Newsung Construction Co., Ltd. (Law Firm Kim & Kim, Attorneys Han-ro et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation (Attorney Choi Jong-young, Counsel for defendant-appellant)

April 27, 2005

Seoul Administrative Court Decision 2000Gu8379 delivered on February 14, 2001

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

Each disposition of the Defendant imposed on the Plaintiff on December 26, 1999 KRW 227,756,230, industrial accident compensation insurance fees in 1996, KRW 53,493,570, and KRW 214,039,750, respectively, shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or each entry of Gap evidence 1-1-2, Gap evidence 20-1, 20-2, Gap evidence 23-25, Gap evidence 27-1-2, Eul evidence 1-2 (including above numbers), and Eul evidence 1-1 through 8-2 (including above numbers), and the result of each fact inquiry to the Minister of Labor of the court of the first instance.

A. On November 5, 1963, the Industrial Accident Compensation Insurance Act was established for the purpose of compensating workers for occupational accidents promptly and fairly, establishing and operating insurance facilities necessary therefor, contributing to the protection of workers by carrying out activities to prevent accidents and promote workers' welfare. In order to cover the costs of litigation for the insurance project, the Industrial Accident Compensation Insurance Act (wholly amended by Act No. 4826, Dec. 22, 1994; hereinafter referred to as the “former Industrial Accident Compensation Insurance Act”) paid in advance the estimated premiums by multiplying the total estimated wage amount by the premium rate applicable to the same kind of business with the estimated wage rate applied to the same estimated wage amount after the end of the insurance year under Article 25 of the former Industrial Accident Compensation Insurance Act, and collected the premiums by calculating the final premium and settling the estimated premium according to the premium rate applicable to the same type of business as the actual wage amount paid after the end of the

B. However, in the case of a construction business and a set-off business, it is practically impossible to determine the total wage due to the wide subcontract and a sub-subcontract. Accordingly, in the case of a construction business, the Minister of Labor announced the labor ratio to calculate the estimated premium from 1974, and had the total wage calculated and paid the estimated premium by calculating the estimated wage by the method of multiplying the total construction amount by the labor ratio, after which the Minister of Labor announced the labor ratio to calculate the estimated premium, and thereafter, Article 51-2 (2) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act amended by Presidential Decree No. 10839, Jun. 14, 1982, as amended by Presidential Decree No. 10839 of June 14, 1982, "in the case of construction business difficult to determine

C. However, there is a problem that the above provision of the Enforcement Decree cannot be applied to the business without the concept of "total construction amount" like the punishment business, and it is revised by Presidential Decree No. 11197 on August 6, 1983 to the effect that "if it is difficult to determine the total estimated wage amount pursuant to Article 23 (1) of the Act, the amount of wages calculated according to the labor ratio separately determined and publicly notified by the Minister of Labor shall be the total estimated wage amount." However, in calculating the final premium, there was no provision for calculating the total amount of wages in accordance with the labor ratio publicly notified by the Minister of Labor.

D. However, at the time, the Minister of Labor, who is the person with the authority to collect insurance premiums, established the final premium settlement guidelines (established rules No. 216, Oct. 9, 1992), and determined the total amount of wages in the manner of “direct labor cost + (foreign labor cost + labor ratio)” when it is difficult to determine the total amount of wages due to subcontracting works, if it is difficult to determine the final premium due to subcontracting works, and the total amount of wages was determined in the manner of “direct labor cost + (foreign labor cost + labor ratio)” by applying publicly notified labor ratio

E. However, after the Board of Audit and Inspection conducted an audit on the Ministry of Labor on June 29, 194, the Minister of Labor announced to the Minister of Labor that “(i) labor ratio prepared under Article 51-2(2) of the former Enforcement Decree of the Industrial Accident Compensation Act shall be limited to the time when the estimated premium is reported and paid, but it is against Article 3(1) and Article 15(1) of the above Guidelines on the Settlement of Final Premium; (ii) it is against Article 25(1) of the former Industrial Accident Compensation Act; and (iii) the subcontractor’s labor ratio of the construction work by sewage in the year 193 and 194; and (iv) the subcontractor is ordinarily using many human resources rather than the equipment compared to the original contractor. However, even if the subcontractor is not a specialized construction business, it is not a contractor who performs actual construction work but a contractor, the primary contractor is determined and publicly notified as the labor ratio of the subcontractor, thereby making it unreasonable to determine the total amount of wages in the construction work, and thus, violates the former Industrial Accident Compensation Act.”

