[1] Legal nature of a lawsuit seeking confirmation of non-existence of obligation to pay employment and industrial accident insurance premiums (=party suit in public law)

[2] The case holding that in a case where Gap, who received new construction of housing, etc. from Eul, prepared and submitted a report on the establishment of employment insurance and industrial accident insurance relationship under the name of Eul, stating the business owner as Gap, to the Korea Labor Welfare Corporation, and Gap paid part of the employment and industrial accident insurance premiums, and the National Health Insurance Corporation urged Gap to pay the remaining insurance premiums, and the National Health Insurance Corporation demanded Gap to recover the insurance premiums already paid to the National Health Insurance Corporation as unjust enrichment, and filed a lawsuit seeking confirmation of non-existence of the insurance premiums guaranteed by the National Health Insurance Corporation, the court below's collegia

[3] Whether a lawsuit seeking confirmation of the absence of liability to pay employment and industrial accident insurance premiums shall be filed with the Korea Workers' Compensation and Welfare Service as the defendant (affirmative), and where the plaintiff has mistakenly designated the defendant in a party suit under the Administrative Litigation Act, the measures

[4] Whether a contractor is liable for the payment of employment and re-employment insurance premiums where a contractor has made a contract to a contractor for all of the construction works (affirmative in principle), and whether a contractor is liable for the payment of employment and re-employment insurance premiums corresponding to the part where a contractor directly made a contract to a contractor for all or part of the construction works by using a worker (affirmative)

[1] According to the provisions of Articles 4, 16-2, 17, 19, and 23 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance, a lawsuit seeking confirmation of the absence of the obligation to pay insurance premiums in the employment insurance and industrial accident insurance that a business owner is automatically insured is a lawsuit claiming legal relations under public law itself.

[2] The case holding that in case where Party A’s lawsuit, which is an administrative litigation, and the related claim as provided by Articles 10(2) and 44(2) of the Administrative Litigation Act, filed a lawsuit seeking confirmation of non-existence of the insurance premium, in which Party A’s lawsuit seeking return of unjust enrichment and the related claim as provided by Articles 10(2) and 44(2) of the Administrative Litigation Act, filed a lawsuit seeking return of unjust enrichment, and thus, the court of Incheon District Court’s collegiate division as the court of original judgment should have transferred the case to the Seoul High Court, which is the competent court, pursuant to Article 34(1) of the Civil Procedure Act and Article 28 subparag. 1 of the Court Organization Act, as an appellate court, since Party A’s lawsuit seeking return of unjust enrichment was filed.

[3] Article 4 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance provides that matters prescribed by this Act concerning insurance business under the Employment Insurance Act and the Industrial Accident Compensation Insurance Act shall be performed by the Korea Workers' Compensation and Welfare entrusted by the Minister of Employment and Labor, but the National Health Insurance Corporation shall collect insurance premiums from the Minister of Employment and Labor. Therefore, the subject to whom the employment and industrial accident compensation insurance belongs, i.e., the other party liable to pay each insurance premium is the Korea Workers' Compensation and Welfare Corporation, and the National Health Insurance Corporation, merely performs the duty to collect each insurance premium, shall file a lawsuit seeking confirmation of non-existence of the obligation to pay employment and industrial accident compensation insurance premium, with the Korea Workers' Compensation and Welfare Corporation as the defendant. In the case of a party suit under the Administrative Litigation Act, if the Plaintiff designated the defendant by mistake, the court may, upon the plaintiff's request, grant the permission for correction of the defendant (Articles 44(1) and 14 of the Administrative Litigation Act)

[4] According to Articles 8 and 9 of the Employment Insurance Act, Articles 6 and 7 of the Industrial Accident Compensation Insurance Act, and Articles 5(1) and (3) and 13(1) of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance, the owner of a business or workplace that employs a worker shall, in principle, become an employment insurance and industrial accident insurance policyholder, and shall be liable for the payment of the employment insurance and industrial accident insurance premiums. In cases where the owner of a newly constructed building has contracted the whole construction work to the contractor without directly performing the construction work, a person who employs the contractor shall, in principle, be liable for the payment of each insurance premium as an owner of a business under the Employment Insurance and Industrial Accident Compensation Insurance Act and the Industrial Accident Compensation Insurance Act relating to the construction work, and where the owner of a building directly or partially directly pays all or part of the construction work by using the worker, the owner

