2016 Gohap 575954 Liability for Damages

1. A;

2. B

Plaintiff-Appellee, Park Jong-ho, Kim Jong-sung, Park Jong-sung, and Kim Byung-hee, Counsel for the defendant-appellant

- Doz. Kimba

Law Firm Shin Young-soo, Attorney Lee Young-young

Law Firm Rate, Attorneys Lao, Hahn-hee in charge

1. C:

Law Firm Shin-cheon, Counsel for the defendant-appellant

Attorney Kim Tae-tae, Park Jong-hee, Lee Ho-hee, Lee Sung-hee

2. D;

3. E.

Defendant 2 and 3 Law Firm Sung-jin, Counsel for defendant 2 and 3

Attorney Full Il-il, Kim Jong-chul, and Choi Jin-jin

4. F;

Law Firm Lee-il, Counsel for the plaintiff-appellant

Attorney Seo Sung-won, Cho Sung-ho, Lee Ho-ho, Lee Dong-ho, Lee Jeong-ho, Lee Jae-in, and Shin

May 29, 2020

August 21, 2020

1. Defendant C, D, and E jointly pay 1,045,138,568 won to the Plaintiff and 5% interest per annum from January 16, 2016 to August 21, 2020, and 12% per annum from the next day to the day of full payment.

2. Defendant F shall pay to Plaintiff B 1,051,908,674 won with 5% interest per annum from February 2, 2015 to August 21, 2020, and 12% interest per annum from the next day to the day of full payment.

3. The plaintiffs' remaining claims are dismissed.

4. 1/10 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendants, respectively.

5. The above paragraphs 1 and 2 can be provisionally executed.

Defendant C, D, and E jointly pay 1,153,124,497 won to Plaintiff A and 15% interest per annum from January 16, 2016 to the service date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

Defendant F shall pay to Plaintiff B 1,113,437,151, and 15% interest per annum from February 2, 2015 to the service date of a copy of the complaint of this case, and 5% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. Plaintiff A

1) On September 11, 2015, the said Plaintiff employed Defendant C Co., Ltd. (Defendant C) for the purpose of dispatching workers, etc., and on the same day, dispatched Defendant D and E to Defendant C’s “H (1 business place) located in the Nam-gu Incheon Metropolitan City G operated by Defendant D and E.

2) The above Plaintiff processed aluminium with CNC1) facilities, and worked in the process of manufacturing smartphone tampers. The specific details of business were 6-7 machinery containing 99.9% Medith (Meethyl alcohol) in managing 6-7 machinery containing Medithy (Memethyl alcohol) in order to plant heat generated in Azinum. The work of reducing completed products, supplementing Medithy, removing remaining Medithy in products, and removing products using Medithy.

3) While working at the workplace on January 16, 2016, the said Plaintiff retired from the hospital because there was no eye that there was a ppuri symptoms in front of his body and eye while working at the workplace on January 16, 2016, and was used in the house and moved to the hospital. The said Plaintiff showed the decline of food and the symptoms of climatic damage in the hospital.

4) On October 2016, the Korea Workers’ Compensation and Welfare Service recognized the Plaintiff’s instant Plaintiff’s chronological and chronological disease as an occupational disease under the Industrial Accident Compensation and Compensation Insurance Act.

5) At present, the above Plaintiff was in a state of deterioration of eyesight due to spathy infection in both banks, 30 meters of safety balance of both banks of both banks, 0.02 of both banks of both banks, and 0.02 of both banks of both banks, respectively, in which correction is difficult.

B. Plaintiff B

1) On January 13, 2015, the said Plaintiff was employed in J(J on August 9, 2019, hereinafter “J”) for the purpose of dispatching workers, etc., and was dispatched to the “L” (hereinafter “two business places”) operated by Defendant F in the name of the Plaintiff on the same day.

2) The above Plaintiff processed aluminium with CNC equipment and worked as a night-time work in the process of manufacturing smartphone pressings. The specific details of duties were as follows: (a) the process of breaking completed products, the process of supplementing merium, the process of removing the remaining merium in the product, and the process of removing the finished products using merium in order to ensure the heat generated in Aluminium.

3) On January 31, 2015, the said Plaintiff was suffering from the symptoms of being invaded and hidden, and the body was not good on the following day. On February 2, 2015, 2015, the said Plaintiff was born to the M Hospital due to the aggravation of respiratory distress and the symptoms of eyesight.

4) On October 2016, the Korea Workers’ Compensation and Welfare Service recognized the above Plaintiff’s bilateral patrine infection as an occupational disease under the Industrial Accident Compensation Insurance Act.

5) At present, the said Plaintiff was in a state where the eyesight has deteriorated due to both psychotropic infection, thereby resulting in a lack of correction, 0.02 degrees from the long distance of friendlyancy, the base bronopic bronology, the long distance of shores, the base 0.02 degrees, and the base bronology

C. The risk of mertans may cause severe stimula and respiratory stimula, stimula, stimula, or stimula incination as harmful substances subject to control specified in Article 420 and Table 12 of the Regulations on Standards for Occupational Safety and Health, and may cause severe stimula, stimula, stimula, or stimula, and may cause harm to the fetus or reproductive capacity. In the long or repeated exposure, it is known

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1-29, 31, 41, 44-51, 59, 66, 67 (including provisional numbers; hereinafter the same shall apply), witness N's testimony, and the purport of the whole pleadings

2. Occurrence of liability for damages;

A. Recognition of liability for damages

1) Relevant legal principles

An employer is an incidental duty under the good faith principle accompanying employment or labor contract, and is obligated to take necessary measures, such as improving a physical environment, so that an employee does not harm life, body, or health in the course of providing labor, and is liable to compensate for damages caused by nonperformance of such duty (see, e.g., Supreme Court Decision 97Da12082, Feb. 23, 199). In cases where an employer’s breach of such an obligation for protection or safety consideration satisfies the requirements of tort, the employer is liable to compensate for damages arising from tort in concurrence with nonperformance liability (see, e.g., Supreme Court Decision 96Da3086, Apr. 4, 1997).

