(영문) 서울행정법원 2015.1.30. 선고 2014구합58549 판결

1. The Defendant’s disposition of February 20, 2013 and the disposition of the bereaved family’s benefits and funeral expenses against the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. 1) The Plaintiff’s husband, B, from March 201, worked as a daily worker in C (business operator: D) who is engaged in the business of transporting and installing factory machinery from March 201.

2) Article 8 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter “Insurance Premium Collection Act”) (hereinafter “Insurance Premium Collection Act”), C filed an application with the Defendant for approval of the application of a blanket application relationship with respect to construction business (technical equipment) on July 21, 201.

B.1) On December 27, 2011, E entered into a contract with Abandoned Automobile Co., Ltd. (hereinafter referred to as “Abandoned Automobile”), and with respect to the supply of goods for the installation and trial operation of the secondary plant of Abandoned Motor, located at the time of Chinese strong salt, and C was awarded a subcontract for the part of E (hereinafter referred to as “instant construction”).

2) Accordingly, 18 persons, including B, from January 19, 2012 to January 26, 2012, including B, performed the installation work of merra and scarra, necessary for the manufacture of vehicles at the said Ameral vehicle plant. As the time, it was impossible to install a part of the Cmeral with the design error of the Cmeral lending and loan control equipment (a device automatically pushing off a defective vehicle) at the time, the work was completed to dismantle Cmeral.

3) Since then, B left China on July 26, 2012 to complete the installation work of Cousdas, and entered Korea on July 30, 2012 after performing the installation work of Cydas at the said Amdas Factory until July 29, 2012.

C. B, from July 31, 2012, with severe decrease in body and severe stimulation symptoms, was administered in a nearby hospital at the residence, but, on August 2, 2012, with food and clothing mixed, 119 emergency squad.

On August 3, 2012, the deceased was sent to the Korean hospital, and around 11:35 on the following day, the deceased died from the respiratory part caused by an unknown shock. According to the autopsy report on the deceased B (hereinafter referred to as the "the deceased"), the deceased's private person is mixed with the urology of the urology merger witness.

D. On February 20, 2013, the Plaintiff asserted that the deceased’s death constitutes an occupational accident and filed a claim for the payment of survivors’ benefits and funeral expenses with the Defendant. However, on the ground that the Defendant: (a) on February 20, 2013, when the insured applied for insurance against the dispatched overseas and obtained approval, the said dispatched overseas shall be deemed an employee employed for the business within the territory of the Republic of Korea of the said insured; (b) however, in the case of C, the Industrial Accident Compensation Insurance Act is not applicable since there is less than one regular employee; and (c) on the Chinese site where the deceased was dispatched overseas, the bereaved family’s benefits and funeral’s site pay disposition (hereinafter “instant disposition”).

E. The Plaintiff filed a request for examination against the Defendant, but was dismissed, and the Industrial Accident Compensation Insurance Reexamination Committee filed a request for reexamination to the Industrial Accident Compensation Insurance Reexamination Committee, but was dismissed on February 21, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, 11, Eul evidence Nos. 1, 6 and 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) C is subject to the Industrial Accident Insurance Act because there are more than one full-time employee, namely, when calculating the number of full-time employees of C pursuant to the Labor Standards Act and subordinate statutes, since the total number of employees employed by C on July 2012 by the deceased is 174, and since F (D’s father) is included in the statement of payment of daily employment income (Evidence A No. 9), the total number of employees employed by C is 204, if calculated on July 2012 by adding the total number of employees of G (D’ mother) who are ordinarily employed, the total number of employees employed by C is 204, and if it is divided into 30 days, the number of employees employed by C is 6.8, and even if F is excluded from employees by considering it as joint operator, according to the Defendant’s assertion, the number of full-time employees is 5.8. Moreover, according to the “tax withholding receipt” (Evidence A0) as of May 1, 2011 to 12.31.

On the other hand, the construction of this case is ordered as the headquarters of the Abandoned Motor Vehicle China, which is the original contractor of the Abandoned Motor Vehicle, and some of them were subcontracted again by E and sub-subcontracted to C. Thus, even if the number of regular workers of C is less than one, it constitutes a business owner who is the original contractor under Article 7 of the Industrial Accident Insurance Act, Article 9 of the Insurance Premium Collection Act, and Article 7 (1) of the Enforcement Decree of the same Act and constitutes a business owner subject to the Industrial Accident Insurance

However, in light of the fact that the deceased reported the work and received instructions from CF while performing the installation work in China, the deceased did not receive benefits from C in addition to additional allowances for work performed during the above work, and worked in C even after his return to Korea, the installation work performed in Korea cannot be recognized as a separate overseas project separate from the domestic business, and the work performed by C and E are the same as the work performed in Korea ordinarily in Korea, even though the place where the deceased provided labor is moved to a foreign country, it does not constitute an overseas temporary agency worker. Thus, the deceased maintains the industrial accident compensation insurance relationship established between C or A motor vehicle, the principal contractor, and thus becomes subject to the Industrial Accident Compensation Insurance Act.

