(a) The case holding that the average wage, which is the basis for industrial accident compensation insurance benefits, cannot be calculated as provided in Article 19 of the Labor Standards Act and Articles 2 through 4 of the Enforcement Decree of the same Act, for a contractor who has entered into the so-called “lurged contract”;

B. Method of calculating average wages in the case of paragraph (a) above

C. In the case of paragraph (a) above, the determination of whether the court below's measure is appropriate that calculated the average wage on the basis of the wage level in the report on the survey of the occupational wage status immediately without examining the ordinary living wage and the average wage amount of the ordinary workers engaged in the same kind of work

(a) The case holding that the average wage, which is the basis for industrial accident compensation insurance benefits, cannot be calculated as provided in Article 19 of the Labor Standards Act and Articles 2 through 4 of the Enforcement Decree of the same Act, for a contractor who has entered into the so-called “lurged contract”;

B. In the case of Article 5 of the Enforcement Decree of the Labor Standards Act or the proviso of Article 3(2) of the Industrial Accident Compensation Insurance Act, since the above "A" has not been enforced until the date of determination or public notice by the Minister of Labor, there is no way to calculate the average wage on this premise. However, the average wage is a standard for calculating various types of benefits under the Labor Standards Act, such as retirement allowances for workers, and the purpose of the related provisions of the Labor Standards Act concerning the above allowances is to guarantee workers' livelihood. Thus, the average wage as a basis for the calculation thereof is the basic principle of the calculation of the ordinary living wage of workers. The average wage as a basis for the calculation thereof is the true calculation of all kinds of insurance benefits under the Industrial Accident Compensation Insurance Act. In this case, it should be interpreted equally as the average wage of ordinary workers, which is engaged in the same kind of work, depending on the area where the worker is working.

C. The annual report of the survey on the actual wages by job type issued by the Minister of Labor is conducted with the purpose of providing the basic data for the improvement of all the economic policies and the company's wage system by investigating and grasping the matters concerning the working conditions, such as workers' wages and working hours, according to the type of occupation and industry, and it is merely a general data on the actual wage status, and it cannot be considered as the basis for the calculation of the average wage but can not be considered as the reference or supplementary data for determining the average wage. In the case of the above "A", the court below committed an error in the misapprehension of legal principles as to the average wage or incomplete deliberation without examining the ordinary daily wage and the average wage of ordinary workers engaged in the same kind of work, etc.

Article 3(2) of the Industrial Accident Compensation Insurance Act, Article 19 of the Labor Standards Act, Article 5 of the Enforcement Decree of the same Act

Stick Stacks

The head of permanent local labor office

Daegu High Court Decision 88Gu668 delivered on February 21, 1990

After destroying the original judgment, the case shall be remanded to the Daegu High Court.

As to the Grounds of Appeal

The court below concluded the so-called "surging contract" with the non-party 2,100 won of the contract amount on October 4, 1986 between the non-party 1, the non-party 2, and the non-party 2,100 won of the contract amount for the above construction work and the non-party 1,200 won of the contract amount for the above construction work. The plaintiff is not entitled to receive additional compensation benefits from the average wage of the non-party 1,2,00 won of the contract amount as well as the daily average wage of the non-party 1,00 won of the contract amount for the above construction work. The plaintiff is not entitled to receive additional compensation benefits from the non-party 5,00 won of the contract amount due to the non-party 1,00 won of the above construction work. The plaintiff is not entitled to receive additional compensation benefits from the company's average wage of the non-party 1,25,000 won of the contract amount for the above construction work, based on the difference between the plaintiff's average wage and the above construction work amount.

Article 5 of the Enforcement Decree of the Labor Standards Act provides that, in cases where it is impossible to calculate average wages under Article 19 of the same Act and Articles 2 through 4 of the same Decree, the amount shall be determined by the Minister of Labor. The proviso of Article 3 (2) of the Industrial Accident Compensation Insurance Act provides that, in cases where it is deemed difficult to determine the amount of wages or average wages under the Labor Standards Act, the amount determined and publicly notified separately by the Minister of Labor shall be the relevant amount of wages or average wages. Thus, since the above provisions have not been enforced until the date of the determination or public notice of the Minister of Labor, there is no way to calculate the Plaintiff’s average wages on this premise, the average wages shall not be so long as there are various kinds of allowances for workers, namely, retirement allowances (Article 28 of the Labor Standards Act), business suspension allowances (Article 38 of the same Act), annual paid leave allowances (Article 79 of the same Act), compensation (Article 80 of the same Act), and the amount of average wages by workers engaged in the same kind of work, it shall be interpreted as the same basic principle of the Labor Standards Act.

The court below determined that it is reasonable to calculate the plaintiff's average wage based on the wage level of the job-based wage survey report issued by the Minister of Labor to determine the most objective and accurate data on the actual wage condition of Korea. However, the above job-based wage survey report is conducted for the purpose of providing basic data for the improvement of all economic policies and the company's wage system by investigating and grasping the matters of working conditions, such as workers' wage and working hours, according to the type of occupation and industry, and it is merely a general material concerning the actual wage condition, and thus it cannot be considered as the basis for calculating the plaintiff's average wage. If we affirm this, it can not be considered as the basis for calculating the plaintiff's average wage. If we affirm this, the decision or notice of the Minister of Labor under Article 5 of the Labor Standards Act or the proviso of Article 3 (2) of the Industrial Accident Compensation Insurance Act is replaced by the above job

Therefore, the court below should have determined the amount of the plaintiff's average wage by examining the amount of the plaintiff's average wage of ordinary workers engaged in the same kind of work as the plaintiff at the work site centering on the work site, and should have determined whether the defendant's disposition is legitimate, even though the court below should have determined the amount of the plaintiff's average wage by examining the amount of the plaintiff's average wage even though the method of calculating the plaintiff's ordinary living wage is not stipulated in the Labor Standards Act and the Enforcement Decree of the same Act, but should have determined whether the plaintiff's average wage should be calculated based on the level of wage in the report on the status quo of wage by job issued by the Ministry

Therefore, the original judgment shall be reversed and remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Young-young (Presiding Justice)