208 old 796 Disposition of revocation of the additional payment of bereaved family benefits, etc.

A (35 years old, female)

Attorney Kim Tae-sik, Counsel for the defendant-appellant

Korea Labor Welfare Corporation

March 18, 2009

April 8, 2009

1. To dismiss the part of the instant lawsuit seeking the revocation of the disposition of site rent for funeral.

2. The Defendant’s disposition on February 23, 2007 against the Plaintiff as the bereaved family benefit site level shall be revoked. 1/9 of the litigation costs on March 3, 200, the remainder shall be borne by the Plaintiff, and the Defendant, respectively.

On February 23, 2007, the defendant revoked the disposition of bereaved family's benefits and funeral expenses against the plaintiff on February 23, 2007.

1. Details of the disposition;

가. 원고의 아들인 B(1961.1.11.생)는 주식회사 ■■(이하 '소외 회사' 라고 한다)의 생산관리부 차장으로 근무하다가 2006.4.4.부터 중국 청도 소재 ●● 유한공사(이하 '중국 회사'라고 한다)에 파견되어 근무하던 중 2006. 4. 23. 14:00경 중국 회사 직원인C가 운전하는 중국 회사 소유의 소형 승합차의 조수석에 동승하여 가다가 C가 위 차량으로 갓길에 있던 도로표지판을 들이받는 교통사고(이하 '이 사건 사고'라 한다)를 일으키는 바람에 대뇌 손상으로 사망하였다.

B. The plaintiff filed a claim for bereaved family's benefits with the defendant that the death of the deceased B (hereinafter referred to as the "the deceased") constitutes an occupational accident. On February 23, 2007, the defendant filed a claim for bereaved family's benefits against the plaintiff on February 23, 2007, since the deceased's work was produced and managed in China, the deceased's work constitutes an overseas temporary agency worker. The non-party company did not file an application for overseas temporary agency worker's industrial accident compensation insurance (hereinafter referred to as "industrial accident insurance"). At the time, the non-party company made a disposition of bereaved family's benefits (hereinafter referred to as "disposition of this case"). The plaintiff filed a claim for review and reexamination in sequence, but all of the claims were dismissed.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 12, 13, Eul evidence Nos. 1 and 3, the purport of the whole pleadings

2. The part of the lawsuit of this case seeking the revocation of the disposition of the funeral site portion is lawful on the premise that the defendant made the disposition of the bereaved family's benefits and funeral site portion. However, as seen earlier, the defendant merely made the disposition of this case against the plaintiff, which is the bereaved family's benefits site portion, and there is no evidence to support that the plaintiff made the request for the payment of funeral expenses against the defendant on the ground of the deceased's death, and the defendant made the request for the payment of funeral expenses, and therefore, the above site portion disposition does not exist. Since the revocation lawsuit against non-existent administrative disposition does not have interest in the lawsuit, the part seeking the revocation of the disposition of the funeral

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Deceased was killed due to the instant accident while serving as a business trip in a Chinese company, a Chinese subsidiary of the non-party company, after becoming a member of the non-party company, while serving as a Chinese subsidiary of the non-party company, and thus, the Deceased’s death constitutes an occupational accident, the Defendant’s disposition that reported otherwise is unlawful.

B. Relevant statutes

Article 5 (Scope of Application) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007) This Act shall apply to all businesses or workplaces that employ workers (hereinafter referred to as the "business"): Provided, That this shall not apply to businesses prescribed by the Presidential Decree in consideration of risk rate, size, place, etc.

(1) Where the insured under Article 5 (3) and (4) of the Insurance Money Collection Act applies for insurance to the Corporation and obtains approval from the Corporation for the business (hereinafter referred to as the “overseas dispatched person”) that is conducted by the insured in the area outside the territory of the Republic of Korea (excluding the area prescribed by the Decree of the Ministry of Labor), the overseas dispatched person shall be regarded as a worker employed for the business (referring to the main business in case where two or more business are carried out) within the territory of the Republic of Korea

(c) Fact of recognition;

(1) The non-party company was established on October 10, 200 and engaged in the business of manufacturing salt high-frequency, etc., and produced the product in a way of giving the whole quantity to the Chinese company upon completion of the product after printing the product on the surface of the new spatch, in the form of infection high-frequency. The non-party company was taking measures to recognize and extinguish the industrial accident insurance relationship as of July 21, 2004 by the defendant on the ground that the industrial accident insurance relationship was established as the "lease and business service business" on January 3, 2001 and its location is unknown.

(2) After the accident of this case, the defendant confirmed that the wage report was made from 2003.1 to 2006.4.4.1, and on the basis of the fact, the defendant revoked the above recognition extinguishment measure and re-exploited on July 1, 2006.

