In case where a company runs a different kind of business to which premium rates are applied for each business place with different business places, the criteria for determining whether the industrial accident compensation insurance relationship is established.

[1] Article 5 of the Industrial Accident Compensation Insurance Act

Supreme Court Decision 87Nu1078 delivered on February 28, 1989 (Gong1989, 543) Supreme Court Decision 90Nu4204 delivered on May 11, 1990 (Gong1990, 1278), Supreme Court Decision 90Nu4204 delivered on January 25, 1991 (Gong1991, 877), Supreme Court Decision 91Nu2328 delivered on December 24, 1991 (Gong192, 702), Supreme Court Decision 2002Du6866 delivered on March 28, 2003 (Gong203, 1089)

Plaintiff (Attorney Go Jong-soo, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

Gwangju High Court Decision 2004Nu62 decided September 10, 2004

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

1. The judgment of the court below

(3) According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s business owner’s duty of industrial accident compensation insurance for 30 percent or more of the total floor area of 6.42 square meters to be covered by the Industrial Accident Compensation Insurance Act (hereinafter “this case’s construction work”) was not covered by the Industrial Accident Compensation Insurance Act by the Industrial Accident Compensation Insurance Act, and the Plaintiff’s business owner’s duty of industrial accident compensation insurance for 3,150,00 square meters or more to be covered by the Industrial Accident Compensation Insurance Act, and the Plaintiff’s business owner’s duty of industrial accident compensation insurance for 19,000 square meters or more to be covered by the Industrial Accident Compensation Insurance Act. However, the lower court determined that the Plaintiff’s business owner’s duty of industrial accident compensation insurance for 30,000 square meters or more to be covered by the Industrial Accident Compensation Insurance Act was not covered by the Industrial Accident Compensation Insurance Act. On the other hand, the Plaintiff’s business owner’s duty of industrial accident compensation insurance for 30,003 square meters or more of the rooftop construction work.

2. Judgment of the Supreme Court

A. First, the court below's determination that even if the construction of this case executed by the Labor Safety Act, the original contractor, constitutes a workplace exempt from industrial accident insurance pursuant to Article 9 (1) and the proviso to Article 5 of the Industrial Accident Insurance Act, and Article 3 (1) 3 of the Enforcement Decree of the same Act, if the YoungINC, who employs the plaintiff as the subcontractor, purchased industrial accident insurance policy separately, it is reasonable to recognize the establishment of the industrial accident insurance relationship with the plaintiff as the business owner, and there is no error in the misapprehension of legal principles as to the establishment of the industrial accident insurance relationship as alleged in the ground of appeal.

B. However, without examining whether the industrial accident insurance relationship is established with respect to the instant construction works, it is difficult to accept the lower court’s determination that the air accident insurance should be applied as a matter of course to the instant accident, as the user, who employs the Plaintiff, is an industrial accident insurance policyholder.

In a case where a company operates different types of business with different types of insurance premium rates for each place of business, unless they fall under the block application of businesses, it is necessary to first examine whether the industrial accident insurance relationship has been established at each place of business (see Supreme Court Decision 2002Du6866, Mar. 28, 2003).

According to the facts and records established by the court below, PungINC has carried out various construction works in a separate place from a place where construction materials wholesale and retail business is operated, and such construction works constitute "a separate general construction work (insurance rate of 29/1,000)" rather than "a wholesale and retail business and a repair business for consumer goods (insurance rate of 5/1,000)" under the Industrial Accident Insurance Rate Table.

Therefore, it is necessary to examine whether the industrial accident insurance relationship has been established for each construction project implemented by the YoungINC. Accordingly, the industrial accident insurance relationship is not established as a matter of course since the total floor area of the instant construction project affected by the Plaintiff does not exceed 330 square meters, and the industrial accident insurance relationship is established only when the business owner of the YoungINC voluntarily purchased industrial accident insurance for the instant construction project with the Defendant’s approval or subject to the block application of each project of the YoungINC including the instant construction project.

Nevertheless, in this case where there is no evidence to acknowledge that the business owner of the YoungINC arbitrarily purchased industrial accident insurance regarding the instant construction works or that each business of the YoungINC constitutes a blanket application, the lower court concluded that industrial accident insurance should be applied as a matter of course to the Plaintiff, who is an employee of the industrial accident insurance company, and that the instant disposition was unlawful on the premise that the industrial accident insurance relationship is established with respect to the instant construction works. In so doing, the lower court erred by failing to exhaust all necessary deliberations on the workplace subject to industrial accident insurance or by misapprehending the legal principles on the establishment of industrial accident insurance relationship, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)