Where an employer pays nursing expenses to an employee who suffers from occupational injury or disease, whether the employer can reduce the negligence of the employee (negative)

Compensation for expenses incurred in providing care to a worker who suffers from occupational injury or disease constitutes compensation for medical care under the Labor Standards Act (Article 78 of the Labor Standards Act and Article 55 of the Enforcement Decree of the Labor Standards Act). If an employer compensates workers for medical care under the Labor Standards Act, the employer may not be exempt from paying an amount equivalent to the rate of negligence

Article 763 of the Civil Act, Article 78 of the Labor Standards Act, and Article 55 of the Enforcement Decree of the same Act

Supreme Court Decision 81Meu351 Decided October 13, 1981 (wholly agreed upon), Supreme Court Decision 82Meu1702 Decided April 12, 1983, Supreme Court Decision 85Meu229 Decided March 4, 1986

[Judgment of the court below]

Daewoo Shipbuilding Industrial Co., Ltd., Counsel for the defendant-appellee

Busan High Court Decision 87Na207 delivered on September 7, 1988

The part of the judgment below on the property damage among the part on the plaintiff's failure is reversed and that part of the case is remanded to the Seoul High Court.

The plaintiff's remaining appeals are dismissed.

The costs of appeal to the Supreme Court are assessed against the plaintiff.

We examine the grounds of appeal.

(1) According to the reasoning of the judgment below, the court below acknowledged the plaintiff's negligence of this case as follows: (a) the plaintiff, based on the sck beam's sck's sck's sck's sck's sck's sck's sck's sck's sck's scl's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's sck's ss sck's sc.

In light of the records, the fact-finding and judgment of the court below are correct, and there is no error of erroneous determination of mistake or fault ratio such as the theory of lawsuit, so the argument is groundless.

(2) According to the reasoning of the judgment below, the court below acknowledged the fact that the property damages suffered by the above plaintiff due to the accident in this case were 5,217,053 won, and determined the defendant's compensation amount as KRW 38,651,937 in consideration of the above plaintiff's negligence leading to the accident in this case, and deducted the above compensation amount of KRW 8,478,390 in disability compensation amount, KRW 5,142,323 in full, as well as KRW 3,658,20 in nursing compensation amount of KRW 1,097,460 in proportion to the above plaintiff's negligence ratio of KRW 3,658,20 in nursing compensation amount, which the plaintiff received from the defendant.

The purport of the judgment of the court below is that the defendant paid 1,097,460 won, which is the amount equivalent to the plaintiff's fault ratio among 3,658,200 won of nursing expenses paid by the defendant, to the defendant that the plaintiff should bear, and thus, the defendant has the right to claim the return of unjust enrichment, which is set off against this equivalent amount.

However, compensation for expenses incurred in nursing an employee injured on duty or disease constitutes compensation for medical care under the Labor Standards Act (Article 78 of the Labor Standards Act, Article 55 of the Enforcement Decree of the Labor Standards Act), and if an employer compensates an employee for medical care under the Labor Standards Act, the employee cannot be exempted from paying an amount equivalent to the rate of negligence on the ground that the employee was negligent (see Supreme Court Decision 81Meu351, Oct. 13, 1981). Thus, in compensating for expenses incurred in nursing the Plaintiff, the Defendant is unable to compensate by reducing the amount equivalent to the rate of negligence on the part of the Plaintiff, and all of the nursing expenses should be compensated.

Of the nursing expenses paid by the court below, the determination that the defendant has no obligation to compensate for the amount equivalent to the ratio of negligence of the plaintiff among the nursing expenses paid by the court below is erroneous in the misapprehension of legal principles as to the compensation for medical care. Therefore, the argument that points this out

(3) According to the reasoning of the judgment below, the court below calculated 20,000 won for each of the above plaintiff's 5,000,000 won for consolation money due to the accident of this case, his parents, and 1,000,000 won for each of the other's siblings, taking into account the plaintiffs' age, family relation, circumstances and result of the accident of this case, degree of negligence, and all other circumstances revealed in the pleading.

In light of the records, the consolation money of this case, recognized by the court below, seems to be too little like proper theory and theory, and therefore, the argument is groundless.

(4) Therefore, the part of the judgment of the court below regarding property damage among the plaintiff's failure portion is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the plaintiff is dismissed, and the costs of appeal as to the dismissal of appeal are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Song Man-man (Presiding Justice)