[1] Whether the same subject matter of a lawsuit is identical to a lawsuit claiming damages on the ground of the indivability of a ship and a lawsuit claiming damages under the Seafarers Act (negative)

[2] The person who bears the burden of proving that the cause of death of a seafarer was caused by the intentional or gross negligence of the seafarer in a lawsuit claiming accident compensation under the Seafarers Act (=owner)

[3] Whether a party to a labor contract may enter into a separate agreement on payment of accident compensation in addition to the Labor Standards Act or the Seafarers' Act (affirmative)

[1] A claim for accident compensation under the Seafarers' Act and a claim for damages due to a tort under the Civil Act are related to an agreement, and the subject matter of a lawsuit is different. The so-called "claim for damages" that the ship could not have a safe voyage has the same nature as that of a claim for damages due to a tort in that it is a claim for damages. Therefore, the subject matter of a lawsuit shall be different from that of a claim for damages due to a tort.

[2] In Article 90 (2) of the Seafarers Act, where a seafarer dies due to reasons other than his duties while on board (including medical care under Article 85 (2) of the Seafarers Act), the shipowner shall provide bereaved family as prescribed by the Presidential Decree with compensation for bereaved family members equivalent to the amount of average boarding wages for 1,00 days without delay: Provided, That the same shall not apply where the shipowner obtains recognition from the Seafarer Labor Relations Commission in cases where the cause of death occurred due to the intention or gross negligence of the seafarer, the shipowner shall bear the burden of proving that the cause of death of the seafarer was due to the intention or gross negligence of the seafarer on board is attributable to the shipowner who claims the discharge of liability for compensation

[3] According to Article 2 of the Labor Standards Act, which applies under Article 5 (1) of the Seafarers Act, the working conditions stipulated under the Labor Standards Act and the Seafarers' Act are the minimum criteria. Thus, the provisions on accident compensation under the Labor Standards Act and the Seafarers' Act are merely the minimum standards. Thus, under the principle of freedom of contract, a party to a labor contract agrees to pay a separate accident compensation in addition to the accident compensation under the Labor Standards Act or the Seafarers' Act, and as long as such agreement was made, an employer shall be liable to pay a separate accident compensation under the agreement. Thus, even if the agreement was made under the provisions on the special accident compensation under the Seafarers' Act which provides that the special accident compensation, which is a separate accident compensation under the Seafarers' Act, shall not be based on the Seafarers' Act, if the party to the labor contract agrees to additionally pay the special compensation as the accident compensation under the provisions of the above Shipping and Port Authority, the employer shall be liable to pay the above special compensation.

[1] Articles 750 and 756 of the Civil Act, Article 90 of the Seafarers Act / [2] Article 90 of the Seafarers Act, Article 261 of the Civil Procedure Act / [3] Article 5 (1) of the Seafarers Act, Article 2 of the Labor Standards Act

[1] Supreme Court Decision 70Da2294 decided Mar. 30, 1971 (No. 19-1, 267) Supreme Court Decision 86Meu228 decided Jun. 23, 1987 (Gong1987, 1219)

Plaintiff (Law Firm Sejong, Attorneys Final-hwan et al., Counsel for the plaintiff-appellant)

A. S. Entertainment (Attorneys Lee Young-seok et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2000Na28645 delivered on November 24, 2000

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

1. Basic facts acknowledged by the court below

The court below found that the defendant was the owner of the gymal mold (the plaintiff's crew member) and the non-party 1, who was the non-party 1's crew member, to enter into an employment contract on March 2, 1995 for the defendant company and worked for the non-party 3's overseas ship management business entity (hereinafter "overseas ship"), and the monthly average wages was US$ 2,049.65 U.S. dollars and the above gymal net oil was loaded in Benael on January 28, 196 and used for the non-party 1, the non-party 1, who was the non-party 1's crew member, to the non-party 1's gymalthal deck, and the non-party 1, who was the non-party 1's crew member's galthal and the non-party 1's galthalthalthy's malthalthy.

2. Judgment on the Defendant’s grounds of appeal

A. As to the part of the instant safety defense

A claim for accident compensation under the Seafarers' Act and a claim for damages due to a tort under the Civil Act are in a relationship between the parties to a claim and agreement, and the subject matter of a lawsuit is different (see Supreme Court Decision 86Meu228, Jun. 23, 1987). The so-called "claim for damages on the ground of influence that a ship could not have safe navigation ability has the same nature as that of a claim for damages due to tort in that it is a lawsuit for damages. Therefore, the subject matter of a lawsuit for damages compensation under the Seafarers' Act and the subject matter of a lawsuit

Upon examining the records in light of the above legal principles, the court below rejected the claim against the defendant in the 34th district court (34th district court) in the 197 U.S., where the plaintiff raised a lawsuit claiming damages against the defendant in the U.S. court due to the non-party 1's death, and thus the lawsuit of this case seeking accident compensation based on the Seafarers' Act is unlawful as it constitutes duplicate lawsuit, and the plaintiff asserted that the non-party 1 died due to the non-party 1's negligence on January 22, 1997 as to the defendant's defense, which is unlawful as the plaintiff's ship owner's fault, and rejected the claim for damages based on the plaintiff's tort and the seafarer's accident compensation based on the seafarer's law because it differs in the subject matter of lawsuit, and the court below rejected the claim for damages based on the non-party 1's tort, and it did not err in the misapprehension of legal principles as to the subject matter of this case's claim, as otherwise alleged in the ground of appeal.

