[1] The purpose of the Industrial Accident Compensation Insurance Act increase or decrease of average wages

[2] The case holding that in calculating the average wage, which is the basis for calculating temporary disability compensation benefits to be paid to an employee suffering from an occupational accident, if the wage is retroactively increased after the date of the occupational accident, the amount of temporary disability compensation benefits shall be calculated by increasing the average wage of the employee from

[1] In calculating insurance benefits, the Industrial Accident Compensation Insurance Act provides that the ordinary wage paid to an employee in the same occupational category as the business to which the employee belongs shall be increased or decreased by the fluctuation rate (see Article 38(3) of the Industrial Accident Compensation Insurance Act, and Article 25(1) [Attachment 1] of the Enforcement Decree of the same Act, if the employee receives insurance benefits for a long time or after a long period of time, the average wage shall be calculated on the basis of the date of accident or diagnosis on which the cause for calculating the average wage occurred, and accordingly, it is established to correct unreasonable cases in which the amount of insurance benefits is not properly reflected in the actual value of the insurance benefits if it is determined.

[2] The case holding that in calculating the average wage that serves as the basis for calculating temporary disability compensation benefits to be paid to an employee suffering from an occupational accident, if the wage is retroactively increased after the date of occupational accident, the amount of temporary disability compensation benefits shall be calculated by increasing the average wage of the employee from the month following the retroactive increase of the wage in light

[1] Article 38(3) of the Industrial Accident Compensation Insurance Act, Article 25(1) [Attachment 1] of the Enforcement Decree of the Industrial Accident Compensation Insurance Act / [2] Article 38(3) of the Industrial Accident Compensation Insurance Act, Article 25(1) [Attachment 1] of the Enforcement Decree of the Industrial

Plaintiff (Law Firm Hanl, Attorneys Lee In-bok et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

Seoul High Court Decision 2003Nu7837 delivered on January 9, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

Average wages, which are the basis for calculating temporary disability compensation benefits under the Industrial Accident Compensation Insurance Act, shall be calculated by dividing the total amount of wages paid to the relevant worker during three months before the date of occurrence of an accident causing injury due to an occupational accident or the date of confirmation of occurrence of an occupational disease due to diagnosis by the total number of days during that period (see Articles 41(1) and 4 subparag. 2 of the Industrial Accident Compensation Insurance Act, Article 19(1) main text of the Labor Standards Act,

On the other hand, in calculating insurance benefits under the Industrial Accident Compensation Insurance Act, where the ordinary wage paid to an employee with the same job type as that to which the employee belongs is changed by more than 5%, the average wage shall be increased or decreased by the fluctuation rate (see Article 38(3) of the Industrial Accident Compensation Insurance Act, and Article 25(1) [Attachment 1] of the Enforcement Decree of the same Act. When receiving insurance benefits for a long time or receiving insurance benefits after a long period of time, the average wage shall be calculated on the basis of the date of the accident or diagnosis and confirmation day on which the cause for calculating the average wage occurred, and accordingly, it may be said that the system has been prepared to correct unreasonable cases where the amount of insurance benefits is determined by determining the amount of insurance benefits without properly reflecting the substantial value of the insurance benefits.

In this case, the average wage, which serves as the basis for calculating temporary disability compensation benefits to be paid to the Plaintiff, shall be calculated by dividing the total amount of wages paid for the three months before August 21, 200 on the date of occupational accident, by the total number of days during which the ground for calculation occurred. If the ordinary wages of the same occupational employee as that of the Plaintiff were increased by 6.45% from April 1, 2001 under the collective agreement to which the Plaintiff belongs, the purport of the average wage system reflecting the level of ordinary living wages, the purpose of the industrial accident compensation insurance system and the system to increase or decrease average wages, which provides compensation to the Plaintiff to the extent that it would be close, by raising the standard of living that would have been available if there was no disaster to the accident, and it is reasonable to view that the above company, the insurance purchaser, etc., obtained the increase or decrease of the average wages from the former Industrial Accident Compensation Insurance Act (amended by Act No. 7049, Dec. 31, 2003) to the total amount of wages paid to the Plaintiff, regardless of the total wage premium rate for each year.

In the same purport, the court below was just to revoke the Defendant’s non-approval of the application for increase of average wage of this case as unlawful, and it did not err by misapprehending the legal principles on increase or decrease of average wage under the Industrial Accident Compensation Insurance Act.

Supreme Court Decision 80Nu411 Decided December 9, 1980 cited in the ground of appeal by the defendant is different from this case and it is not appropriate to invoke this case.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)