2011Guhap4147 Revocation of revocation of partial payment of survivors' benefits, etc.

1. ○○○;

2. OO;

3. OO;

Plaintiff 2 and 3 are minors, so the legal representative parent ○○○○

4.

5. OO;

Since a minor is his legal representative ○○○

Plaintiffs Address DaeguOOO

[Plaintiff-Appellant] Plaintiff ○○○

Attorney 000

National Federation of Fisheries Cooperatives

Seoul Songpa-dong 11-6

Representative ○○○○

Attorney ○-○, et al.

May 9, 2012

June 1, 2012

1. The disposition that the Defendant rendered against the Plaintiffs on August 17, 2011, such as bereaved family benefits, funeral expenses, and part of the site pay of missing benefits, shall be revoked.

2. The plaintiffs' remaining claims are dismissed.

3. 1/5 of the costs of lawsuit is assessed against the plaintiffs, and the remainder is assessed against the defendant.

The disposition mentioned in paragraph (1) of the Disposition (the date of the disposition written in the complaint is a clerical error) and the defendant's payment of the site for lost belongings to the plaintiffs on August 19, 2011 shall be revoked respectively.

1. Details of the disposition;

A. Non-Party 1 and Non-Party 2 are fishers of No. 108, a fishing vessel of 20 tons or more in Korea with Vietnam’s nationality, and on June 1, 2010, they were missing due to an accident on which the above fishing vessel is sunken, and died. Plaintiff 00 is the wife of the deceased Non-Party 1, Plaintiff 00, and Plaintiff 00 are children of the deceased Non-Party 1. Plaintiff 00 is the wife of the deceased Non-Party 2, and ○○○○ is the children of Non-Party 2.

In accordance with Article 9 of the Act on Accident Compensation Insurance for Seafarers and Fishing Vessels (hereinafter referred to as the "Act on Accident Compensation for Seafarers") as an organization of shipowners, the defendant is an institution which is entrusted by the Minister for Food, Agriculture, Forestry and Fisheries with the affairs related to insurance business under the above Act, such as determination and payment of accident compensation insurance for seafarers

B. According to the collective agreement between the Defendant and the Federation of the Korea Marine Industry and Trade Union (amended by June 12, 2009; hereinafter referred to as the “instant collective agreement”), the agreement is the only collective agreement with respect to foreign seafarers on board a fishing vessel with at least 20 tons of coastal fishing vessels (Article 1(1)), and the employer, when entering into an employment contract with a foreign seafarer, shall not set the standards of the above agreement. The subordinate employment contract is in accordance with the above agreement (Article 2(2)), the ordinary wage of a foreign seafarer is KRW 80,000 per month (Article 3’s wage table), and the average wage is not otherwise stipulated. The Plaintiffs claimed against the Defendant for the amount of loss benefits of possession of the deceased’s ordinary wage in the year 2010 as well as the minimum wage of the deceased’s ordinary wage in the year 2010 as publicly notified by the Minister of Land, Transport and Maritime Affairs (Article 1(1)).

D. On August 17, 201, the Defendant recognized the Plaintiffs’ ordinary wages and the average boarding wage of the deceased as KRW 800,00 per month, respectively, and on the basis of this, paid 34,665,80 won for survivors’ benefits (=26,666 won per day ordinary wage x 1,300 days), funeral expenses 3,199,920 won (= 26,666 won per day ordinary wage x 120 days) for non-party 3,20,00 won for missing benefits x 80,00 won for each month + 2,40,000 won for funeral benefits x 3,00 won for non-party 1’s bereaved family benefits x 30,000 won for non-party 1’s bereaved family benefits x 300,000 won for non-party 20,000 funeral expenses for non-party 1’s bereaved family benefits.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 2-3, Eul evidence 4 and 5, the purport of the whole pleadings

2. The grounds for illegality of the instant disposition asserted by the Plaintiffs are as follows.

A. Of the former Minimum Wage Publication made by the Minister of Land, Transport and Maritime Affairs pursuant to Article 54 of the Seafarers Act, the part that the determination authority of the minimum wage may be determined by a collective agreement between the relevant seafarer labor organization and the shipowner’s organization is in violation of the mother Act by re-electioning the determination authority of the minimum wage to the seafarer labor organization and the shipowner’s organization. Article 6(2) and the latter part of Article 11(1) of the Constitution of the Republic of Korea, Article 2 of the Act on the Employment, etc. of Foreign Workers

In addition, the amount of KRW 1,343,00 per month of the minimum amount of a national’s ordinary wage and average on-board wages of KRW 2,148,00 per month shall be calculated by applying the deceased’s bereaved family’s benefits, funeral expenses, and missing benefits. (b) The Defendant shall, pursuant to Article 30 of the Act on Accident Insurance for Fishing Seafarers, recognize two months of ordinary wage as the value of lost goods and pay the amount of lost goods.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Determination as to the plaintiffs 2. A

(1) Under Article 2 (1) 2 and 5 of the Disaster Insurance for Seafarers, "fishing vessel crew members" refers to persons employed to provide their labor on a fishing vessel for the purpose of receiving wages, "wages", "ordinary wages", and "average wages on board" mean each wage, ordinary wages, and average wages on board under the Seafarers' Act, and under Article 3 (7), 8, and 8-2 of the former Seafarers' Act (amended by Act No. 11024, Aug. 4, 201; hereinafter "former Seafarers' Act"), "wages" refer to the total amount of wages, salaries, and any other name the shipowner pays to seafarers for their labor, and "ordinary wages" refers to the amount of hourly wages, daily wages, weekly wages, monthly wages, or average wages on board under the Seafarers' Act, and under Article 3 (1) 4 of the former Seafarers' Act (amended by Act No. 11024, Aug. 4, 201; hereinafter referred to as the "former Seafarers' Act"), the total amount of wages on board shall be determined and announced 5 months.

