Plaintiff (Law Firm International, Attorneys Jeon Soo-soo et al., Counsel for plaintiff-appellant)

Korea Labor Welfare Corporation

October 17, 2008

Busan District Court Decision 2006Gudan4350 Decided June 18, 2008

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The defendant's disposition of rejecting the first application for medical care against the plaintiff on September 9, 2005 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. At around 08:40 on July 8, 2005, the Plaintiff, a part-time employee, was employed by Nonparty 1 (non-party in the judgment of the Supreme Court), and went on the roof for the repair work of approximately 80 square meters of the 3 roof of the warehouse located in the Kim Jong-dong, Kim Jong-dong (hereinafter referred to as the “instant construction work”). The Plaintiff, a part-time employee, was on the roof of the instant construction work (hereinafter referred to as the “instant construction”). The Plaintiff fell with the asbestos slate, and suffered an injury to the 1st century, which was accompanied by the spine damage in front.

B. The Plaintiff filed an application for medical care with the Defendant on September 9, 2005, but the Defendant rendered a disposition to return the application for medical care (hereinafter “instant disposition”) on the ground that the instant construction project executed by a person who is not a constructor and does not fall under the total construction cost of less than KRW 20 million and falls under the total construction area of less than KRW 330 square meters, and the Industrial Accident Compensation Insurance Act (amended by Act No. 7796, Dec. 29, 2005; hereinafter “Industrial Accident Insurance Act”) cannot be deemed as a place of business subject to the obligatory application of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Insurance Act”).

C. The Plaintiff, who was dissatisfied with the instant disposition, filed a review and a request for reexamination, but all of the decision of dismissal was dismissed.

[Ground of recognition] Facts without dispute, Eul evidence Nos. 1, 2, Eul evidence No. 2-1, Eul evidence Nos. 3 and 4, Eul evidence No. 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The Defendant asserts that “total construction amount” under the Enforcement Decree of the Industrial Accident Insurance Act refers to an amount excluding value-added tax. The instant construction amount is less than KRW 20 million, including value-added tax, and is less than KRW 20 million, and thus excluded from value-added tax. Accordingly, the Plaintiff asserts that the instant construction project, including value-added tax, is subject to compulsory application of the Industrial Accident Insurance Act, and thus, the instant disposition made on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On July 4, 2005, Nonparty 2 contracted the instant construction work to Nonparty 1, the Plaintiff’s business owner, for the period from July 5, 2005 to August 2005.

(2) At the time, Nonparty 2 did not mention the payment of value-added tax between Nonparty 1 and Nonparty 1, but the confirmation document prepared by Nonparty 1 on August 22, 2005 is written with the construction amount of KRW 20 million including value-added tax, and the confirmation document written by Nonparty 2 on August 23, 2005 is also written as above.

(3) Meanwhile, from October 30, 1995, Nonparty 1: (a) from around 30, 1995 to retail business; (b) made its name as “○○ High Timber Iron Co., Ltd.”; (c) made business registration under the Value-Added Tax Act; and (d) made small-scale construction related thereto; (c) however, there was no registration of construction business under the Framework Act on the Construction Industry.

[Ground of recognition] Evidence Nos. 5, Eul evidence Nos. 6-1, 2, 3, Eul evidence No. 7, non-party 1 and 2's testimony and the purport of the whole pleadings

D. Determination

(1) Article 5(3) of the Industrial Accident Insurance Act provides that an owner of a business subject to the Industrial Accident Insurance Act shall naturally become an industrial accident insurance policyholder under the Industrial Accident Insurance Act. According to Article 5 of the Industrial Accident Insurance Act, Article 3(1)3 of the Enforcement Decree of the Industrial Accident Insurance Act, and Article 2(1)2 of the Enforcement Decree of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance, the Industrial Accident Insurance Act applies to all businesses or places of business that employ workers. However, in cases of construction works performed by a person other than a constructor, etc., taking into account the risk ratio, scale, place, etc. of the business, the total construction amount (including the market conversion amount of the materials if the owner provides materials) is less than 20 million won, or the construction or substantial repair of a building, the total construction amount of which is less than 330 square meters, the construction works are excluded from the application of the Industrial Accident Insurance Act. However, any business owner falling thereunder, with the approval of the

(2) According to the above facts, since the construction cost of the instant construction project is KRW 20 million including value-added tax (see Supreme Court Decision 99Da62821, Feb. 22, 2000), it is determined whether the Industrial Accident Insurance Act applies to the instant construction project depending on whether the “total construction cost” is included in the “total construction cost of less than twenty million won,” which is a business excluded from the subject of the bound application of the Industrial Accident Insurance Act.

(3) On the other hand, value-added tax is a tax imposed by the State on the basis of added value created in all stages in which goods and services are produced, supplied or distributed and paid by the business operator and by the State. On the other hand, Article 2 (1) 2 of the Enforcement Decree of the Act on the Collection of Insurance Premiums for Employment Insurance and Industrial Accident Compensation Insurance provides that "total construction amount" refers to the contract price under the contract (including the market price conversion amount of the materials if the ordering person provides materials) in the performance of total construction work, and Article 2 (8) of the Framework Act on the Construction Industry provides that "contract" means a contract under which the contracting party agrees to complete the construction work regardless of any name such as prime contract, subcontract, consignment or others, and the other party agrees to pay the price for the result of the construction work. Thus, even if value-added tax is paid and received between the parties under the contract along with the construction cost, it is only a tax to pay it to the other party on behalf of the other party, and there is no room

Therefore, the total construction cost under the Enforcement Decree of the Industrial Accident Insurance Act refers to an amount that does not include value-added tax. Thus, the Corporation shall be excluded from the subject of the bound application of the Industrial Accident Insurance Act as it falls under the total construction cost of less than twenty million won executed by a person who is not a constructor. On the other hand, the Plaintiff, who was engaged in the instant construction, cannot receive insurance benefits under the Industrial Accident Insurance Act, since Nonparty 1 did not have any data on industrial accident

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.

Judges Kim Shin (Presiding Justice)