[1] Articles 4, 5(1) and (3), 16-2, 17, 19, and 23 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance; Article 3 subparag. 2 of the Administrative Litigation Act / [2] Articles 4, 5(1) and (3), 16-2, 17, and 19, and 23 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance; Article 741 of the Civil Act; Articles 3 subparag. 2, 10(2), and 44(2) of the Administrative Litigation Act; Article 34(1) of the Civil Procedure Act; Article 28 subparag. 1 of the Court Organization Act / [3] Article 4 of the Act on the Collection of Insurance Premiums, etc. for Industrial Accident Compensation Insurance; Article 3 subparag. 2 and 14 of the Administrative Litigation Act; Article 36(1) of the Industrial Accident Compensation Insurance Act; Article 48(1) of the Civil Procedure Act

[1] Supreme Court Decision 99Du2765 delivered on September 8, 2000 (Gong2000Ha, 2145) / [3] Supreme Court Decision 2006Da23503 Delivered on November 9, 2006

Plaintiff (Attorney Lee Byung-hee, Counsel for plaintiff-appellant)

National Health Insurance Corporation

Incheon District Court Decision 2015Na59177 Decided April 28, 2016

The judgment below is reversed and the case is transferred to Seoul High Court.

1. Case history

(1) On September 13, 2012, the Plaintiff gave a contract to the Nonparty for the construction of a neighborhood living facility and multi-household (hereinafter “instant construction”) to the Nam-gu Incheon Metropolitan City ( Address omitted) for the construction of a new neighborhood living facility and multi-household housing. However, the Nonparty, on December 26, 2012, prepared and submitted to the Korea Workers’ Compensation and Welfare Service a report on the establishment of an employment insurance and industrial accident insurance relationship under the Plaintiff’s name, stating the business owner as the Plaintiff, pursuant to the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter “Employment Premium Collection Act”).

(2) From January 2, 2014 to July 10, 2014, the Plaintiff paid KRW 11 million, which is part of the employment insurance premium and industrial accident insurance premium related to the instant workplace. The Defendant urged the Plaintiff to pay the remaining employment insurance premium of KRW 2,222,70 and industrial accident insurance premium of KRW 5,99,60 by July 10, 2014.

(3) The Plaintiff, even though the business owner of the instant workplace is the Nonparty, who is the contractor of the instant construction project, submitted a false report on the establishment of the insurance relationship under the Plaintiff’s name, and the Korea Workers’ Compensation & Welfare Service did not go through the verification process, and the imposition of the insurance premium based on the forged report is null and void. As such, the Plaintiff filed a lawsuit with the Incheon District Court seeking the return of the insurance premium already paid as unjust enrichment and demanding the Defendant to pay

2. Progress of litigation;

(1) In the first instance court, pursuant to Article 4 of the Employment Insurance Premium Collection Act, the defendant asserts that the employment insurance and industrial accident compensation insurance businesses are businesses entrusted by the Minister of Employment and Labor and conducted by the Korea Workers' Compensation and Welfare. However, since the defendant is merely entrusted with the collection of insurance premiums, etc., the defendant is ultimately entrusted with the collection of insurance premiums, etc., and thus, the lawsuit of this case should

On the other hand, the Incheon District Court rejected the Defendant’s main defense against the standing of the party on the premise that the lawsuit in this case is a civil lawsuit seeking the return of unjust enrichment, and rejected the Defendant’s main defense against the standing of the party. Moreover, the Plaintiff’s claim was dismissed on the ground that there is insufficient evidence to deem that the Plaintiff’s report on the formation of the insurance relationship under the name of the Plaintiff was drafted and submitted without the Plaintiff’s consent.

(2) In the appellate trial, the Plaintiff filed an application for modification of the purport and cause of the claim, which added the claim for nullification of the disposition to the preliminary claim, that “the imposition of employment and re-insurance premium on the instant construction project against the Plaintiff by the Defendant is confirmed to be null and void.”

Accordingly, the Panel Division of the Incheon District Court rejected the Plaintiff’s claim and dismissed the appeal for the same reason as the first instance court, on the ground that “The objective consolidation of the claim is allowed only when it follows the same kind of litigation procedures, and thus cannot be combined with the claim to nullify the invalidity of the disposition subject to the administrative litigation in this case following the civil litigation procedure.”

3. Judgment of the Supreme Court

(1) We examine ex officio.

According to the provisions of Articles 4, 16-2, 17, 19, and 23 of the Employment and Industrial Accident Insurance Premium Collection Act, a lawsuit seeking confirmation of non-existence of insurance premium payment liability in the employment insurance and industrial accident insurance that a business owner is automatically insured is a lawsuit claiming the legal relationship under public law and is a party suit under public law (see Supreme Court Decision 99Du2765 delivered on September 8, 200), and the Korea Workers' Compensation and Welfare Service under Article 3 subparagraph 2 of the Administrative Litigation Act and Article 39 of the Administrative Litigation Act. Nevertheless, it is erroneous to omit the judgment on the part seeking confirmation of non-existence of insurance premium payment liability by deeming the lawsuit of this case as a civil lawsuit by a single judge of the Incheon District Court, which is the first instance court, as a lawsuit seeking the return of unjust enrichment.

