Case non-life insurance Co., Ltd. (Attorneys Noh Tae-tae et al., Counsel for the defendant-appellant)

Korea Labor Welfare Corporation

April 21, 2016

1. The defendant shall pay to the plaintiff 14,454,00 won with 5% interest per annum from July 4, 2014 to July 21, 2016, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 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 73,62,074 won with 20% interest per annum from July 4, 2014 to the day of complete payment.

1. Basic facts

(a) Status of parties;

1) The Plaintiff is an insurer who entered into an insurance contract for guaranteeing domestic workers’ disaster (securities number omitted, insurance period: January 11, 201 to January 11, 2012; hereinafter “instant insurance contract”) with ○○○○○○○○ Company (hereinafter “Nonindicted Company”) that is a corporation operating the mechanical equipment construction business, etc., and Nonparty 1 is an employee of the Nonparty Company.

2) The Defendant is a corporation established pursuant to the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Insurance Act”) and that performs industrial accident compensation projects entrusted by the Minister of Employment and Labor.

(b) The occurrence of a fall accident;

1) Around 14:00 on June 24, 201, Nonparty 1: (a) laid down pipelines at the port construction site of the Dong Special River Corporation located in the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area at the port area of the Dong Special River Corporation; (b) the pipe material that was able to flow up

2) Nonparty 1 received medical treatment from June 24, 201, which was the date of the instant accident, to December 31 of the same year.

3) From June 24, 201 to July 21, 2015, Nonparty 1 received temporary layoff benefits from the Defendant, respectively, KRW 19,418,00, and KRW 3,711,473, respectively. However, Nonparty 1 did not claim disability benefits to the Defendant according to Nonparty 2 (D medical specialists in △△△△△ Hospital)’s opinion that Nonparty 1’s spin pressure rate is weak due to the instant accident.

C. The Plaintiff’s payment of insurance proceeds

1) On December 15, 2011, Nonparty 1 filed a lawsuit against Nonparty 1 at the Daegu District Court Branch Branch of the Daegu District Court seeking the payment of damages amounting to KRW 112,95,679 due to the instant accident (hereinafter “relevant civil lawsuit”).

2) Nonparty 1 filed an application for physical examination in the relevant civil litigation, and the said court adopted it, and entrusted Nonparty 1 with Nonparty 1’s physical examination. On June 27, 2012, the head of the Daegu Tol University Hospital, who received physical examination from the said court, submitted to this court a written physical examination stating that “The spin pressure rate of Nonparty 1 is approximately 20% as a result of physical examination with respect to Nonparty 1, and the loss rate of labor ability is 17% (or permanent disability)” (the sixth date of the instant case, the spin pressure rate of Nonparty 1 was adjusted to have no dispute over the fact that the spin pressure rate of Nonparty 1 is 17% as a result of physical examination with respect to Nonparty 1).

3) In addition, the above court made a fact-finding inquiry to the △△△ Hospital that Nonparty 1 had received treatment after the instant accident, and Nonparty 2, the principal doctor of Nonparty 1, submitted a fact-finding inquiry reply to the above court on December 23, 2012, stating that the pressure rate of Nonparty 1’s (vertebrate) is weak, and thus, it is deemed that there is no disability check.

4) On October 29, 2013, the above court rendered a judgment that “the company outside the lawsuit shall pay to the Plaintiff 58,788,136 won and the amount of damages calculated by applying the rate of 55% per annum from June 24, 2011 to October 29, 2013 and 20% per annum from the next day to the date of full payment” (Seoul District Court Branch Court Decision 2011GaGa14976).

1. Table 1. The aggregate of lost income: 84,646,894 won: 50,788,136 won: 8,000 won: 58,788,136 won: 58,788,136 won (=property damage + 50,788,136 won + 8,000 won)

5) The Nonparty Company appealed, but was dismissed on June 25, 2014 (Seoul District Court 2013Na20425), and around that time, the judgment of the first instance court became final and conclusive.

