207 Disposition of revocation of a decision on compensation for survivors and the head of a non-payment

P (73years No. 800,00)

Attorney Kim Won-ho, Counsel for the defendant-appellant

Korea Labor Welfare Corporation

October 1, 2008

October 29, 2008

1. Compensation part of the disposition of compensation for survivors and funeral expenses made by the defendant against the plaintiff on December 29, 2006 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 December 29, 2006 shall be revoked.

1. Details of the disposition;

A. On August 2, 2006, the Plaintiff’s husband (the Plaintiff’s husband of October 6, 1973) worked for a worker belonging to 00 corporation (hereinafter “non-party company”) who was awarded a subcontract for the electrical construction (hereinafter “instant construction”) from YY Co., Ltd., Y, the contractor of the Busan Jin-gu, Busan, for reconstruction construction (hereinafter “the instant construction”) for the said construction (hereinafter “non-party company”). On August 2, 2006, the Plaintiff completed the instant construction-related work at around 18:10, and took three meetings with his paid workers, and was diving from the second floor (hereinafter “the instant lodging”). Around 02:00 on August 3, 2006, the Plaintiff died from a fire that occurred between 02:00 and 03:00.

B. On December 29, 2006, the Plaintiff asserted that the death of the deceased constitutes an occupational accident and filed a claim for compensation for survivors and funeral expenses with the Defendant. However, on the ground that the right to manage and use the instant accommodation belongs to the exclusive authority of the deceased’s workers, such as the Plaintiff, and the instant accommodation was not controlled and managed by the non-party company, the business owner, and thus, the deceased’s death did not constitute an occupational accident (hereinafter “instant disposition”). As such, the Defendant rendered a disposition rejecting compensation for survivors and funeral expenses (hereinafter “the instant disposition”).

C. On the other hand, the Plaintiff filed a successive request for review and reexamination, but all of which were dismissed.

【Reasons for Recognition】

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Deceased died of a fire presumed to have been caused by the electrical power failure of the non-party company’s possession among the lockeds provided by the non-party company, the deceased’s death was caused by the defect in the facilities managed by the business owner or the failure to manage the facilities by the business owner, and thus constitutes an occupational accident, the instant disposition otherwise reported is unlawful.

B. Facts of recognition

(1) On February 5, 2004, the deceased joined the company of the non-party company and worked as the head of the site office at the electrical construction site performed by the non-party company as an electrical engineer.

(2) The non-party company is located in Chungcheong-gun, and has ten full-time workers, who work for electrical construction business. The deceased was living in Cheongju-si, leaving his workplace at the construction site near the above residence. On April 2005, the head of the A site, who was in charge of the instant construction, was dismissed from the non-party company and became in charge of the instant construction work. B was residing in Cheongbuk-gun, and C was living in Cheongju-si, while working as the head of the site site and supported the deceased. B and C supported the deceased. B and C supported the instant construction at the site of the instant construction site.

(3) At the first time of the instant construction, the Deceased et al. resided in the inn of the Busan Flusium, which was a lodging place prepared by the non-party company, but it was difficult to perform night construction because the said female is narrow and distance at the construction site of this case, and the deceased requested E, the representative director of the non-party company, to prepare a new lodging, and obtained the consent on the condition that he would obtain a lodging at a low cost.

(4) On May 23, 2005, the Deceased entered into a lease agreement with F on the premise that the proprietor of the instant accommodation was leased at KRW 12 months of the instant accommodation, KRW 3 million of the deposit, and KRW 200,000 of the monthly rent. On May 25, 2005, the Deceased moved to the instant accommodation and resided with B and C until the said fire breaks out, and performed the instant construction. On the other hand, the Nonparty Company had the Deceased manage the instant accommodation by driving away from the air until around 03:0. On the other hand, the Nonparty Company did not visit the instant accommodation prior to the fire, and did not know the location of the instant site.

(5) The accommodation of this case is located in the vicinity of the construction site of this case, consisting of the room 3 partitions, the room 1 partitions, and the kitchen 1 partitions. The deceased used a room on the left side when viewed from the present room, and B used a room on the left side when viewed from the present room, and C used a room on the right side when viewed from the present room. In the room used by the deceased, access to the room used by B was possible.

