Plaintiff (Attorney Lee Jae-ap et al., Counsel for plaintiff-appellant)

Korea Mine Reclamation Corporation (Attorney Kim Jong-tae, Counsel for the plaintiff-appellant)

January 25, 2018

1. The defendant shall pay to the plaintiff 29,674,717 won with 5% interest per annum from November 2, 2016 to March 22, 2018, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 108,80,000 won with 5% interest per annum from the day after the delivery of a copy of the complaint of this case to the day after the judgment is rendered, and 15% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. The deceased non-party 1 (date of birth omitted) who is the husband of the plaintiff (hereinafter "the deceased"), worked as a coal part at ○ Mining Center (hereinafter "the mining center of this case") from December 4, 1990 to April 30, 1993, and the mining center of this case was closed on September 18, 1993.

B. Around October 191, the Deceased was diagnosed as 1/1 of pneumoconiosis-type 1/1 as a result of the close diagnosis conducted by the △△△ Hospital of the Korea Industrial Accident Medical Center. Around October 2005, as a result of the close diagnosis conducted at the same hospital (emergency) around the same hospital, the Deceased was determined as 'mick-type 1/2 of pneumoconiosis-type 1/2, merger certificate ca, and tbbb,’ and thereafter, he was killed on May 4, 2006.

C. The plaintiff is recognized as having caused the death of the deceased from the Korea Workers' Compensation and Welfare Service as having worked at the mining center of this case and having caused the pneumoconiosis, and received 54,403,640 won (a less than 10 won) as a lump sum survivors' compensation annuity for the entire lump sum survivors' compensation benefits under Article 43(2) and attached Table 2 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8694, Dec. 14, 2007; hereinafter the "former Industrial Accident Compensation Insurance Act"), and received the remainder as the survivors' compensation annuity every month.

D. On April 28, 2016, the Plaintiff filed a claim with the Defendant for payment of disaster compensation benefits under Article 39-3(1)4 of the former Coal Industry Act (amended by Act No. 4754, Mar. 24, 1994; hereinafter “former Coal Industry Act”), Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act (amended by Presidential Decree No. 14092, Dec. 31, 1993; hereinafter “former Enforcement Decree of the Coal Industry Act”), but the Defendant did not comply with the above claim.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence No. 1, and the fact-finding results of this court's fact-finding to the Labor Welfare Corporation, the purport of the whole pleadings

2. The plaintiff's assertion

The Deceased was diagnosed as pneumoconiosis (1/1) and recognized as an occupational accident before the mine closure in the instant mining center. At that time, the Industrial Accident Compensation Insurance Decree did not separately stipulate a physical disability grade for type 1 pneumoconiosis and did not receive a disability grade judgment, and even if the pneumoconiosis symptoms worse and repeated medical care due to aggravation of pneumoconiosis, the Deceased died on the ground of pneumoconiosis on May 4, 2006.

Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act provides that “A person whose disability grade is not determined as of the date of the closure of a mine regardless of the period of occurrence of a disaster” should be interpreted practically. Thus, if the deceased, like the deceased, did not separately define a physical disability grade for type 1 pneumoconiosis under the Industrial Accident Compensation Insurance Act at the time of the closure of a mine as at the time of the closure of a mine, and thus failed to undergo the disability grade determination, it shall be interpreted that the disability grade was not substantially determined without failure to comply with the formal criteria for determining the disability grade of the Korea Workers’ Compensation and Welfare Service. Therefore, the deceased constitutes “a person whose disability grade is not determined as of the date of the closure of a mine regardless of the period of occurrence of a disaster” under Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act. Accordingly, the

However, the amount of lump-sum survivors' compensation benefits equivalent to the lump-sum survivors' compensation benefits under the former Coal Industry Act is a right that arises after a retired worker dies and is generated by his bereaved family members, not a right that occurs to the retired worker who has already lost his capacity as a result of his death, and the Enforcement Decree of the former Coal Industry Act provides that the beneficiary of the lump-sum survivors' compensation benefits equivalent to the lump-sum survivors' compensation benefits under the former Coal Industry Act shall be the same person as the beneficiary of the survivors' benefits under the Industrial Accident Compensation Insurance Act. Therefore, the beneficiary of the above accident compensation benefits

Even though disaster consolation benefits equivalent to the lump-sum survivors' compensation benefits under the former Coal Industry Act and subordinate statutes are attributed to the deceased as a right to inheritance, since all the inheritors of the deceased transferred all the claims for payment of disaster consolation benefits to the plaintiff and notified the defendant, the plaintiff has the right to claim the whole amount of disaster consolation benefits equivalent to the lump-sum survivors' compensation benefits of this case (hereinafter "preliminary claim").