F. As a result of the amendment of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4826, Dec. 22, 1994; hereinafter referred to as the "Industrial Accident Compensation Insurance Act") Article 13 of the Industrial Accident Compensation Insurance Act (amended by Act No. 5881, Feb. 8, 1999; hereinafter referred to as the "Industrial Accident Compensation Insurance Act") provides that the Minister of Labor shall establish a defendant Corporation and entrust it to take charge of insurance business, and Article 62(2) newly establishes Article 62(2) and provides that "where it is difficult to determine the total estimated amount of wages or the total amount of wages under Articles 65(1) and 67(1), the Minister of Labor shall determine the total estimated amount of wages or the total amount of wages according to the ratio of labor stipulated in the previous Industrial Accident Compensation Act x the contents of Article 51-2(2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act x the calculation of the total amount of wages x the calculation of the total wages.

G. Meanwhile, the Plaintiff, a juristic person engaged in civil engineering and building business, declared and paid the final premium premium in 196, 197, and 1998, paid the industrial accident insurance premium by applying the relevant premium rate after calculating the amount of the final premium in accordance with the following methods: (a) the Defendant deemed that the above method applied by the Plaintiff was erroneous in settling the industrial accident insurance premium; (b) Article 62(2) of the Industrial Accident Compensation Act; and (c) the Minister of Labor calculated the total amount of the wages in accordance with the “total construction premium rate x labor rate” in 1996, 197, and 1998, based on which the final premium was determined based on the final premium rate (including the notice of total construction premium x labor rate x KRW 27,2756,230, 199, 2397, 199, 309, 1939, 197, 197, 199, 1939, 1997.

(unit: % for the total construction amount)

The table classification contained in the main text shall be 30 general construction (A) 1997 198 30 30 29 general construction (29 224 24 24 28 28 construction or 30 30 28 c0 c0 c0 c0 28 c0 c0 c0 c0 c0 30 30 28 c0 c1. 1996 1. 1. 1. 1997 and 31.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The “Insurance Contribution Investigation Collection Notice” and “Payment Book” written by the Defendant in the instant disposition are not a notice of payment prescribed by the Act, but in particular, since the above payment slip is a complete document with no official seal, the instant disposition of imposition based on these documents is unlawful.

(2) The final premium is, in principle, calculated by applying the premium rate to the actual total amount of wages. Thus, the total amount of wages can be estimated according to the labor ratio publicly notified by the Minister of Labor only when it is difficult to determine the total amount of wages excluded under Article 62(2) of the Industrial Accident Compensation Insurance Act. The purpose of Article 62(2) is to ensure that most construction works are carried out through several contracts. In this case, the amount of wages that the original contractor has paid to his/her workers can easily be determined through a series of contracts, but the amount of wages that the subcontractor has paid to his/her workers cannot be determined and publicly notified by the Minister of Labor, taking into account that the subcontractor’s actual impossibility of understanding the amount of wages paid to his/her workers, it is merely a delegation to the Minister of Labor to determine and publicly notify the amount of wages of the subcontracted construction work, and even if it is not delegated to the Minister of Labor to apply the labor ratio to the total amount of wages

