In case where the period of a request for reexamination under the former Act remains at the time of the enforcement of the Industrial Accident Compensation Insurance Act, which was amended from 60 days to 90 days, whether the period of the request for reexamination should be calculated in accordance with the amended Act (affirmative)

As the former Industrial Accident Compensation Insurance Act (amended by Act No. 5398 of Aug. 28, 1997) was amended by Act No. 5398 of Aug. 28, 1997, the period of the request for reexamination has been extended from 60 days to 90 days. However, the amended Act only takes effect from Jan. 1, 1998 under Paragraph (1) of the Addenda and does not have any transitional provisions against those who want to make a request for reexamination knowing that the decision on the request for reexamination was made before the enforcement of the new Act. If the period of the request for reexamination under the former Act has already been expired before the enforcement of the new Act, the new Act shall apply to the period of the request for reexamination if the period of the request for reexamination under the former Act remains before the enforcement of the new Act. Thus, it shall be deemed that the request for reexamination can be filed within 90 days after the decision on the request for reexamination, which is the period of the request for reexamination under Article 90(3) of the new Act, to expand the scope and period of the request for reexamination.

Article 90(3) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 5398 of Aug. 28, 1997); Article 90(3) of the Industrial Accident Compensation Insurance Act; Addenda (amended by Act No. 5398 of Aug. 28, 1997); Article 18(1) of the former Administrative Litigation Act (amended by Act No. 4770 of Jul. 27, 1994)

Plaintiff

Korea Labor Welfare Corporation

Seoul High Court Decision 97Gu47271 delivered on December 10, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, as the Industrial Accident Compensation Insurance Act was amended by Act No. 5398 of Aug. 28, 1997, and the period of a request for reexamination under Article 90 (3) of the same Act has been extended from 60 days to 90 days. However, as long as the amendment Act enters into force on Jan. 1, 1998 pursuant to paragraph (1) of the Addenda, a request for reexamination of the decision on the request for reexamination of this case must be made within 60 days from the date the decision was known under the former Industrial Accident Compensation Insurance Act. Although the plaintiff knew of the decision on the request for reexamination of this case on Dec. 10, 1997, the request for reexamination of this case which was filed by the plaintiff on March 9, 199, was filed with the statutory period of 60 days, and thus, it is improper to determine that the request for reexamination of this case was unlawful as it did not apply to the plaintiff's request for reexamination of this case under Article 97 of the Administrative Litigation Act.

However, we cannot agree with the above judgment of the court below.

As the court below decided, the period of a request for review has been extended from 60 days to 90 days before the amendment of the Industrial Accident Compensation Insurance Act, but the amended Act only entered into force on January 1, 1998 under Paragraph (1) of the Addenda thereto and does not have any transitional provisions against those who want to request review with the knowledge that the decision on the request for review was made before its enforcement.

In a case where no transitional provision is established, if the period of the request for reexamination under the former Act has already been expired before the enforcement of the new Act, even after sunset, if the period of the request for reexamination under the former Act remains at the time of the enforcement of the new Act, the new Act shall be applied in accordance with the principle of the first priority as to the period of the request for reexamination. Therefore, within 90 days from the date when the decision on the request for reexamination, which is the period of the request for reexamination as provided by Article 90(3) of the new Act, can be filed within 90 days from the date when the decision on the request for reexamination, which is the period of the request for reexamination, is known, and thus,

In this case, the plaintiff filed a request for reexamination within 90 days after the decision on the request for reexamination was known to the court below, but the court below rejected the lawsuit in this case without making a decision on the ground that the plaintiff's request for reexamination was illegal with the lapse of the period. This decision of the court below is erroneous in the misunderstanding of the legal principles of Article 90 (3) of the Industrial Accident Compensation Insurance Act before and after the amendment, and it is obvious that its illegality affected the judgment. Thus, the plaintiff's appeal pointing this out has merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)