Therefore, as equivalent to the lump-sum survivors' compensation benefits, the defendant is obligated to pay 108,800,000 won and damages for delay claimed by the plaintiff to the plaintiff.

3. Determination

A. Relevant statutes

Article 39-3 (1) 4 of the former Coal Industry Act provides that when a coal mining business operator who meets the criteria as provided in Article 39-2 (1) has completed the registration of extinction of mining rights, etc., the coal industry rationalization business team shall pay the retired workers, coal mining business operators, etc. of the mine in question and other mine closure countermeasure expenses as prescribed by the Presidential Decree. Based on this provision, Article 41 (3) 5 of the former Enforcement Decree of the Coal Industry Act provides for the payment of disaster consolation benefits as one of the "other mine closure countermeasure expenses as prescribed by the Presidential Decree" and provides for the payment of disaster consolation benefits as one of the "other mine closure countermeasure expenses as prescribed by the Presidential Decree", and the application date for confirmation as provided in Article 42-2 (1) or the deliberation by the Coal Industry Deliberation Committee as provided in Article 39-3 (2) of the Act is closed after the date determined by the Committee, and the person whose disability grade has not been determined as of the date of closure or for whom the disability grade has not been determined as of the date of closure.

B. Whether the deceased was suffering from an occupational accident while on duty in the mining center of this case

1) Interpretation of relevant provisions

Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act provides that “A person whose disability grade is not determined as of the date of closure of a mine regardless of the period of occurrence of a disaster” as a person eligible for disaster compensation. In light of the contents, structure, purport, etc. of the relevant provisions, “Notwithstanding the period of occurrence of a disaster,” it is reasonable to interpret that “in the event of a mine closure after the date of application for confirmation under Article 42-2(1) or after deliberation by the Coal Industry Deliberation Committee under Article 39-3(2) of the Act, it shall be deemed that “a business accident occurs one year retroactively from the date determined by the Committee” is included in the case of a business accident after the date of closure of a

2) Determination on the timing for diagnosis of pneumoconiosis symptoms

As seen earlier, the Deceased was diagnosed as pneumoconiosis 1/1 type of pneumoconiosis as a result of the precise diagnosis of pneumoconiosis around October 1991, when he worked as coal part of performing dusty work at the mining center of this case.

Meanwhile, according to the statement No. 1 of the deceased’s evidence, the date of the injury or disease of the deceased is indicated as “the date of the injury or disease of October 5, 2005” in the insurance benefit register of the deceased. However, in full view of the purport of the arguments in the above evidence, the deceased’s health care card was stated to the effect that “the deceased was subject to intensive diagnosis from October 14, 1991 to October 19, 191, and as a result, determined as one type of pneumoconiosis No. 1 (1/1) on October 24, 1991,” and that “the date of the injury or disease” was indicated as “the date of the injury or disease” as “the date of the injury or disease” as “the date of the first injury or disease” as “the date of the first injury or disease of the deceased’s disease or disease,” and that it was stated as “the date of the first injury or disease diagnosis of the deceased’s injury or disease type No. 197, etc., at the time of the death or disease type No.197.

Furthermore, in view of the fact that there is no evidence to acknowledge that the Deceased had engaged in dusty work at any place of business other than dusty work as an coal source in the mining center of this case from December 4, 1990 until April 17, 191, when the Deceased caused pneumoconiosis, it is reasonable to deem that the pneumoconiosis generated to the Deceased around October 191 was caused while the Deceased worked in the mining center of this case.

3) The determination on whether the diagnosis of the type of pneumoconiosis-type one can be seen as an occurrence of an occupational accident under Article 41(3)5 of the Enforcement Decree of the former Coal Industry Act

In light of the characteristics of pneumoconiosis symptoms, the Industrial Accident Compensation Insurance Act and the Act on the Prevention of Pneumoconiosis and Protection, etc. of Pneumoconiosis Workers, and the amendment process of the Industrial Accident Compensation Insurance Act regarding disability grade standards, the Plaintiff asserts to the effect that, even in cases where only one type of pneumoconiosis was diagnosed as the deceased, the occurrence of occupational accidents as prescribed by Article 41(3)5 of the Enforcement Decree of the former Coal Industry Act should be recognized.