(3) The concept of “total construction amount” used in the instant public notice does not mean the provision or delegation of the law, and the introduction of such new concept itself goes beyond the scope of delegation by the mother law. Although Article 2(1)2 of the Enforcement Decree of the Industrial Accident Compensation Act defines the concept of “total construction amount” as “total construction amount” under Article 2(1)2 of the Enforcement Decree of the Industrial Accident Compensation Act, since insurance premium may be paid twice or may not be included in the construction amount due to its nature, it cannot be deemed the same as the concept of “total construction amount” and the Enforcement Decree of the Industrial Accident Compensation Act. In fact, in calculating the total construction amount, the Defendant arbitrarily applies the concept of “total construction amount” under Article 2(1)2 of the Enforcement Decree of the Industrial Accident Compensation Act without using the concept of “total construction amount” under Article 2(1)5 of the Enforcement Decree of

(4) For a long time, construction companies including the Plaintiff have calculated the total amount of wages in the way of “direct labor cost + (foreign cost + labor ratio)” and paid industrial accident insurance premiums. Accordingly, the Defendant did not have any particular objection to this, and the Defendant expressed on February 3, 1998 that construction companies including the Plaintiff, etc. would be exempted from the final premium calculation in 1996 and calculated the total amount of wages in the previous way. The Defendant again confirmed this policy on February 19, 199. Accordingly, the Plaintiff reported and paid the final premium from 1996 to 198 by applying the method of “direct labor cost + labor cost + labor ratio.” Nevertheless, the Defendant calculated the total amount by applying the calculation method of “total labor cost ratio” x the total amount of wages, unlike the previous one, was unlawful in violation of the principle of trust and good faith.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether procedural defects are procedural defects

According to Articles 67(4) and 95 of the Industrial Accident Compensation Act, and Article 21(1) of the Administrative Management Regulations, when the defendant wishes to collect final premium and additional dues, he/she shall notify the defendant of the payment in writing stating the amount and the deadline for payment, and shall affix his/her official seal on the document.

In full view of the purport of the entire arguments as seen earlier, the Defendant served the instant disposition on the Plaintiff with the notice of insurance premium collection along with the original statement of payment slip. The above written statement of payment slip states the amount and the payment deadline, and the notice of insurance premium collection can be recognized as having the official seal. According to the above facts, the notice of insurance premium collection and the notice of payment slip should be deemed as a document notifying the payment of final premium and additional dues as a whole, and as such, the aforementioned essential matters and the official seal were kept, the instant disposition, which notified the Plaintiff of final premium and additional dues to be collected, was lawful. The Plaintiff’s above assertion is without merit.

(2) Whether the notice of this case exceeded the scope of delegation

The purport of Article 62(1) of the Industrial Accident Compensation Insurance Act, where it is difficult to determine the total amount of wages under Article 62(2) of the same Act by multiplying the total amount of wages of the business operated by the insured by the premium rate applicable to the same kind of business, is to calculate the total amount of wages on the basis of the amount of wages actually paid to the workers. However, if it is impossible to calculate the total amount of wages based on the evidence, the authority to publicly notify the labor rate in the appropriate manner so that the total amount of wages can be calculated by the amount of wages actually paid to the workers and then delegate the authority to determine the total amount of wages on the basis thereof

In light of this purport, in a case where the portion of the directly operated construction project that is easy to grasp the actual wage amount and the portion of the subcontract construction project that is virtually impossible to grasp, in determining the labor ratio for determining the total wage amount, considering the characteristics of each type of business and all the circumstances, ① the method of determining and publicly notifying the labor ratio applied to the total construction cost, including both the directly operated construction and subcontracted construction project, ② the method of determining and publicly notifying the subcontract labor ratio applied only to the portion of the subcontract construction project, ③ the method of determining and publicly notifying all labor ratio of the above two parties, ③ the method of applying the labor ratio by determining and publicly notifying and publicly notifying all the labor ratio of the above two parties. However, even in a case of any method, it is difficult to accurately reflect the total wage amount due to the nature of estimation, and whether to choose one of the above methods belongs to the discretion of the Minister of Labor. Accordingly, if the Minister of Labor notifies the labor ratio by adopting one of the above methods, it is difficult to view that the notice goes beyond the delegation scope of the

(3) Whether it is unlawful to use the concept of "total construction amount"