(6) On August 2, 2006, the deceased left the construction site of this case at around 18:10 on a day after undergoing the electrical safety inspection of the day, and returned to the instant site at around 00:0 on August 3, 2006 by dividing the 6-lane to the 1700cc main place, and dice 170cc away to the 1700cc main place. At the same time, the deceased and alcoholic beverages were returned to the instant site at around 00:30 on August 3, 2006, and returned to the instant site at around 0:30,000, and immediately returned to the deceased and alcoholic beverages at the time of returning to the instant site.

(7) However, between around 02:00 and around 03:00 on the day when the Deceased was on the same day, fire occurred within the instant accommodation, and accordingly, the Deceased died. At the time, B and C were not at the instant accommodation, and the Deceased was dead as it was not at the time, but at the time. As a result of the appraiser belonging to the South Part of the National Institute of Scientific Investigation and Investigation, the fire was spread out in the part between the ward room and the right line used by B, and the cause was suspected of the electrical power line of the power line inside the air-line.

(8) As a stand-type large-scale line, those kept without being covered by Nonparty Company’s office at the construction site of this case were brought to the instant lodging room in July 2006 and used in his ward room. Electricity products used in the instant lodging room, other than the aforementioned winding room, were air conditioners in the Deceased room, and there was no air conditioners installed.

(9) After the fire, the non-party company sent I to the construction site of this case after the fire. The non-party company resided with B and C in a female room located in Busan Jin-dong, Busan, and continued the construction of this case. The non-party company completed the construction on August 31, 2006.

【Reasons for Recognition】

C. Determination

(1) If a disaster occurs due to a defect in a facility managed by the business owner or an neglect of facility management by the business owner, or a defect or neglect of management of such facility concurrently with other reasons, such accident shall be deemed an occupational accident except for self-harm of the worker affected by the accident (see, e.g., Supreme Court Decision 98Du10103, Jan. 26, 199). As in the instant case, in order to constitute occupational accident in the event a worker dies due to an accident that occurred at the night, a reasonable causal relation shall be acknowledged between the defect of the facility under management or management by the business owner and the defect of the facility under management by the business owner, the defect of the facility under management by the business owner, or the neglect of facility management by the business owner and the accident.

(2) In this case, according to the above facts, the non-party company was responsible for the construction of this case as a site warden, and it seems that comprehensive delegation was made to the deceased. Although the deceased leased the instant accommodation under his name, he was ordered by the representative director of the non-party company to have a pleasant accommodation, and leased the instant accommodation. The purpose was to ensure the smooth construction of the instant construction work, such as night work, and the convenience of commuting to and from work of the workers who reside in the long distance. The non-party company was designated as a lodging house even before the instant accommodation was leased. The non-party company was designated as another lodging house even before the instant building was leased. The workers belonging to the non-party company including the deceased et al. were residing in the front time, etc., and worked at night to see the construction of the instant construction work, and it was necessary to reside in the neighboring work of the deceased et al., and the costs of the instant work were provided from the non-party company's dwelling to the non-party company for more than one year.

Furthermore, if the defect of a facility used as a lodging room, or if the business owner provides workers with the facility, whether a proximate causal relationship is acknowledged between the defect of the facility used as a lodging room, the business owner's negligence in the facility management, and the accident, even if the facility was leased and provided, and thus, the business owner is not responsible for installing and preserving the facility, the business owner is required to inspect the facility in advance and demand the management entity of the facility if the facility is in a state of safety failure. If the management entity of the facility fails to comply with such demand, the business owner is obligated to prepare other facilities and provide the worker with the facility. Therefore, if the business owner neglected such duty of care, the business owner's defect in the facility managed by the facility or the facility management negligence of the business owner. In other words, it is doubtful that the cause of the fire at the lodging room of this case was caused by the electrical power line of the deceased at the time of the living room or the facility management failure of the facility of this case, and thus, it appears that the fire at the above facility management without being installed by the non-party company's fault.

Therefore, the death of the deceased is an occupational accident.

(3) Meanwhile, Article 45 (1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007) provides that "the funeral expenses shall be paid in cases where a worker dies due to any reason in the course of his/her duties, and the amount equivalent to the average wage for 120 days shall be paid to the person who performs the funeral." According to the statement of No. 10 and the result of inquiry into the non-party company in this court, the non-party company can recognize the fact that the non-party company performed the funeral for the deceased by bearing all funeral expenses. Thus, the plaintiff does not have the right to claim the defendant

(4) Ultimately, the part on compensation for survivors of the instant disposition is unlawful, and the part on funeral expenses is lawful.

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