208Gudan2222 Such revocation as compensation for survivors and funeral's non-payment.

P (61 year olds, women)

Attorney Kim Dong-in, Counsel for the defendant-appellant

Korea Labor Welfare Corporation

July 23, 2008

September 10, 2008

1. The part concerning compensation for survivors among the disposition of compensation for survivors and funeral expenses made by the defendant against the plaintiff on September 10, 2007 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/9 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The defendant's disposition of compensation for survivors and funeral expenses against the plaintiff on September 10, 2007 shall be revoked.

1. Details of the disposition;

A. On June 13, 2007, at around 17:40 on June 19, 2007, the Plaintiff’s husband was missing and was found to have died at the neighboring sea where the instant vessel was anchored, when he was on duty as a tugboat engineer or engine operator of Category B1 (394 tons, hereinafter “the instant vessel”).

B. The plaintiff filed a claim against the defendant for compensation for bereaved family and funeral expenses due to the death of the deceased A (hereinafter referred to as the "the deceased"), but the defendant was confirmed on September 10, 2007 as 0.23% of the blood alcohol concentration due to personal reasons at the time of the death in spite of the business owner's instructions that prohibit the deceased from drinking during working hours. Such drinking condition is determined as being unable to perform duties under an employment contract with the business owner when considering that it is the duties of the deceased who should bear expenses for 24 hours, and the defect or management of facilities managed by the business owner due to death or other causes.

The instant disposition was taken to pay compensation for survivors and funeral expenses on the ground that the deceased’s death does not constitute occupational accidents, as there is no objective evidence to deem that the deceased’s death was caused by the person.In addition, the Plaintiff filed a request for examination against this and received a decision of dismissal.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Deceased was engaged in the duty to manage and preserve the entire ship of this case for 24 hours in shift with C at the time. The Deceased appears to have been on board the ship of this case for the performance of the above duty and died on the sea. The Deceased’s duty on duty is an ordinary act incidental to the duty of labor contract and the business owner’s instruction, and the Deceased’s business owner did not prohibit the Deceased from eating out of the ship of this case. While the Deceased was able to drink, he did not drink for suicide or death. Meanwhile, at the time, the vessel of this case is located in the outside area of the water tank located in the Busan Youngdo-gu, Busan, and at the same time, the vessel of this case must build other tugboats to board the ship of this case and the vessel of this case without a bridge, etc. a seafarer could have been on board the ship of this case, and thus, the business owner did not take safety measures to be taken on board the ship of this case because the Deceased died due to an ordinary risk associated with the deceased’s duty during his duty, and thus, the disposition of this case was unlawful.

(b) Fact of recognition;

(1) On January 1, 1990, the deceased joined the company of the non-party and worked as the string engineer of the ship. From January 1, 2007, the deceased worked as the string engineer and engineer of the ship of this case.

(2) Since January 18, 2007, the non-party company was at anchoring the instant vessel at the sea in front of the water walk-dong located in the Dobong-gu Busan, Busan. From June 1, 2007, the non-party company had the deceased and the captain of the instant vessel manage the instant vessel while on duty two days alternately from June 1, 2007. The work shift between the deceased and C was ordinarily 16:00 square meters.

(3) The instant vessel is equipped with accommodation and cooking facilities. The Nonparty Company provided education and instructions from time to time to time to prevent the Deceased, etc. from getting on board a vessel after drinking alcohol or drinking on land, but did not itself prohibit eating out of the vessel while on duty.

(4) At around 08:30 on June 13, 2007, the Deceased worked in the instant vessel with C, and ceased the above work with C, and at around 11:00 after taking over the work from C, the Deceased landed on the instant vessel for the purpose of drinking 16:0 pups. At around 16:30 on the same day, the Deceased left the instant vessel for the purpose of drinking. At around 16:30 on the same day, at the 49 restaurant located in the Busan Youngdo-gu, Busan, where Do-gu, Do-si, Do-gu, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, and Do-si 500cc and Do-ho 19:40 on duty.

(5) E was investigated in relation to the missing case of the Deceased at the Busan Military Police Station, and stated that the body condition of the Deceased was not so drunk. (6) The place where the instant vessel was anchored is located in a group of various vessels, such as a river boom line, etc., and the instant vessel was anchored in approximately 30 meters in a straight line on the front of the said vessel. However, since the location of various vessels may change from time to time, the instant vessel was not fixed on the land. To get on and get off the instant vessel, the course of the instant vessel was not fixed, and the hull height of the vessel is different in order from the vessel at anchor. On the other hand, it was not installed on the sea side of the said road, along the road along which the vehicle passed ahead of the said vessel.

(7) At around 17:40 on June 17, 2007, the Deceased was found to have died on the sea between two adjacent mother lines. As a result of the autopsy on the Deceased’s body, it was found that the Deceased was able to die, and the blood alcohol content was 0.23%.

(8) The Busan Coast Guard who investigated the deceased's missing incident is presumed to have died of the deceased's failure in the vicinity of the ship at anchor in order to board the ship of this case in drinking condition, etc., and completed internal investigation under the direction of the prosecutor under the direction of the prosecutor.

[Ground of recognition] The evidence Nos. 4-1 to 46, Eul evidence Nos. 3, Eul evidence Nos. 4-1, 2, 3, Eul evidence Nos. 5 through 10, Eul evidence Nos. 12, and the purport of the whole pleadings is to determine.

According to the above facts, the Deceased may see that he was able to dump other vessels at anchor in the Do which were returned to the instant vessel in order to perform duties on duty after drinking out of the instant vessel while drinking, and dumping away from the sea by drinking, while the Deceased and dumping down the floor of the instant vessel.

In addition, for the maintenance and preservation of the vessel of this case, the deceased's duties shall be on board the vessel of this case. To get on and leave the vessel of this case, only the vessels anchored in sequence around the vessel of this case shall be allowed to get on and leave the vessel of this case, and the vessel of this case shall be deemed to have a risk of satisfaction even at the usual level, because the height of the vessel was different. Thus, even if there is no evidence to deem that drinking of the deceased was a cause of the deceased's total death, even if there was a mistake such as taking the business owner's instructions and drinking during working hours, it is reasonable to deem that the deceased's accident, which was sufficient during the course of boarding the vessel of this case for the purpose of performing his duties, is within the scope of the danger that would normally be caused by the deceased's duties.

On the other hand, Article 71 (1) of the Industrial Accident Compensation Insurance Act provides that "the funeral expenses shall be paid when a worker dies due to an occupational reason, and the amount equivalent to the average wage for 120 days shall be paid to a survivor who arranges the funeral: Provided, That in cases where there is no survivor who will receive the funeral or where a person who is not a survivor arranges the funeral due to other unavoidable reasons, the expenses actually incurred within the extent of the amount equivalent to the average wage for 120 days shall be paid to the person who arranges the funeral." According to the evidence No. 4-3 and No. 12, according to the evidence No. 4-3 and No. 12, according to the evidence No. 4-2, the fact that the non-party company performed the funeral for the deceased by bearing all funeral

Therefore, the bereaved family compensation part among the dispositions of this case is illegal, and the funeral expenses part is legitimate.

3. Conclusion

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

Judges Yang Dong-soo