Plaintiff (Law Firm U.S. Law, Attorney Sung-sung et al., Counsel for plaintiff-appellant)

Korea Mine Reclamation Corporation (Attorney Kim Jong-tae, Counsel for the plaintiff-appellant)

August 17, 2017

1. The main part of the lawsuit in this case shall be dismissed.

2. The plaintiff's conjunctive claim is dismissed.

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

The primary purport of the claim is to revoke the Defendant’s disposition on December 28, 2016 to pay the land for accident compensation benefits to the Plaintiff.

Preliminary claim: The defendant shall pay to the plaintiff 172,468,150 won with 5% interest per annum from September 13, 2013 to the service date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Case history

A. The Plaintiff’s father Nonparty 2 (the deceased et al., December 10, 194; hereinafter “the deceased”) is a person who had worked in a mining center in the private mining center where the Plaintiff mobilized a corporation from April 1, 197 to March 30, 1981.

B. The coal industry rationalization project team is a corporation established pursuant to Article 31 of the former Coal Industry Act (amended by Act No. 7552 of May 31, 2005, hereinafter the same), which was dissolved while carrying out the coal mine mine mine mine mine mine mine mine mine closure countermeasure project, such as the payment of mine closure countermeasure expenses, and the defendant is a corporation established pursuant to Article 31 of the Mining Damage Prevention and Restoration Act (amended by Act No. 7551 of May 31, 2005, and succeeds to all the rights and obligations of the coal industry rationalization project team dissolved pursuant to Article 3(2) of the Addenda of the above Act.

C. As a result of the precise diagnosis of pneumoconiosis in 1996, the Deceased was found to be “mal-type 0/1 (Lior),” and was hospitalized in △△△ Hospital from June 22, 1996, and was transferred to △△△ Hospital on December 29, 2009 during the medical treatment. On September 12, 2010, the Deceased died from the direct death of the △△, the intermediate preemptive event, and the pneumoconiosis. Meanwhile, from June 28, 2010 during the medical treatment, the Deceased was diagnosed at △△△ Hospital at the request of the Korea Workers’ Compensation and Welfare Service for one week from June 28, 2010, and as a result, the Deceased fell under “mal-type 1/1, merger-type pulmonary tuberculosis, non-activity pulmonary tuberculosis, pulmonary lung cancer, etc.,” and was f2’s degree of interference with cardiopulmonary function.

D. Pursuant to Article 39-3 of the former Coal Industry Act and Article 42-2(1) of the former Enforcement Decree of the Coal Industry Act (amended by Presidential Decree No. 19458, Apr. 27, 2006; hereinafter the same), the mobilization of a stock company submitted an application for mine closure reserve to obtain confirmation as to whether a mine is subject to the payment of mine closure countermeasure expenses to the Defendant, and subsequently, the Defendant was selected as a mine subject to mine closure support from the Defendant around that time, and the mining right was extinguished on January 25, 2005.

E. On October 5, 2010, the Plaintiff filed a claim with the Korea Workers’ Compensation and Welfare Service for the payment of survivors’ benefits and funeral expenses, but on February 25, 2011, the Korea Workers’ Compensation and Welfare Service rendered a disposition on the Plaintiff’s compensation and funeral expenses on the ground that “the Deceased’s death based on his/her medical opinion is deemed to have been caused by pneumoconiosis and its merger, but it is not clear whether the beneficiary is the Plaintiff or Nonparty 3, who is a legal wife.” Accordingly, the Plaintiff filed a lawsuit against the Korea Workers’ Compensation and Welfare Service seeking cancellation of the said disposition. On June 8, 2012, the court rendered a judgment revoking the said disposition on the ground that “the Plaintiff becomes a beneficiary of the lump-sum survivors’ compensation and funeral expenses pursuant to Articles 62, 65 and 71 of the Industrial Accident Compensation Insurance Act” (hereinafter “Korea Workers’ Compensation and Welfare Service”) and the Seoul Workers’ Compensation and Welfare Service appealed on April 26, 2013 (hereinafter “Korea Workers’ Compensation and Welfare Service”).

