(a) Industrial accident compensation insurance fees and the date on which the period of extinctive prescription expires;

(b) Scope of application of Article 25(5) of the Industrial Accident Compensation Insurance Act concerning additional dues on industrial accident compensation insurance premiums;

A. The industrial accident compensation insurance fees and the claim for interest to be returned as a claim for return of unjust enrichment shall proceed with the extinctive prescription only when the claim is confirmed to have been returned. Accordingly, the imposition of additional collection of industrial accident compensation insurance is an administrative act and the judgment of administrative litigation to be revoked becomes final and conclusive, and the above imposition of additional collection becomes void, and the claim for return becomes effective from this point of time.

B. The provisions of Article 25(5) of the Industrial Accident Compensation Insurance Act concerning additional dues on the industrial accident compensation premiums apply only to the refund of the industrial accident compensation premiums which were paid in excess after December 19, 197, newly established in accordance with the principle of non-payment of the law, and with respect to the portion of the previous payment, the general principle of return of unjust enrichment under the Civil Act is followed. Although the above insurance premium was paid in excess of the industrial accident compensation insurance premium before the establishment of the above law and the disposition of imposition of the above premium was cancelled after the establishment of the above law, it cannot be applied retroactively unless the transitional provisions are provided.

A. Article 166 of the Civil Act; Article 25(5) of the Industrial Accident Compensation Insurance Act

Attorney Cho Young-chul et al., Counsel for the defendant-appellant

Korea

Seoul High Court Decision 84Na4228 delivered on March 4, 1985

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

We examine the grounds of appeal.

1. Ground of appeal No. 1

The gist of the grounds of appeal as to this point is that the claim, which is the cause of the interruption of prescription, under Article 168(1) of the Civil Act, refers to the act of executing in the judicial or extra-judicial proceedings the judicial right, which is the cause of the interruption of prescription, which is the cause of the interruption of prescription. Thus, the claim in this trial is a claim in civil procedure, so it cannot be deemed that the administrative litigation for which the plaintiff sought the cancellation of the disposition imposing insurance premium, and the plaintiff filed a claim for the interest of this case as a civil lawsuit only after August 14, 1984. Thus, the plaintiff's claim for the return of unjust enrichment has expired without interruption

However, the industrial accident compensation insurance fees and the right to claim interest which are to be returned as unjust enrichment claim shall commence only when it is confirmed to have been returned. As such in this case, the imposition disposition of additional collection of industrial accident compensation insurance is an administrative act which is fair and the judgment of administrative litigation which revokes it becomes final and conclusive, and thus, the imposition disposition of additional collection becomes void, and the claim for the return becomes effective from this point of view, and the extinctive prescription shall take place from this point. Therefore, the court below's rejection of the Defendant's claim for the extinction

There is no reason to argue that the purport of the original adjudication on the starting point of extinctive prescription is confused with the cause of interruption of extinctive prescription or misunderstanding.

2. The second ground for appeal

According to the reasoning of the judgment below, under Article 25(5) of the Industrial Accident Compensation Insurance Act (amended by Act No. 3026 of Dec. 19, 197), where the Minister of Labor returns the excess amount due to the cancellation of the disposition imposing industrial accident compensation insurance premiums, etc., the court below shall add the amount calculated according to the interest rate as prescribed by the Presidential Decree to the excess amount. According to Article 62(4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 8857 of Feb. 13, 1978), the interest rate of 10 billion won shall be 4 % per day for the money to be returned. In applying the above provisions, the above provisions do not have any transitional provisions concerning the return of the premium which was exceeded before the amendment of the above Acts and subordinate statutes, but the above provisions have to be added to the calculation of the interest rate of 100 won per day after the amendment of the Civil Act, since the above provisions have to be applied to the calculation of the interest rate of 10 won per day after the amendment of the Civil Act.

Therefore, even though the principle of no legal action, which states that the facts that occurred before the enactment of the law shall not be applied retroactively to the facts that occurred, even if it is not a penal provision, there is a need to apply the new law retroactively to the social and economic reasons, or there is a substantial and serious reason for the reform of the system based on a new ideology, or there is a substantial and serious reason for the reform of the system based on a new ideology, there is a transitional provision about it, and even if it is recognized that it is applied retroactively, there is a transitional provision about it, and it is not applied retroactively without any basis for the transitional provision, etc.

In regard to the Industrial Accident Compensation Insurance Act, this Act, which was first enacted by Act No. 1438 of Nov. 5, 1963, stipulated the collection of additional dues, arrears, etc., and did not provide any provision on the refund amount, and did not establish any provision on the interest payment, etc., with regard to the refund amount, newly established Article 25 (5) of the Act as Act No. 3026 of Dec. 19, 197, which newly established the same Act and its amendment, and did not stipulate interest and interest payment, and did not provide any transitional provision. In such a situation where the legislation and its amendment are weak in terms of social and economic foundation and no social security system such as industrial accident compensation insurance is established, it would be difficult to calculate the interest rate solely on the ground that the above provision on interest payment would be inconsistent with the principle of fairness, such as the refund of the industrial accident compensation insurance money paid in excess of before Dec. 19, 1977.

In return of unjust enrichment, in principle, the beneficiary is liable to return the profit received within the existing scope and the beneficiary returns the profit with interest added thereto when the beneficiary is malicious. Thus, in relation to the Civil Act, the Industrial Accident Compensation Insurance Act, which is a special law, is enacted, prior to the enactment of the above provision, the general principle is applicable only to the return of the industrial accident compensation insurance paid thereafter, and the collection of the late payment penalty is only an objection to the return of the industrial accident compensation insurance paid thereafter, and the collection of the late payment penalty is imposed as a sanction against the employer's negligence of paying the insurance premium, which is the operation of the industrial accident compensation insurance business rather than unjust enrichment. In this regard, the original adjudication to the effect that the application of the principle of no payment of law is excluded from the application of the principle of no payment of law on the basis of the principle of fairness is extremely weak.

Therefore, in this regard, there is a reason to discuss the appeal for misunderstanding the legal principles of the court below.

3. Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the Seoul High Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Chang-chul (Presiding Justice)