6) Meanwhile, during the appellate trial of the instant case, the non-party company filed an application with the Daegu District Court for a notice of lawsuit against the defendant, and served the defendant a notice of lawsuit on May 19, 2014.

7) On July 3, 2014, the Plaintiff paid the total sum of KRW 73,622,074 according to the instant judgment that became final and conclusive to Nonparty 1.

[Reasons for Recognition] The facts without dispute, Gap's statements in Gap's 1 to 4, Eul's statements in Eul's 1 and 2 (including branch numbers), the purport of the whole pleadings

2. The assertion and judgment

(a) Occurrence of the right of indemnity;

1) Determination as to the cause of claim

According to Article 89 of the Industrial Accident Insurance Act, in cases where an insured has paid in advance money or goods equivalent to insurance benefits to an insured person for the same reason as the reason for the payment of insurance benefits under this Act in relation to an occupational accident of his/her employee, and where it is deemed that such money or goods have been paid as a substitute for the insurance benefits, the insured is subrogated to the right to receive the insurance benefits of the relevant beneficiary, as prescribed by Presidential Decree. The insurance benefits under the Industrial Accident Insurance Act do not have the nature of liability insurance for civil damage liability which the employer would bear due to an occupational accident. However, it is deemed that the employer has the nature of liability insurance with regard to the accident compensation under the Labor Standards Act, and performs the function overlapping with that of civil damage in terms of loss transfer, it is reasonable to view that the insured performs the function of compensating the damage arising from the civil damage liability within the overlapping scope. Thus, in cases where the insured is already liable for civil damage in advance to the beneficiary and such damage has been paid as a substitute for the insurance benefits, the insured may subrogate the right to receive the insurance benefits within the amount equivalent to the insurance benefits (see Supreme Court Decision 262626Du.

In addition, according to Article 87(2) of the Industrial Accident Insurance Act, the Defendant is exempted from the obligation to pay the insurance benefits to workers to the extent that “the beneficiary is entitled to receive damages equivalent to the insurance benefits under this Act due to the same cause from a third party pursuant to the Civil Act and other Acts and subordinate statutes, and fails to pay the amount of such damages within the extent converted by the method prescribed by Presidential Decree.” In light of the purport of the Industrial Accident Insurance Act, the part corresponding to the insurance benefits for the damages caused by the worker’s occupational accident should be ultimately liable between the Defendant and the employer. Therefore, it is reasonable to view that the employer who provided a civil compensation for damages in advance to the worker is entitled to claim the money that the Defendant paid to the employee within the extent of the insurance benefits that the Defendant

On the other hand, this case is examined as follows. The non-party company is an industrial accident insurance policyholder under the Industrial Accident Insurance Act and the non-party 1's employer. The plaintiff is the insurer of the non-party company. The plaintiff paid insurance money equivalent to 73,622,074 won to the non-party 1 as the insurer of the non-party company according to the judgment of this case which became final and conclusive in the lawsuit (related civil lawsuit) claiming damages against the non-party company. This case constitutes a case where the defendant paid the corresponding money in advance to the non-party 1 in lieu of disability benefits to be paid to the non-party 1 in accordance with the provisions of the Industrial Accident Insurance Act. Thus, pursuant to Article 481 of the Civil Act, Article 89 of the Industrial Accident Insurance Act and Article 89 of the Industrial Accident Insurance Act, the plaintiff can seek a payment by subrogation against the non-party company and the non-party 1 as an exercise of the right to indemnity against the defendant (the plaintiff, the insurer of the non-party company, constitutes a person who has legitimate interest under Article 481 of the Civil Act.

2) Judgment on the defendant's defense, etc.