(3) The representative director of the non-party company and the representative of the Chinese company are all D, but the actual representative director and the representative are D's three degrees.

(4) On January 2003, the Deceased was employed as the Deputy Director of the Production Management Department as a salt technician. The non-party company worked for five members including the Deceased, the G Deputy Director, the H director, and the Lee head in charge of self-denunciation. The non-party company did not have been subscribed to medical insurance and national pension for the above employees including the Deceased.

(5) A large number of employees of the company were dispatched for production management and technical guidance purposes to the company of China. Around early 2006, the employee in charge of production management was resigned from the company of China, and the deceased was dispatched to the company of China from April 4, 2006. (6) The deceased was employed by the company of China on April 4, 2006 to April 29, 2005, even before the company of China was transferred to the company of China, the company of China was engaged in the production of new products during the period from May 5, 2005 to July 7, 2005; and from July 12, 2005 to August 25, 2005 to October 14, 2006 to February 14, 2006.

(7) The Deceased received monthly payment from the non-party company in cash, but received payment from the non-party company through the Plaintiff’s passbook during the period of work in the Chinese company. The Deceased’s salary was 2 million won per month, but was paid in addition to the dispatch allowance in the case of Chinese company’s work.

(8) The assessment of earned income tax was conducted on the basis of the wage received from the non-party company from the time the deceased joined the non-party company until his death.

(9) On April 23, 2006, the Deceased was killed in the vehicle driven by C, an employee of the Chinese company, in order to deliver the cargo from the Chinese company to the customer in the Cheongdo to the Cheongdo Island. At the time, the Deceased was in the uniform of duty.

[Basis] Evidence Nos. 2, 3, 6, 7, 8, 9, Gap evidence Nos. 10-1, 2, Gap evidence Nos. 14, 15, Eul evidence Nos. 4, Eul evidence Nos. 5-1 and 2, witness H's testimony, and the purport of the whole pleadings

D. Determination

(1) In light of the purport of the Industrial Accident Compensation Insurance Act, the industrial accident compensation insurance relationship is established on a business or workplace basis, and the Minister of Labor takes charge of the industrial accident compensation insurance, and if the Minister of Labor satisfies certain conditions prescribed in the Industrial Accident Compensation Insurance Act, the business owner is naturally insured, the insurance premium can be uniformly determined, and the insurance premium can be collected through compulsory methods, and the Industrial Accident Compensation Insurance Act can only be applied to the case where Article 105-2 of the Industrial Accident Compensation Insurance Act applies to the dispatched overseas after applying for insurance to the Korea Workers’ Compensation and Welfare Service. Barring special circumstances such as where the worker’s place of work is merely an overseas and actually belongs to a domestic business and works under the direction of the employer, it shall be deemed that the business under Article 5 of the Industrial Accident Compensation Insurance Act means only the case where the business is performed in Korea (Supreme Court Decision 98Du

(2) In this case, the deceased was employed in the non-party company and worked for the non-party company at the time of the accident, and the actual representative of the non-party company and the Chinese company were the same, so it can be deemed that the deceased received work instruction and personnel management from the non-party company even during the dispatch period. The deceased was dispatched from the non-party company to the production management division and performed production management and technical guidance. The deceased was dispatched to the non-party company several times before the accident occurred and was dispatched to the non-party company and returned again to the non-party company. The deceased was expected to return to the non-party company even at the time of dispatch on April 4, 2006. In full view of the following circumstances, the deceased was paid wages from the non-party company and paid wage and salary income tax, it is reasonable to view that the deceased actually belonged to the non-party company's domestic business and worked for the non-party company under its direction. The deceased's place of work provided to the non-party company cannot be deemed as falling under the temporary placement overseas prescribed in Article 10-2 of the former Industrial Accident Compensation Insurance Act.

(3) Furthermore, as to whether the death of the deceased caused by the instant accident constitutes an occupational accident, the Health Team and as seen earlier, the Deceased is not an overseas dispatch worker, and as such, the Deceased is not a non-party council.

The industrial accident insurance relationship established between the deceased and the deceased is maintained, and according to the above facts of recognition, the deceased was killed due to the accident of this case that occurred during the course of performing his duties, so the deceased's death constitutes occupational accident.

(4) Therefore, the Defendant’s instant disposition that was otherwise reported is unlawful.

4. Conclusion

Therefore, the part of the plaintiff's claim for the cancellation of the disposition of the funeral's allowance in the lawsuit of this case is unlawful and dismissed, and the remaining claims are reasonable, and it is so decided as per Disposition by admitting them.

Judges Yang Dong-soo