F. On May 30, 2013, the Plaintiff filed a claim with the Korea Workers’ Compensation and Welfare Service for unpaid insurance benefits (Disability Benefits). On July 26, 2013, the Korea Workers’ Compensation and Welfare Service notified the Plaintiff that “The causes for the payment of disability benefits arise at the time of cure of injury or disease, and no cause for the payment of disability benefits arises as at the time of the Deceased’s death.” Accordingly, the Plaintiff filed a lawsuit against the Korea Workers’ Compensation and Welfare Service seeking cancellation of the disposition of disability benefit site wages with this court. On November 12, 2014, the Court rejected the request for the final judgment of the Korea Workers’ Compensation and Welfare Service on June 28, 2010 (Seoul Workers’ Compensation and Welfare Service’ Compensation and Welfare Service’s precise diagnosis conducted 1/1, and 62 diagnosis on the degree of cardiopulmonary disorder and cardiopulmonary disability level 100, and thus, the Plaintiff’s judgment was unlawful as it did not have any further determination of the pneumoconiosis grade as at the time of death grade 20.

G. On March 8, 2016, the Plaintiff filed an application with the Defendant for disaster compensation benefits with the deceased under the former Coal Industry Act, but the Defendant notified the Defendant of the purport to reject the application on December 28, 2016 on the ground that “The pertinent coal mine mine closure preliminary application date (on November 13, 2003) under Article 42(1) of the Enforcement Decree of the Coal Industry Act (amended by March 17, 2004) was not a person who served for at least three months as of the pertinent coal mine closure preliminary application date (amended by November 13, 2003)” (hereinafter “instant notification”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4 through 7, Eul evidence 1 (including provisional number), the purport of the whole pleadings

2. The plaintiff's assertion

A. The primary claim(s)

In the case of mine closure countermeasure expenses under Article 39-3 (1) 1 and 4 of the former Coal Industry Act, it is reasonable to interpret that all workers who had worked in the mine concerned for not less than three months prior to the date of application for confirmation under Article 42-2 (1) of the former Enforcement Decree of the Coal Industry Act shall be subject to the payment of all workers who had worked in the mine concerned for not less than three months prior to the date of application for confirmation under Article 42-2 (1) of the former Enforcement Decree of the Coal Industry Act. As such, as of November 13, 2003, the date of application for the preliminary mine closure of mobilization of a stock company, the deceased who worked in the mining department located in the North Korean Mining Center for four years from April 1, 197 to March 30, 1981, shall be subject to the payment of mine closure countermeasure expenses under Article 39-3 (1) 4 of the former Coal Industry Act. Therefore, the notification of this case should be cancelled by unlawful means.

B. Claim as to the preliminary claim

Even if the defendant's assertion that the lawsuit in this case should be brought against the party suit, as seen earlier, falls under the subject of the payment of mine closure countermeasure expenses under Article 39-3 (1) 4 of the former Coal Industry Act, and as such, the defendant is obligated to pay the plaintiff, who is the beneficiary of bereaved family's benefits and funeral expenses for the deceased, the amount equivalent to the amount of disaster consolation benefits 172,468,150 won (the amount equivalent to the lump-sum survivors' compensation benefits under Article 62 (2) of the Industrial Accident Compensation Insurance Act x average wages 132,667.81 x 1,300 days x 1,300 days x 1,300 days x 1, 2013) and damages for delay or delay from September 13, 2013.

3. Determination as to the legitimacy of the main claim part of the lawsuit of this case

A. Defendant’s defense prior to the merits

The right to claim the payment of disaster compensation benefits under the former Coal Industry Act is a right under public law and a lawsuit seeking such payment is instituted as a party suit under public law. As such, the main claim filed in the form of an appeal suit seeking the cancellation of the instant notification among the instant lawsuits is unlawful.

B. Determination

If the purport of each provision of Article 39-3 (1) 4 and (4) of the former Coal Act and Article 41 (4) 5 of the former Enforcement Decree of the Coal Industry Act are gathered, the right to claim payment of disaster compensation benefits against the defendant is naturally generated if the requirements for payment as provided by the above provision are met, and the amount is determined, and it does not depend on the occurrence or amount of the right to claim payment. Thus, even if the defendant expressed his/her intention to refuse payment for all or part of the disaster compensation benefits, the expression of intention is not an administrative disposition that forms and determines the right to claim payment of disaster compensation benefits, but it is merely an expression of the actual and legal opinion as to the existence and scope of the obligation to pay disaster compensation benefits as a party to the legal relationship under public law. Thus, if the defendant objects to the expression of intent to refuse the payment of disaster compensation benefits indicated by the defendant, not an appeal against the defendant, but a direct party lawsuit under public law should be instituted (see Supreme Court Decision 98Du125989, Jan. 26, 1999).