A) Claim that the subrogation of a right under Article 89 of the Industrial Accident Insurance Act is not possible

Since Article 88(2) of the Industrial Accident Insurance Act provides that "the right to receive insurance benefits shall not be transferred, seized, or offered as security", the defendant asserts that the right pursuant to Article 89 of the same Act cannot be subrogated in accordance with the purport of the above provision, so the above Article 88(2) of the Industrial Accident Insurance Act provides that the beneficiary may be directly paid the insurance benefits for treatment, guarantee of livelihood stability, etc. of the beneficiary who is subject to industrial accidents. In this case, since the beneficiary was already paid the amount equivalent to the insurance benefits from the plaintiff on behalf of the plaintiff, it does not go against the purport of Article 88(2) of the same Act that the plaintiff transferred, seized, or offered as security, the right to receive the above insurance benefits in subrogation of the non-party company, which is an exception to Article 88(2) of the same Act, and Article 89 of the same Act provides that the plaintiff is entitled to receive the insurance benefits in subrogation of the non-party company, as prescribed by the Presidential Decree, for the same reason as the ground for payment of the insurance benefits in question.

B) The Plaintiff’s non-performance of subrogation as to the part exceeding the scope of guarantee 1)

The defendant argues that "the plaintiff should compensate for excess amount only when the amount of compensation under the terms and conditions exceeds the amount of mandatory insurance to be covered by the mandatory insurance (Article 12 (1) of the Terms and Conditions)." Thus, the plaintiff should have paid only the insurance amount excluding the portion that can be covered by mandatory insurance out of the amount recognized in the judgment of this case. Therefore, as to the amount that the non-party 1 could have been paid as disability benefits from the defendant, the non-party 1 could not be subrogated to the non-party company. As seen above, it cannot be determined whether the non-party 1 could not receive disability benefits from the defendant until the judgment of this case became final and conclusive, and the non-party 1 could not receive disability benefits from the defendant (i.e., the plaintiff did not have received disability benefits from the non-party 1 until the plaintiff paid the insurance amount to the non-party 1). Therefore, it is reasonable to view that the plaintiff, the insurer of the non-party company, as the insurer of this case, had a legitimate interest in paying the whole amount of compensation from the defendant 1.

C) Extinctive prescription defense

Since the Defendant had been able to claim disability benefits to the Defendant from December 31, 201, when Nonparty 1 finally terminated medical care, the Defendant asserted that the Defendant’s entitlement to disability benefits to Nonparty 1’s Defendant had become extinctive prescription pursuant to Article 112(1)1 of the Industrial Accident Insurance Act, since the instant lawsuit was filed on June 11, 2015, three years thereafter.

On the other hand, the running of the extinctive prescription period is not an obstacle to the running of the extinctive prescription period even if the pertinent claim occurred from the time when the pertinent claim was established, and in principle, was unaware of the existence or the occurrence of a right. However, the extinctive prescription period shall not run immediately from the time when the claim is established, in a situation where it is objectively difficult for the claimant to ascertain the existence of a right and where the claimant was unaware of it without negligence, deeming that the extinctive prescription run immediately from the time when the claim is established, not only does it conform to justice and equity, but also cannot be deemed to conform to the reason for the existence of the extinctive prescription system. In such a case, the extinctive prescription period shall run from the time when the claim becomes objectively known (see Supreme Court

Based on the above legal principles, in this case, the non-party 1 received diagnosis that there is no disability opinion from his own doctor (in the relevant civil procedure, even if the court asked the non-party 2, the non-party 2 again expressed that the non-party 1 would not remain a disability due to the accident in this case), and it is difficult to view that the non-party 1's right to receive disability benefits was not due to the non-party 1's negligence, and it is difficult to view the non-party 1's right to receive disability benefits as being entitled to receive disability benefits, not from the date of the completion of medical care which seems to have been objectively known that the non-party 1 could receive disability benefits due to the non-party 1's fixed disability, but from the date of the objective awareness that the non-party 1 would be entitled to receive disability benefits, it is difficult to claim that the extinctive prescription period should be calculated from the date of the completion of medical care for the non-party 1's right to receive disability benefits. However, in light of the above legal principles as seen in [Attachment 6] and annexed Table 5] of the Enforcement Decree of the Industrial Accident Insurance Act.

