Samsung Card Co., Ltd. (Law Firm Barun, Attorneys Lee Dong-sub, Counsel for defendant-appellant)

Korea Labor Welfare Corporation

December 22, 2010

Seoul Administrative Court Decision 2010Guhap9853 decided July 16, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The decision of the first instance court shall be revoked. The defendant shall revoke the imposition of each employment insurance premium and each industrial accident compensation insurance fee as stated in the separate sheet against the plaintiff on December 26, 2008 and December 2, 2009.

1. cite the judgment of the first instance;

The reason why this Court is used in relation to this case is as follows: (a) the reasoning of the judgment of the court of first instance is as follows 2.3; and (b) the reasoning of the judgment of the court of first instance is as follows; and (c) the reasoning of the judgment of the court of first instance is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

1. Details of the disposition;

A. The Defendant calculated the final premium on December 26, 2008 under the premise that the debt collectors belonging to the Plaintiff constitute workers, and imposed the amount of KRW 1,377,848,770 for employment insurance premium in 2005 (the amount of KRW 708,607,940 for unemployment benefits + the amount of KRW 118,101,139,510 for vocational ability development insurance premium + the amount of KRW 551,139,510 for vocational ability development insurance premium + the amount of KRW 218,81,110 for industrial accident compensation insurance premium in 206 and the amount of KRW 796,129,730 for industrial accident compensation insurance premium in 206 (the amount of KRW 409,438,150 for unemployment benefits + the amount of KRW 386,691,580 for industrial accident compensation insurance premium in 14,59,407,208).

B. On February 27, 2009, the Plaintiff filed an administrative appeal against the imposition of the employment insurance premium and industrial accident compensation insurance premium in 2005, but the administrative appeals commission under the Prime Minister dismissed on December 1, 2009.

[Reasons for Recognition] Gap evidence 1-1 to 3, the purport of the whole pleadings

3. Additional determination

A. The plaintiff's assertion

1) Although the employment insurance and industrial accident compensation insurance are compulsory insurance, they also have the nature of bilateral contract as a bilateral contract. Since the right to receive the employment insurance and industrial accident compensation insurance benefits, which occurred three years prior to the date of the instant disposition, has already expired, the defendant was exempted from the obligation to pay insurance proceeds corresponding thereto. Therefore, the defendant is not obliged to take over risks to the insurance accidents that occurred three years prior to the date of the instant disposition. Since the defendant is unable to perform the obligation to accept risks and to pay insurance benefits, the defendant is also not obligated to pay insurance premiums corresponding thereto. Article 648 of the Commercial Act provides that the return of insurance premiums may be claimed where all or part of the insurance contract is null and void, and Article 644 of the Commercial Act provides that the insurance contract for the insurance accidents which have already become final and conclusive should be null and void on the premise that the insurance accident is likely to occur, and that the insurance contract should be null and void. Of the instant disposition, the part of the employment insurance and industrial accident compensation insurance premiums imposed retroactively by the defendant

2) Among the instant dispositions, the unemployment benefits items included the portion of the employment insurance premium to be borne by the business owner and the employment insurance premium to be borne by the employees. According to Article 16(1) of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (wholly amended by Act No. 9896, Dec. 30, 2009; hereinafter “Insurance Premium Collection Act”), Article 13(2) provides that a business owner may withhold the amount of the employment insurance premium to be borne by a worker who is an employment insured pursuant to Article 13(2). However, the Plaintiff did not withhold the amount of the employment insurance premium to be borne by the employees from the amount of the employment insurance premium to be withheld. Article 16(1) of the Insurance Premium Collection Act grants only the authority to withhold the amount of the employment insurance premium to be

The extinctive prescription of the right to collect insurance premiums is three years. The period of extinctive prescription is based on the monthly wage paid by an employee. Of the instant dispositions, the employment insurance premium paid by an employee out of the insurance premium in 2005 was based on December 26, 2008, which is the date of disposal, and the employment insurance premium paid by an employee out of the insurance premium in 2006 was calculated based on December 2, 2009, which is the date of disposal.

3) According to Article 22-3 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (wholly amended by Act No. 8117, Dec. 28, 2006; enforced on March 29, 2007), where a party to an employment insurance or industrial accident compensation insurance purchases an insurance policy after the lapse of one year from the date of establishment of the insurance relationship under Article 7 of the same Act, he/she shall be exempted from the insurance premium, additional dues, and arrears for the previous insurance year except for the insurance year and the immediately previous insurance year. The debt collector’s bereaved family member filed a lawsuit against the defendant for survivors’ benefits and funeral expenses against the defendant, and the Supreme Court declared on May 15, 2008 that the non-party is a worker belonging to the plaintiff, and accordingly, the collection source belonging to the plaintiff was confirmed to be subject to the insurance obligation, and accordingly, the first establishment of the insurance relationship was reported for the collection source belonging to the plaintiff.

