friendship shall be partially accepted, and the judgment of first instance shall be modified as per Disposition 1. It is so decided as per Disposition.

Judges Hong-Myeon (Presiding Judge)