B. As to the rejection of the Defendant’s claim for exemption on the ground of suicide

The court below rejected the plaintiff's primary claim seeking compensation for survivors' compensation equivalent to the average wage of 1,300 days on the ground that the non-party 1 died on the ground that the non-party 1 died on duty. However, since the non-party 1 died on the ground other than his official duty, the plaintiff's conjunctive claim seeking compensation for survivors' compensation equivalent to the average wage of 1,00 days on the board pursuant to Article 90 (2) of the Seafarers' Act was justified. The court below rejected the defendant's defense that the non-party 1 did not have a duty to pay compensation for survivors' compensation under the latter part of Article 90 (2) of the Seafarers' Act because the non-party 1's death falls under the case where the non-party 1 died on the part of his intentional act or gross negligence, the court below rejected it on the ground that the non-party 1 himself could have died on the part of the non-party 1's own left hand and died on a rail rail for a considerable time.

In light of Article 90 (2) of the Seafarers Act and Article 90 (2) of the Seafarers Act, where a seafarer dies for reasons other than his duties during the service on board (including medical care under Article 85 (2)), the shipowner shall provide bereaved family members prescribed by Presidential Decree with compensation for bereaved family members equivalent to the amount of average boarding wages for 1,00 days without delay: Provided, That this shall not apply where the shipowner obtains recognition from the Seafarer Labor Relations Commission in cases where the cause of death occurred due to the seafarer's intentional or gross negligence, the shipowner shall have the burden of proving that the cause of death occurred due to the seafarer's intentional or gross negligence shall be deemed to be the shipowner who claims the exemption from liability for compensation for bereaved family members who died during the service on board. In light of the records, the court below's determination that there is no certificate of care and the aggregate of the face of the non-party 1 cannot be seen as a fall down once, and rejected the defendant's exemption from liability due to the violation of the rules of evidence, as otherwise alleged in the ground for appeal.

3. Judgment on the Plaintiff’s grounds of appeal

The court below rejected the plaintiff's claim for special compensation on the ground that Article 3 (2) of the Regulations on the Compensation for Overseas Seafarer's Disaster in Korea (Notice No. 1991-6 of Feb. 8, 191) provides that "the shipowner shall pay 30,00 U.S. dollars to his bereaved family members in the case of death of the crew on board due to reasons other than his duties while on duty." However, the imposition of the shipowner's property obligation, such as the above special compensation, is a legislative matter, so it is necessary to delegate it to the Presidential Decree or the Rule by specifying the objective criteria that can specifically determine the requirements and amount by law. However, even after examining the provisions of the Seafarers' Act, there is no ground for special compensation stipulated in the Regulations on the Compensation for Overseas Seafarer's Accident in Korea, since Article 3 (2) of the Regulations on the Compensation for Special Compensation for Overseas Seafarer's Accident in Korea should be deemed invalid beyond the limit of delegated legislation.

However, according to Article 2 (1) of the Labor Standards Act applicable under Article 5 (1) of the Seafarers Act, working conditions stipulated under the Labor Standards Act and the Seafarers' Act are the minimum standards. Thus, the provisions on accident compensation under the Labor Standards Act and the Seafarers' Act are merely the minimum standards. Thus, under the principle of freedom of contract, a party to a labor contract can always agree to pay a separate accident compensation in addition to the accident compensation under the Labor Standards Act or the Seafarers' Act, and as long as such agreement was made, an employer shall be liable to pay a separate accident compensation under the agreement. Thus, even if the agreement was made in accordance with the provisions on special accident compensation under the Seafarers' Act which provides that the special accident compensation, which is a separate accident compensation under the Seafarers' Act, shall be paid, if the party to the labor contract agrees to additionally pay the special compensation under the provisions of the above Shipping and Port Authority, the employer shall be liable to pay the above special compensation.

However, according to the records, when entering into the above employment contract, the foreign vessel representing the defendant and the non-party 1 agreed to make accident compensation in accordance with the Regulations on Compensation for Overseas Employment Disaster in Seafarers (Public Notice of the Port Office No. 91-6), and Article 3 (2) of the above Regulations provide that "the shipowner shall pay 30,000 US dollars to his bereaved family members as special compensation in the case of death of the crew on duty other than his duty while on duty." Thus, in light of the above legal principles as seen earlier, the defendant agreed to make accident compensation in the above harbor state office which provides that the compensation for bereaved family members shall be paid as special compensation in accordance with the above port state office which provides that the compensation for bereaved family members more than the accident compensation as stipulated in the Seafarers Act shall be paid as special compensation. Thus, it is reasonable to deem that the non-party 1 was liable to pay 30,00 US dollars to the plaintiff

Nevertheless, the court below's dismissal of the plaintiff's claim for special compensation solely on the ground that Article 3 (2) of the Regulations on Compensation for Overseas Employment Disaster of Seafarers for Special Compensation is invalid that it deviates from the limit of delegated legislation is an error of law that affected the conclusion of the judgment by misunderstanding the cause of the plaintiff's claim or by misunderstanding the legal principles on the working conditions under the Seafarers Act and the Labor Standards Act. The ground of appeal pointing this out has merit

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff (the plaintiff seems to have appealed to the part concerning special compensation) is reversed, and this part of the case is remanded to the court below. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)