B. Determination

(1) Taking out employment insurance and industrial accident compensation insurance and bearing responsibility

A) According to Article 8 of the Employment Insurance Act (wholly amended by Act No. 8429 of May 11, 2007) and Article 7 of the Employment Insurance Act (wholly amended by Act No. 8429 of May 11, 2007; hereinafter “former Employment Insurance Act”), and Article 7 of the Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373 of April 11, 2007) and Article 5 of the Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373 of April 11, 2007; hereinafter “former Industrial Accident Compensation Insurance Act”) respectively, the Employment Insurance Act and the Industrial Accident Compensation Insurance Act apply to all businesses or workplaces that employ workers.

According to Article 5(1) of the Insurance Premium Collection Act, an employer and an employee of a business subject to the Employment Insurance Act naturally become an employment insurance policyholder under the Employment Insurance Act. According to Article 5(3) of the same Act, an employer of a business subject to the Industrial Accident Compensation Insurance Act naturally becomes an industrial accident compensation insurance policyholder under the Industrial Accident Compensation Insurance Act. According to Article 7(1) of the Insurance Premium Collection Act, in the case of a business subject to the employment insurance pursuant to Article 5(1), the date the business commences, and in the case of a business subject to the industrial accident compensation insurance pursuant to Article 5(3)2, the insurance relationship is established on the date the business commences.

B) Liability insurance under the Commercial Act is a bilateral contract in which a policyholder’s obligation to pay premiums and the insurer’s obligation to pay insurance proceeds subject to the occurrence of an insured incident are conflicting with each other, and insurance premiums and insurance proceeds are in a quid pro quo relationship. The establishment of liability insurance contracts is not established if there is no agreement between the parties to the contract, but the insurer commences from the time when the initial insurance premium is paid, unless otherwise agreed between the parties to the contract (Article 656 of the Commercial Act). On the contrary, the insurance relationship with respect to employment insurance and industrial accident compensation insurance, which has the characteristics of social insurance and liability insurance, is naturally established upon the commencement of a business subject to compulsory application, and thus, the insurer is liable. The insured is liable upon the commencement of the insurance relationship, and is not liable only when the insurer is aware of the establishment of the insurance relationship and actually paid the insurance premium.

In full view of the statement in Gap evidence No. 1-3 and the purport of the entire argument, the plaintiff is established on March 24, 1983, and the defendant is established on July 10, 1995 with respect to employment insurance, the date of establishment of the insurance relationship shall be credit card and installment financing business, and the date of establishment of the insurance relationship in relation to industrial accident compensation insurance on July 14, 1998 shall be the credit card and installment financing business, and the type of business on July 14, 1998 shall be recognized as having received a report on establishment of each insurance relationship with the general financial business.

Therefore, the Defendant became liable for the payment of insurance money from the date of establishment of each insurance relationship. The Nonparty’s family benefits and funeral expenses lawsuit filed against the Defendant by the Plaintiff’s deceased Nonparty’s surviving family members against the Defendant, which became final and conclusive, and the Nonparty’s labor provision contract concluded between the Plaintiff and the claims collector was not changed into a labor contract, or the labor contract was not newly concluded by this judgment. Even before the judgment of the Plaintiff and the Plaintiff, the Defendant was liable for insurance due to the establishment of an insurance relationship under the Employment Insurance Act and the Industrial Accident Compensation Insurance Act, which is irrelevant to whether the claims collector belonging to the Plaintiff recognized whether the claims collector were a worker

The Defendant assumed risk from the date of establishment of the insurance relationship. The Defendant’s claim for insurance benefits terminated by prescription and thus, the Defendant’s obligation pursuant to the insurance relationship is not impossible to perform. In addition, Article 648 of the Commercial Act is not applicable because all or part of the insurance contract is not null and void, and it cannot be deemed that the insurance relationship has been established following the final and conclusive judgment that the occurrence of an insurance accident

2) Obligation to pay premiums and extinctive prescription

A) Obligation to pay premiums;

(1) According to Article 13(1) of the Insurance Premium Collection Act, the Corporation shall collect insurance premiums from policyholders, “1. Employment security and vocational skills development programs and unemployment benefits insurance premiums (hereinafter “employment insurance premiums”) and 2. Industrial accident insurance premiums (hereinafter “industrial accident insurance premiums”). According to Article 13(2) of the same Act, the total amount of insurance premiums to be paid by workers who are employment insurance policyholders shall be calculated by multiplying the total amount of their remuneration by 1/2 of the unemployment benefits premium rates under Article 14(1). According to Article 14(4) of the same Act, the amount of insurance premiums to be borne by employers under Article 14(1) of the same Act shall be calculated by multiplying the total amount of remuneration to workers who are insured workers, and the amount of insurance premiums to be paid by employers shall be calculated by multiplying the total amount of remuneration to be paid by 10/2 of the unemployment benefits premium rates under Article 14(1) of the same Act. According to Article 14(1) of the same Act, the amount of insurance premiums to be paid by 10/4.