In light of the purpose and purport of the introduction of the system for countermeasures against mine closure which is a special subsidy, the Defendant cannot apply the interpretation of other Acts and subordinate statutes, such as the Industrial Accident Compensation Insurance Act. In light of the fact that the latter part of Article 41(3)5 of the Enforcement Decree of the Coal Industry Act only did not apply to the determination of disability grade as of the date of the closure of the mine, and that the disability grade can be determined, the type 1 of pneumoconiosis type which was not the subject of disability grade at the time of the closure of the mine cannot be included in occupational accidents as stipulated in the above provision, and it does not determine whether the requirements for payment of disaster compensation benefits are satisfied on the ground of the amended provisions of the Industrial Accident Compensation Insurance Act after several years have passed since the closure of the mine, rather than determining the requirements

In light of the following circumstances: (a) Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act provides that a person whose disability grade is not determined as of the date of the closing of a mine; (b) the payment of accident consolation benefits is to be made if the retired worker suffered from an occupational accident as of the date of the closing of a mine; but (c) if the disability grade is determined after the date of the closing of a mine, the payment of accident consolation benefits regardless of the time of the occurrence of the occupational accident is not possible; and (d) the above provision does not provide that the person whose disability grade can be determined as of the date of the closing of the mine (see, e.g., “occupational accident” and “the determination or non-determination of disability grade as of the date of the closing of a mine”; (d) the provision provides that “the person whose disability grade is determined as of the date of the closing of a mine accident is determined as of the date of the closing of a mine, and thus, the above provision provides that the person shall be determined as an injury or disease as of the date of the closing of the disease.”

4) Sub-committee

Ultimately, the deceased constitutes a person who was diagnosed with pneumoconiosis before the mine closure while working at the mining center of this case closed on September 18, 1993, and suffered occupational accidents. As such, the part of the requirements for payment of disaster consolation benefits under Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act, among the requirements for payment of disaster consolation benefits under Article 41(5) of the former Enforcement Decree of the Coal Industry Act, meets the requirements (see, e.g., Seoul High Court Decisions 2017Nu35600, Oct. 26, 2017; 2016Guhap5973, Sept. 7, 2017; 2016Guhap82904, Sept. 28, 2017; 2016Guhap7619, Feb. 2, 2018).

C. Whether the deceased constitutes “a person whose disability grade is not determined as of the date of closure”

1) It is reasonable to interpret that the type 1 of pneumoconiosis at the time of diagnosis as at the time of the closure of a mine was diagnosed as pneumoconiosis before the date of the Industrial Accident Compensation Insurance Act, and thus, the disability grade may not be determined for the same pneumoconiosis type 1 due to the amendment of the Industrial Accident Compensation Insurance Act after the date of the closure of the mine, as included in the “person whose disability grade has not been determined as at the date of the closure of a mine regardless of the period of occurrence of a disaster” under Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act (see, e.g., Supreme Court Decisions 2016Guhap82904, Sept. 28, 2017; 2016Guhap7619, Feb. 2, 2018).