The instant lawsuit is an administrative litigation, and the civil lawsuit seeking restitution of unjust enrichment is filed as a joint litigation under Articles 10(2) and 44(2) of the Administrative Litigation Act. Thus, the Incheon District Court Panel Division as an appellate court must transfer the instant case to the Seoul High Court, which is the competent court, pursuant to Article 34(1) of the Civil Procedure Act and Article 28 subparag. 1 of the Court Organization Act. Therefore, the lower court erred by misapprehending the legal doctrine on the jurisdiction of administrative cases, thereby adversely affecting the conclusion of the judgment.

(2) We examine the grounds of appeal.

First, we examine the court's duty of explanation.

Article 4 of the Employment and Industrial Accident Compensation Insurance Act provides that matters prescribed by this Act concerning insurance business under the Employment Insurance Act and the Industrial Accident Compensation Insurance Act shall be performed by the Korea Workers' Compensation and Welfare entrusted by the Minister of Employment and Labor, and the defendant shall take charge of collecting insurance premiums in arrears. Therefore, the subject to whom the employment and industrial accident insurance belongs, i.e., the other party liable for each of the above insurance premiums by the employer is the Korea Workers' Compensation and Welfare Corporation, and the defendant is merely performing the duty to collect each of the above insurance premiums, and the defendant is merely performing the duty to collect the above insurance premiums, and thus, the Korea Workers' Compensation and Welfare Corporation shall file a lawsuit for confirmation of non-existence of the obligation to pay employment and industrial accident insurance premiums with the defendant. In addition, when the plaintiff was designated as the defendant in a party suit under the Administrative Litigation Act, the court may, upon the plaintiff's request, permit the correction of the defendant (Article 44(1) and Article 14 of the Administrative Litigation Act). If the plaintiff appears to have been designated as the defendant, the court shall exercise its right to ask the plaintiff to correct the defendant (see, etc.)

In light of the above legal principles, the defendant of the claim for confirmation of non-existence of the obligation to pay the insurance premium of this case shall be the Korea Labor Welfare Corporation, which is the main body to which the insurance premium belongs. Thus, the court of first instance should have exercised the right to explanation and had the plaintiff correct the defendant and proceeded with the lawsuit. Nevertheless, the court below erred by failing to correct the error of the

Secondly, it is necessary to review whether the amendment of the claim for nullification of the disposition of insurance premium is permitted.

With respect to the employment and industrial accident insurance premiums collected by the method of payment, such as the employment and industrial accident insurance premiums in construction business, the obligation to pay insurance premiums is determined by the reporting act of the person liable for payment without the imposition of insurance premiums by the Korea Labor Welfare Corporation, and thus, the defendant's disposition stated in the purport of the claim added in the original judgment appears to mean the disposition of collecting insurance premiums, not the disposition of imposing insurance premiums. However, since the lawsuit of this case, which was first raised, is combined with the lawsuit related to the lawsuit of this case, as seen earlier, the addition of the claim seeking nullification of the disposition of collecting insurance premiums, which is an appeal litigation, shall be deemed permissible pursuant to Articles 44(2) and 10 of the Administrative Litigation Act. Nevertheless

Third, the meaning of "business owner" under the Employment Insurance Premium Collection Act is examined.

According to Articles 8 and 9 of the Employment Insurance Act, Articles 6 and 7 of the Industrial Accident Compensation Insurance Act, and Articles 5(1) and (3) and 13(1) of the Industrial Accident Compensation Insurance Act, an employer of a business or place of business that employs workers, in principle, becomes an employment insurance and industrial accident insurance policyholder, and bears the obligation to pay the employment insurance premium and industrial accident insurance premium. If a project owner who newly constructs a building enters into a contract for all of the construction works to a contractor without directly performing the construction works, the contractor is, in principle, a contractor is a contractor, and the contractor is liable to pay each insurance premium under the Employment Insurance Act and the Industrial Accident Compensation Insurance Act, and if the project owner directly employs all or part of the construction works by directly using a worker, the project owner is the employer under the Employment Insurance Act and the Industrial Accident Compensation Insurance Act and bears the obligation to pay

In light of the above legal principles, the first instance court should have further deliberated on whether the report on the establishment of the insurance relationship under the name of the Plaintiff was forged, and whether the Plaintiff, the owner of the building, was directly performing construction works by using an employee, and should have determined who is the owner of the instant workplace. On the premise of this, the lower court should have determined who is the person liable for the payment of the instant insurance premium. In so doing, the lower court erred by misapprehending the legal doctrine on denying the Plaintiff’s assertion on the grounds that there was no evidence supporting the Nonparty

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is transferred to the Seoul High Court which is the competent court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)