According to the delegation of Article 62(2) of the Industrial Accident Compensation Act, whether to use any concept at the discretion of the Minister of Labor when publicly announcing the presumed amount of total wages or the ratio of labor to determine the total amount of wages shall be deemed to be at the discretion of the Minister of Labor. Therefore, the industrial accident law did not delegate the public announcement of labor ratio using the "total construction amount" and it cannot be said that the Minister of Labor publicly notifies labor ratio using the "total construction

In addition, the concept of "total construction amount" used in the above notice is independently interpreted in light of the purport of the system that makes it difficult for the Minister of Labor to determine the total amount of wages according to the labor ratio determined and publicly notified by the Minister of Labor in cases where it is difficult to determine the final premium calculation method and the total amount of wages. Thus, unlike the definition of "total construction amount" as stipulated in Article 2 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act, the Defendant calculated the final premium of the Plaintiff by deeming the “total construction amount” as different from the “total construction

Furthermore, in full view of the purport of the entire argument in the above evidence, the defendant considered the "total construction amount" as "annual work performance" in calculating the total amount of the plaintiff's wages according to the labor ratio as stipulated in the above notice, and recognized the fact that the total amount of wages is calculated by multiplying the above labor ratio by the labor cost. This can be understood as aiming at collecting the insurance premium within the minimum limit to achieve the purpose of industrial accident insurance in consideration of the circumstances where the insurance premium is paid twice or less or the construction period is not to be included in the construction cost due to its characteristics, and where the industrial accident insurance is operated on a yearly basis for more than one year, the total amount of wages shall be calculated according to the performance of each year. Accordingly, it is justifiable for the defendant to consider the annual work performance of the relevant total construction work as the total construction cost and calculate the total amount of wages by multiplying the above notice by the labor ratio as stipulated in the above notice (see Constitutional Court Order 200Hun-Ga20, Nov. 25, 2004).

Therefore, the plaintiff's above assertion related to "total construction cost" is without merit.

(4) Whether the principle of good faith is violated

Considering that the Defendant did not raise any objection against the report and payment of industrial accident insurance premium by applying the method of “direct labor cost + (foreign cost x general labor ratio)” to construction companies including the Plaintiff, the Defendant cannot be deemed to have avoided the public view that applying the method of “direct labor cost + (foreign cost x general labor ratio)” cannot be deemed to have led to the Defendant’s legitimate interest of the Plaintiff, who is the insured, even after the Defendant issued a notice to the effect that the Defendant would calculate the total amount of wages by means of “total construction cost x general labor ratio”. Moreover, inasmuch as the Defendant makes an additional settlement only at the time when the Defendant issued the notice to the effect that the Defendant would calculate the total amount of wages by erroneously applying the method of “total labor cost x general labor ratio,” it cannot be deemed that the instant disposition would result in infringing the Plaintiff’s legitimate interest of the insured

In particular, in addition to the purport of the argument in Gap evidence No. 5, the defendant, through the guidelines of February 3, 1998, recognized that the company whose payment rate for the last three years is less than 75% as of September 30, 1997 as of September 30, 197, contributed to the industrial accident insurance finance, and thereby exempted the industrial accident insurance premium settlement inspection for the year 1996 and the year 1997. However, it can be recognized that the company recognized as having failed to fulfill the duty of bona fide return and notified the plaintiff of the purport that it should conduct an actual inspection. As long as the plaintiff paid the insurance premium calculated by the method of "direct labor cost + (foreign labor cost + general labor ratio)" as before, it is reasonable to view that the plaintiff is excluded from the industrial accident insurance premium due to the above guidelines, and thus, the plaintiff's assertion that the disposition in this case is unlawful against the principle of good faith or prohibition of retroactive taxation is without merit.

3. Conclusion

Therefore, the plaintiff's claim seeking revocation is dismissed on the premise that the disposition of this case is unlawful, as it is without merit, and the judgment of the court of first instance is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Lee Sung-sung (Presiding Judge) (Presiding Judge)