위와 같은 경우는 퇴직근로자의 진폐 정도라는 사실관계의 변화가 없는데도 법령의 개정으로 규범적으로 장해등급에 새로 편입되는 것에 기인한다는 점에서, 폐광일 현재 진폐 정도 등 장해등급 판정의 기초가 되는 사실이 유동적이어서 장해등급의 판정이 늦어지게 되는 통상적인 경우와 다소 차이가 있는 사정이 있다고는 보인다. 그러나, ① 위 조항은 폐광일 현재 장해등급이 확정되지 아니한 사유를 한정하고 있지 아니하고 있는 점, ② 이에 폐광일 기준으로 진폐 정도가 별다른 변화를 보이지 않는 상황임에도 단순히 장해등급 판정 신청이 늦거나 장해등급 판정에 시일이 소요되어 지체되는 경우, 폐광일 기준으로 진폐 정도가 다소 유동적인 것으로 진단되어 그 진행 내지 악화 여부를 관찰하였으나 결과적으로 폐광일 기준의 진폐 정도에 그쳐 장해등급 판정을 받게 되는 경우 등도 위 조항의 적용범위에 포섭될 것으로 보이는데, 폐광일 기준의 상태와 장해등급 판정 당시의 상태가 동일하다는 사실관계의 구조 측면에서는 이 사건의 경우와 크게 다르지 않아 보이는 점, ③ 피고의 주장을 형식적으로 관철하면, 장해등급 기준은 설령 폐광일 현재 장해등급이 부여될 수 있는 경우에도 폐광일 현재 법령이 정한 장해등급만을 기준으로 하여야 하고 수시로 개정되는 실제 장해등급 판정 당시의 산업재해보상보험법 시행규칙의 규정은 참고하여서는 아니 된다고 보는 것이 논리적으로 일관될 터인데, 피고가 실제로 그와 같이 운영하고 있는지 의문인 점(피고의 주장과 같이 운영한다면, 장해등급 재판정 사건에서 피고로서는 재판정 당시의 법령을 적용하여 장해등급을 새로 부여하는 근로복지공단의 재판정 결과를 그대로 따라서는 아니 되고 항상 폐광일 현재 기준의 과거 법령에 의해서는 어떠한 장해등급에 해당하는지 따로 살펴야 할 것이다. 또한 산업재해보상보험법상 장해등급 기준에 진폐가 편입된 것은 1995. 4. 29. 노동부령 제97호로 전부 개정된 산업재해보상보험법 시행규칙 제57조 가 처음이므로 피고의 논리대로라면 진폐 진단일과 폐광일이 모두 1995년 이전인 사건들은 진폐의 정도에 관계 없이 모두 재해위로금 대상으로 취급하지 않거나 1995년 이후의 기준을 사용해서는 아니 될 것이다) 등을 종합하면, 위와 같은 사정이 앞서 본 해석을 뒤집기에는 부족하다고 판단된다.

2) According to such interpretation, the deceased is a person who was diagnosed with one pneumoconiosis type before September 18, 1993 when the mining center of this case was closed on or before September 18, 1993, and became able to receive a disability grade for the above type C only after the amendment of the Industrial Accident Compensation Insurance Order on July 1, 2003 after the date of the closure of the mine. As of the date of the closure of the mine, the deceased is a person whose disability grade for the pneumoconiosis type B was not determined as of the date of the closure of the mine. Since the deceased was able to be determined as a disability grade for the type B of pneumoconiosis due to the amendment of the Industrial Accident Compensation Insurance Act after the date of the closure of the mine, but died without a fixed disability grade without being determined as a disability grade due to the amendment of the Industrial Accident Compensation Insurance Act, it does not affect the conclusion that the disability grade was determined as "after the date of the closure of the mine," but Article 41 (3) 5 of the former Enforcement Decree of the Coal Industry Act does not affect the above conclusion.

3) Sub-decisions

Ultimately, since the deceased falls under “a person whose disability grade is not determined as of the closing date,” the deceased satisfies all the requirements for payment of disaster consolation benefits under Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act.

(d) Reversion of disaster consolation benefits and calculation of specific amount thereof;

1) Reversion of disaster consolation benefits

According to Article 39-3 (1) of the former Coal Industry Act, the provision that "the retired workers and coal mining agents, etc. of the mine concerned shall pay the mine closure countermeasure expenses prescribed in each of the following subparagraphs," Article 41 (3) 5 of the former Enforcement Decree of the Coal Industry Act stipulates that disaster compensation benefits shall be the same amount as the lump-sum disability compensation or lump-sum survivors' compensation benefits paid by the retired workers under the Industrial Accident Compensation Insurance Act, and in this case, disaster compensation benefits shall be the same as the lump-sum survivors' compensation or lump-sum survivors' compensation benefits under the Industrial Accident Compensation Insurance Act paid by the retired workers, and the Coal Industry Act and the Industrial Accident Compensation Insurance Act are different from the legislative intent and contents of the legislation and do not apply mutatis mutandis to the beneficiaries of the Industrial Accident Compensation Insurance Act, it is reasonable to deem that disaster compensation benefits equivalent to the lump-sum disability compensation benefits or lump-sum survivors' compensation benefits have been reverted to the retired workers

Therefore, the accident compensation benefits equivalent to the lump-sum survivors' compensation benefits of this case were reverted to the deceased, and are inherited to Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5, the spouse of the deceased, according to their respective shares of inheritance. Accordingly, the plaintiff's primary assertion against this issue is without merit, and the defendant's duty to pay disaster compensation benefits to the plaintiff according to the plaintiff's conjunctive assertion corresponding thereto is determined.