However, according to Article 112(1)4 of the Industrial Accident Insurance Act, the three-year extinctive prescription is applied to the right to receive insurance benefits under Article 36(1) of the same Act, and the three-year prescription is applied to Nonparty 1, who received a physical appraisal from the head of the Daegu-Tol University Hospital Hospital to the effect that “the occurrence of a disability equivalent to about 20% of the vertebrate pressure rate has occurred to Nonparty 1” in the relevant civil procedure and received a physical appraisal from the head of the Daegu-tol University Hospital to the effect that he/she became aware of an objective right to receive disability benefits after June 27, 2012, and thus, he/she could claim disability benefits to the Defendant. Thus, the date the above physical appraisal was submitted shall be the initial date of the extinctive prescription. Since the Plaintiff subrogated to Nonparty 1 and Nonparty 1, on June 27, 2015, before the expiration of three years from June 11, 2015, the record of the extinctive prescription defense by the Defendant was clearly justified.

B. Scope of indemnity

According to Article 89 of the Industrial Accident Insurance Act, in the event that a policyholder pays in advance money or goods equivalent to insurance benefits pursuant to the Civil Act or other statutes for the same reason as the reason for the payment of insurance benefits under this Act in relation to an occupational accident of his/her employee, and such money or goods are deemed to have been paid as a substitute for the insurance benefits, the policyholder is entitled to receive the insurance benefits of his/her beneficiary, as prescribed by Presidential Decree. Thus, the scope of the insurance benefits to be subrogated by the Plaintiff is limited to the scope of disability benefits that Nonparty 1 could have received from the Defendant out of the insurance benefits that the Plaintiff paid to Nonparty 1 (the Nonparty 1 was paid by the Defendant, and only claimed compensation amount equivalent to temporary disability compensation benefits and medical care benefits

However, according to the fact that the pressure rate of Nonparty 1’s spine due to the instant accident is 17%, there is no dispute between the parties, and according to the evidence No. 3, the average wage at the time Nonparty 1 was 146,000 won per day when Nonparty 1 was able to receive disability benefits. According to the above findings, according to the above facts, Nonparty 1 is entitled to receive disability benefits under Article 57(2) of the Industrial Accident Insurance Act and Article 53(1) [Attachment Table 6] 13 of the Enforcement Decree of the same Act, Article 48 [Attachment Table 5] of the Enforcement Rule of the same Act, and Article 48 [Attachment Table 5] of the Enforcement Rule of the Industrial Accident Insurance Act. Accordingly, Nonparty 1 is entitled to receive disability benefits under Article 57(2) [Attachment Table 2] of the Industrial Accident Insurance Act, so it is reasonable to deem that the Plaintiff can be subrogated to Nonparty 1 within the scope of 14,000 won as to the above Defendant 4 and Nonparty 150.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff the above 14,454,00 won and damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from July 4, 2014 to July 21, 2016, which is the day following the day on which the defendant is exempted from the defendant's obligation to pay disability benefits by paying insurance proceeds to the non-party 1. The defendant is obligated to pay damages for delay calculated at the rate of 15% per annum prescribed by the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment [the plaintiff shall be deemed to have exceeded the statutory interest rate of Article 3 (1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from July 4, 2014, the main sentence of Article 3 (1) of the former Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (wholly amended by Presidential Decree No. 2653, Sep. 25, 2015). 205.

3. Conclusion

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

Judges Kim Yong-Hy

(1) (As seen earlier, there is no need to determine whether subrogation is recognized by the insurer under the Commercial Act). The determination is based on the assertion that subrogation is not possible under the Civil Act, not by subrogation of the insurer under the Commercial Act.