Pursuant to Article 54 of the Seafarers Act, the minimum wage that the shipowner shall pay to the seafarer from January 1, 2010 to December 31, 2010 shall be publicly notified as follows:

1. Persons subject to application: "seafarers" under subparagraph 1 of Article 3 of the Seafarers Act;

2. Minimum wage amount and applicable method;

(a) General matters;

(a) Minimum wage for seafarers: 1,098,000 won per month;

2. Minimum amount of ordinary wages applied when compensating for losses for seafarers: Average boarding wages applied when compensating for losses for seafarers of a fishing vessel: 2,148,000 won per month;

(b) Notwithstanding the provisions of “A”, in the case of the following, the method of applying the minimum wage may vary, and the workplace and the relevant organization shall submit the relevant documentary evidence to the Maritime Affairs and Port Authorities for its recognition:

3) In the case of foreign seafarers, the minimum wage can be determined by a collective agreement between the relevant seafarer labor organization and the shipowner’s organization.

3. Matters to be implemented by the shipowner;

(b) A shipowner shall calculate average boarding wages above the minimum amount set for each place of business in accordance with this public notice and prepare for wages in arrears and the time of occurrence of disasters provided for in Articles 51-2 and 98 of the Seafarers Act, and purchase insurance and accident compensation insurance;

(2) Paragraph 2.a. (1) of the Notice of this case provides that "minimum wage for seafarers" shall be KRW 1,098,000 per month, and Paragraph 2.a. (2) of the Notification of this case provides that "minimum wage for seafarers' accident compensation" shall be KRW 1,343,00 per month. According to Paragraph 2.b. and 2.2.3 of the Notification of this case, if a foreign seafarer prescribed minimum wage by a collective agreement between the seafarer labor organization and the shipowner's organization, the method of applying the minimum wage may be different from Paragraph 2.a. of the Notification of this case.

As seen earlier, the instant collective agreement provides that the minimum amount of foreign seafarers’ ordinary wages shall be 80,00 per month (Article 2(2) and Article 3) and that it shall not be separately prescribed for 'ordinary wage amount applicable at the time of accident compensation for foreign seafarers.' Thus, whether the instant collective agreement can be deemed as 80,000 won per month, unlike 2.1 billion won of the instant public notice. According to Article 16(1) of the Act, the owner of the instant fishing vessel subject to accident compensation insurance for foreign seafarers would naturally be the insured of accident compensation insurance for the instant fishing vessel crew members, and under Article 6 of the Labor Standards Act, the concept of 'ordinary wage amount for foreign seafarers' and 'ordinary wage amount for foreign seafarers' would not be determined and publicly notified as 'ordinary wage amount for foreign seafarers' and 'ordinary wage amount for foreign seafarers' would not be unfairly treated as 'ordinary wage amount for foreign seafarers' under Article 22 of the former Act on Employment, etc. of Foreign Workers.

Therefore, under different premise, the Defendant recognized that the minimum amount of ordinary wages applied at the time of accident compensation for the Deceased was 80,000 per month when calculating the bereaved family’s benefits, funeral expenses, and missing benefits for the Deceased was illegal since it violated Article 2(1)5 of the Seafarers’ Accident Insurance Act, Article 54 of the former Seafarers’ Act, and the instant notice, and thus, this part of the Plaintiffs’ assertion is reasonable, even though it is different from the specific grounds.

(3) According to Article 2.(b) and 2.b.3(c) of the Public Notice of the instant case, where a foreign seafarer’s minimum wage is determined by a collective agreement between a seafarer’s labor organization and a shipowner’s organization, the method of applying the minimum wage of a foreign seafarer may vary from Article 2.(a) of the Public Notice.

As seen earlier, since the collective agreement of this case does not specify the average boarding wage of a foreign seafarer as different from that of a national, the amount of average boarding wage of the deceased shall be KRW 2,148,00 per month, which is the average wage applied at the time of accident compensation of a seafarer as stipulated in the notice of this case, even if based on paragraph 2.a.2 of the notice of this case, the amount of average boarding wage of the deceased shall be KRW 2,148,00,00, which is the average wage applied at the time of accident compensation of a seafarer. Therefore, in calculating the missing benefit of the deceased, the defendant recognized that average boarding wage is a cause of 80,000 per month is in violation of Article 2(1)5 of the Seafarers Disaster Insurance Act, Article 54 of the former Seafarers' Act

B. Determination on the plaintiffs' assertion 2.B.

According to Article 30 of the Seafarers' Disaster Insurance Act, where a fishing vessel crew member, etc. has lost his/her belongings due to a vessel accident while on board, the amount equivalent to the value of the lost belongings shall be paid as benefits for the loss of belongings within the limit of two months of ordinary wages. The purport of the above provision is that the maximum amount equivalent to the value shall be paid as benefits for the loss of belongings only if it is proved that a fishing vessel crew member, etc. has lost his/her belongings due to a vessel accident while on board, and such maximum amount shall be limited to the range of two months of ordinary wages, and the maximum amount shall not be limited to the amount for two months of ordinary

The statement of No. 4-1 and No. 2 alone is insufficient to recognize the fact that the deceased Nonparty 1 and the deceased Nonparty 2 possessed each marriage counter (18K, 1 money) and mobile phone at the time of the accident. It is insufficient to recognize the fact that the value of the above marriage counter and mobile phone corresponds to the amount equivalent to the amount of ordinary wage for two months, and there is no other evidence to acknowledge it. Therefore, the plaintiffs' assertion is without merit.

5. Conclusion

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

The presiding judge, judge and judicial police officer

Judges Kim Yong-nam

Judges Choi Jae-in