2) Determination of a specific amount

Accordingly, if the Defendant calculated the amount of disaster compensation benefits to be paid by the deceased to his heir, 29,674,717 won for the Plaintiff (i.e., KRW 108,807,296 equivalent to the lump-sum survivors' compensation benefits x KRW 3/11 of the Plaintiff's share of inheritance, and less than KRW 19,783,144 for the remaining inheritors, respectively (i.e., the above KRW 108,807,296 x KRW 2/11 of the share of inheritance for the remaining inheritors).

E. Determination as to whether the plaintiff's acquisition of bonds and the expiration of the statute of limitations

The Plaintiff asserts that, as Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5, who are his children, transferred all the claims for payment of disaster compensation benefits equivalent to the lump-sum survivors’ compensation benefits of this case to the Plaintiff, and notified the Defendant, the Plaintiff had the right to claim the full amount of the above disaster compensation benefits. Accordingly, the Defendant asserts that each of the above claims of Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 was over ten years from the date on which the lump-sum survivors’ compensation benefits are determined against the Deceased, and that the above claims

In full view of the purport of the argument as a whole, Nonparty 2, 3, 4, and 5’s entire claim for payment of disaster compensation benefits equivalent to the lump-sum survivors’ compensation benefits of this case to the deceased, and Nonparty 2, 3, 4, and 5’s attorney delegated with the authority to notify the above assignment of claims to the Defendant on November 13, 2017, which included the contents of the notification of the above assignment of claims to the Defendant on November 13, 2017, and received the Defendant around that time. However, on the premise that the Plaintiff initially filed the lawsuit of this case on October 26, 2016, on the premise that the Plaintiff had the entire claim for payment of disaster compensation benefits equivalent to the lump-sum survivors’ compensation benefits of this case as the beneficiaries of the lump-sum survivors’ compensation benefits of this case, the Defendant asserted that there was no right to claim against the deceased’s children among the claim for payment of disaster compensation benefits equivalent to the lump-sum survivors’ compensation benefits of this case, and that he additionally received the claim from Nonparty 2, 3, 4, and 5.

However, the period of prescription of the claim for payment of disaster compensation benefits equivalent to the lump-sum survivors' compensation benefits of this case shall be 10 years, as in general claims under Article 162(1) of the Civil Act (see Supreme Court Decision 2002Du4426, Mar. 14, 2003); and it shall be deemed that the period of prescription of each of the above claims of the non-party 2, non-party 3, non-party 4, and non-party 5 appears to be the date of the deceased's death or the date of determination of the lump-sum survivors' compensation benefits, regardless of either party or any other party, the plaintiff transferred the above claims of the non-party 2, non-party 3, non-party 4, and non-party 5, which included the contents that the plaintiff added the claim for the above claim for the assignment of the above claims to the court of this case as a preliminary claim, it is apparent that it was 10 years prior to the expiration of the prescription (see Supreme Court Decision 2008Da42098, Feb. 209).

Therefore, the plaintiff's above assertion against this is without merit, and the plaintiff has only his share of inheritance and only has the right to claim payment to the defendant.

F. Centrality

Ultimately, the Defendant is obligated to pay to the Plaintiff the amount of KRW 29,674,717, which is the inheritance portion of the Plaintiff’s share among the same amount as the lump-sum survivors’ compensation benefits to be paid to the deceased, who is a retired worker of the mining establishment of this case, as prescribed by Article 39-3(1)4 of the former Coal Industry Act and Article 41(3)5 of the former Enforcement Decree of the Coal Industry Act, and to pay damages for delay calculated at the rate of 5% per annum as prescribed by the Civil Act from November 2, 2016 to March 22, 2018, the day following the delivery of a copy of the complaint of this case, which is the day of this decision, and 15% per annum as prescribed by the Act on Special Cases concerning the Promotion, etc

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judge Yu Jin-jin (Presiding Judge) Lee Dong-dong (Presiding Judge)