According to the main sentence of Article 17(1) of the Insurance Premium Collection Act, every insurance year (where an insurance relationship has been established during the insurance year, the period from the date of establishment thereof to the end of the insurance year), a business owner shall report and pay to the Corporation an amount calculated by multiplying the presumed total amount of wages to be paid to workers during the insurance year by the employment insurance premium rate and industrial accident insurance premium rate, respectively, by March 31 of the insurance year as prescribed by the Presidential Decree. According to Article 17(2) of the same Act, where a business owner fails to report under paragraph (1) or his/her report is different from the fact, the Corporation shall investigate the fact and calculate the estimated premium and collect the shortage thereof if any. According to the main sentence of Article 19(1) of the Insurance Premium Collection Act, the business owner shall investigate the difference between the total amount of the estimated premium and the total amount of the estimated premium paid (including the amount determined to be terminated if the insurance relationship has been terminated during the insurance year) to the Corporation before the end of each insurance year, and the Corporation shall report the amount in excess premium to the Corporation within three days after the insurance year.

(2) In full view of the aforementioned relevant laws and regulations, rather than compelling an employer to withhold the amount equivalent to the employment insurance premium to be paid by the employee, the Act on Collection of Insurance Premiums grants the employer the authority to collect through withholding rather than compelling the amount equivalent to the employment insurance premium to be paid by the employee. However, considering the purpose of the Employment Insurance Act to protect the employee through prevention of unemployment, promotion of employment, improvement of the vocational ability of workers, etc. and the purpose of promoting financial soundness, the Act on Collection of Insurance Premiums imposes the employer’s duty to report and pay the total amount of the employment insurance premium to the business owner, regardless of

B) Whether the extinctive prescription has expired

(1) According to Article 19 of the Insurance Premium Collection Act, unlike the method of withholding employment insurance premium to be borne by an employee, a business owner shall calculate the final premium by multiplying the total amount of wages (including the amount determined to be paid) paid to the employee employed until the last day of each insurance year (where the insurance relationship is terminated during each insurance year, the day before the termination date) by the employment insurance premium rate. According to Article 43 of the Insurance Premium Collection Act, the extinctive prescription of the final premium under Article 19 shall run from the first day of the following insurance year (the date when the insurance relationship is terminated in the case of a

(2) According to the relevant legal provisions and the aforementioned evidence, the date of disposal of the final premium in 2005 among the instant dispositions is December 26, 2008, and the date of disposal of the final premium in 2006 is December 2, 2009. The initial date of the extinctive prescription period of the final premium in 2005 is January 1, 2006, and the initial date of the extinctive prescription period of the final premium in 2006 is January 1, 2007, and the initial date of the final premium in 2006 was January 1, 2007. Thus, the extinctive prescription has not been completed since 3 years have not elapsed at the time of the instant disposition. This part of the Plaintiff’

3) Whether some of the insurance premiums, etc. are exempted

A) Article 22-3 of the Insurance Premium Collection Act (amended by Act No. 8117, Dec. 28, 2006); Article 22-3 of the Insurance Premium Collection Act (amended by Act No. 8117) intends to exempt a policyholder of an employment insurance under the Employment Insurance Act or an industrial accident compensation insurance under the Industrial Accident Compensation Insurance Act from insurance premiums, surcharges, and arrears for the previous insurance year excluding the insurance year to which the date of the insurance belongs and the immediately previous insurance year; and Article 5 of the Addenda of the Insurance Premium Collection Act (amended by Act No. 8116, Dec. 28, 20

B) As examined earlier, the Plaintiff reported on July 10, 1995 that the insurance relationship with the credit card company and installment financing company engaged in the type of business on July 1, 1995 was established, and on July 10, 1995 in relation to the industrial accident insurance, the insurance relationship with the type of business as a general financial business on July 1, 1998 was established and reported on July 14, 1998.

C) The Plaintiff is an insured who already reported the establishment of an insurance relationship under the Employment Insurance Act and the Industrial Accident Compensation Insurance Act before the Insurance Premium Collection Act was partially amended by Act No. 8117, Dec. 28, 2006; and it is not a report on the establishment of an insurance relationship only on May 15, 2008, which was sentenced by the Supreme Court to the effect that the Plaintiff is an employee of the Plaintiff. Thus, the Plaintiff is not an insured who reported the establishment of an insurance relationship after the enforcement of the amended Insurance Premium Collection Act to which this provision applies. The Plaintiff’s assertion on this part is without merit.

4. Conclusion

The plaintiff's appeal is dismissed.

[Attachment]

Judges Kim Jong-dae (Presiding Judge)