2) Even if the subject of direction and supervision over the Deceased, as alleged by the Defendant, is E, the work performed by the Deceased shall be deemed to belong to the E’s domestic business in the extension of the production of the body camera in this country. Therefore, the industrial accident compensation insurance relationship between E and the Deceased shall be maintained.

In addition, as alleged by the defendant, the subject of direction and supervision over the deceased is E, and if the deceased is an overseas dispatcher, the deceased shall be assessed as an employee E, and in this case, the deceased shall be recognized as an industrial accident compensation insurance relationship in accordance with Article 4 of the Enforcement Rule of the Industrial

3) During the period from July 26, 2012 to July 30, 2012, the Defendant asserted that “C” was not subject to the Industrial Accident Insurance Act because it did not submit an application for purchase of industrial accident insurance to the Plaintiff, etc. dispatched to the Defendant pursuant to Article 42 of the Enforcement Rule of the Insurance Premium Collection Act during the period from July 26, 2012 to July 30, 2012. However, the instant Corporation is not allowed to add the grounds for disposition that are not identical with the basic facts. Even if it is not, the Defendant’s assertion was premised on the premise that the deceased was dispatched overseas, and the deceased’s assertion is not a dispatched overseas, and thus, the Defendant’s assertion is without merit.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) According to the facts as seen earlier, the first reason for the instant disposition is a business place with less than one regular employee, and thus does not fall under the subject of the Industrial Accident Insurance Act pursuant to Article 6 of the Industrial Accident Insurance Act and Article 2(1)5 of the Enforcement Decree of the same Act. The second reason for the disposition is that C applied for the blanket application relation to the construction business (construction machinery) and obtained approval on July 21, 201, but did not apply for the insurance under Article 122 of the Industrial Accident Insurance Act for the deceased, who was dispatched overseas, and thus does not fall under the subject of the block application. Accordingly, the determination as to whether the above reason for the disposition is legitimate should be made below.

2) As to the first reason for disposition

Article 9(1) of the Insurance Premium Collection Act provides that when a construction business is carried out through multiple contracts, the original contractor shall, in principle, be deemed to be a business owner subject to the Insurance Premium Collection Act. Accordingly, the ground for Disposition 1 is unlawful, on the premise that the Plaintiff is a business owner, under the premise that the Plaintiff is a policyholder, and thus, is not subject to the Industrial Accident Compensation Insurance Act, since the Plaintiff was awarded a contract for installation and trial operation of a second-class car plant located in China from a motor vehicle in early December 27, 2011.

3) As to the second reason for disposition

A) Article 6 of the Industrial Accident Insurance Act provides that "this Act shall apply to all businesses or places of business that employ workers (hereinafter referred to as "business"): Provided, That this Act shall not apply to business prescribed by Presidential Decree taking into account risk rates, sizes, places, etc., and does not provide any particular provision as to whether such business includes a business carried out overseas. However, the Minister of Employment and Labor takes charge of industrial accident compensation insurance business, and if a certain condition prescribed in the Industrial Accident Compensation Insurance Act is met, a business owner is naturally insured, insurance premiums are uniformly determined and forced to collect insurance premiums, and Article 121 of the Industrial Accident Compensation Insurance Act provides for special cases concerning overseas business, and Article 122 of the Industrial Accident Compensation Insurance Act provides that the above Act shall apply only to business carried out within the Republic of Korea with the Korea Workers' Compensation and Welfare after filing an application for insurance coverage with the Korea Workers' Compensation and Welfare Service (see, e.g., Supreme Court Decision 200Du9820, Feb. 29, 2002).

B) In light of the following circumstances, it is reasonable to view that the deceased’s work was carried out by C. 7, Nos. 7, 9, and 5, and the overall purport of the arguments as to the deceased’s work, namely, ① from March 201 to March 22 of the month when the deceased was employed as daily workers, the deceased was engaged in the work of transferring machinery and equipment from C. ② the installation of the machinery and equipment manufactured by E from E was awarded to 18 persons, including the deceased, from January 19, 2012 to January 26, 2012, and the above installation work was not carried out by C. 200 to December 27, 2012.

4) Sub-committee

Ultimately, since the grounds for the disposition of this case are all illegal, the disposition of this case must be revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.