Therefore, the notification of this case, which the defendant expressed his intention to refuse payment of disaster compensation benefits under Article 39-3 (1) 4 and (4) of the former Coal Industry Act and Article 41 (4) 5 of the former Enforcement Decree of the Coal Industry Act, cannot be deemed a disposition subject to appeal litigation. Thus, the part of the main claim among the lawsuit of this case seeking the cancellation of the notification of this case is illegal, and the defendant's defense prior to the main claim pointing this out is with merit.

4. Judgment on the conjunctive claim

Article 39-3 (1) 4 of the former Coal Industry Act provides for the payment of the amount falling under each of the following subparagraphs (hereinafter “mining right expenses”) to the retired workers and coal mining business operators of the mine concerned who have been registered for extinction of mining right or mining concession right (hereinafter “mining right, etc.”) during the period of application under Article 39-2 (1) 3; subparagraph 1 provides for the amount equivalent to 75 percent of the minimum standard amount of retirement allowances under Article 34 of the Labor Standards Act; the wages within the limit of two months; the average wage under Article 19 of the Labor Standards Act; the amount corresponding to the average wage under subparagraph 2 shall be paid to the coal mining business operators for the relocation and disuse of their mining facilities; the amount as prescribed by the Presidential Decree within the scope of 10,000 won per ton of the annual coal production of the closed mine under Article 39-2 (1); and the payment procedure for the closing mine under subparagraph 3 of the same Article provides for the amount as prescribed by the Presidential Decree within the scope of Article 4 (1) of the former Act:

Meanwhile, under Article 39-3 (1) 4 and (4) of the former Coal Industry Act and Article 41 (4) 5 of the former Enforcement Decree of the Coal Industry Act, disaster compensation benefits paid to workers suffering from occupational accidents in a mine closed as a kind of mine closure countermeasure expenses pursuant to each of the provisions of Article 39-3 (1) 4 and (4) of the former Coal Industry Act and Article 41 (4) 5 of the former Enforcement Decree of the Coal Industry Act are the nature of consolation benefits paid in addition to ordinary accident compensation in social security level for the retired workers who are expected to suffer from special difficulties such as occupational accidents due to the occurrence of the disasters in the mine in question in light of the domestic coal supply and demand situation (see Supreme Court Decision 98Du12598 delivered on January 26, 199).

Examining the language, purport, etc. of the above-mentioned laws and regulations in addition to the nature of disaster compensation benefits and the payment purpose thereof, Article 42(1) of the former Enforcement Decree of the Coal Industry Act does not require all workers who have been employed in the mine in the past for three months or more in the case of mine closure countermeasure expenses under Article 39-3(1)1 and 4 of the former Coal Industry Act, but it is reasonable to interpret that Article 42-2(1) of the former Enforcement Decree of the Coal Industry Act limits only those who have been employed in the mine in the mine in question as of the date of application for confirmation under Article 42-2(1) of the former Enforcement Decree of the Coal Industry Act to be eligible for payment for three months or more as of the date of application for confirmation (see Seoul Administrative Court Decision 2005Guhap1308, Oct. 1

However, from April 1, 197 to March 30, 1981, the deceased worked at the private mining center for the mobilization of a stock company, and is not a person who was in office for not less than three months in the mine concerned as of November 13, 2003 at the date of application for confirmation under Article 42-2(1) of the former Enforcement Decree of the Coal Industry Act, which is the date of application for confirmation under Article 42-2(1) of the former Enforcement Decree of the Coal Industry Act. Therefore, the deceased is not eligible for disaster consolation benefits under Article 42(1) of the former Enforcement Decree of the Coal Industry Act, and the first plaintiff's assertion on a different premise is without merit.

5. Conclusion

Therefore, the part of the lawsuit in this case is unlawful and dismissed, and the conjunctive claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Yu Jin-dong (Presiding Judge)