On the other hand, in relation to temporary placement of workers, a temporary work agency employs a worker and concludes a temporary placement contract with a user company while maintaining the employment relationship with the worker, and accordingly, the temporary agency worker works for the user company under the direction and order of the user company. Thus, risks to life, body, and health that the temporary agency worker faces during the temporary agency work occur in the area controlled and managed by the user company. The main text of Article 35(1) of the Act on the Protection, etc. of Temporary Agency Workers deems the user company to be an employer under Article 2(4) of the Industrial Safety and Health Act and applies the same Act to temporary agency work for the temporary agency worker." Thus, in relation to temporary placement of workers, a temporary work agency company imposes, in principle, the duty to prevent industrial accidents under the Industrial Safety and Health Act and to maintain the safety, health, and safety, etc. of the worker worker, thereby allowing the user company to be subject to criminal or administrative sanctions prescribed in the Industrial Safety and Health Act, etc.

In full view of the nature and contents of the relationship of work, direction, and order at the temporary placement of workers as above, it is reasonable to view that a user company, who has employed a temporary work agency, is entitled to direct and order a temporary agency worker on his/her own place of work, to bear the duty of protection or safety consideration for the temporary agency worker in relation to his/her continuous work, and the temporary agency worker enters into a temporary agency contract with the user company on such premise that the user company bears the duty of protection or safety consideration for the temporary agency worker, and the temporary agency worker also provides the user company with labor on the premise that the user company bears the above duty of protection or safety consideration for the temporary agency worker. Therefore, in relation to temporary placement of workers, there is an implied agreement between the user company and the temporary agency worker on the fact that the user company bears the duty of protection or safety consideration for the temporary agency worker, and therefore, even in cases where the user company did not directly conclude the employment or labor contract with the user company, the user company may claim damages for violation of the duty of protection or safety consideration for the user company based on the aforementioned implied agreement (see, 2013.6.

In addition, where a person permits another person to use his/her name in connection with a certain business, if the business is in an internal relationship with another person, and even if the business is not an employee of the nominal owner, the business is the business of the nominal owner in a relationship with the outside, and since there is no difference between the other person’s expression of the employee of the nominal owner, if the permitted person causes damage to another person by intention or negligence in the course of performing his/her duties, the person who permits the use of his/her name shall be liable to compensate for such damage (see, e.g., Supreme Court Decision 201Da3658, Aug. 21,

2) Determination

According to the above facts and the above evidence, Defendant C was dispatched to the temporary work agency position of Plaintiff A to have the Plaintiff A engage in the manufacture of smartphone pressing, and maintained the direction and supervision relationship, such as paying wages. Defendant D and E were in the position of the user company or user by directly ordering the Plaintiff A to work and organizing work duties with the Plaintiff. Accordingly, Defendant C, D and E bears the duty of protecting Plaintiff C, and Defendant F bears the duty of care or safety care with respect to Plaintiff B.

Furthermore, comprehensively taking account of the following circumstances acknowledged by the evidence as seen earlier, the Defendants are liable for nonperformance of their duty to protect the Plaintiffs and tort liability (Article 35(2) of the Act on the Protection, etc. of Temporary Agency Workers, and Article 5(1) of the Industrial Safety and Health Act). Accordingly, the Defendants are liable for compensating the Plaintiffs for damages arising therefrom ( Defendant D is merely the nominal owner, and thus, is not liable for damages. However, even if the nominal owner is the nominal owner, Defendant E cannot be exempted from the liability for compensating for damages insofar as he intentionally or negligently causes damage to other persons while performing his duties).

(1) Where a worker engages in the business of handling harmful substances subject to control at an indoor place of work, the business owner shall install a facility or a national air exhauster to sealed the source of gas, steam or dust emitting harmful substances subject to control at the relevant place of work, and where the worker is required to engage in a work of handling harmful substances subject to the installation of facilities subject to control, he/she shall inform the worker of the harmfulness, etc. before he/she places his/her work on the part of the worker; and where the worker is required to engage in a work of handling harmful substances subject to the installation of facilities subject to control, he/she shall ensure that the worker is provided with an air exhauster or air exhauster and wear an air exhauster; and 2. Where the worker handles harmful substances subject to the control of skin divers or corrosion, he/she shall ensure that the worker is equipped with drugs subject to control and wear such drugs by paying a warning when the worker performs a duty of spreading hazardous substances subject to control.

② 그럼에도 불구하고 피고들은 1, 2사업장에서 ① 관리대상 유해물질인 메틸알코올을 취급하는 작업장에 국소배기장치를 설치하지 않았고, ㉡ 메틸알코올 취급 근로자들에게 유해성 등을 주지시키지 않았고, Ⓒ 방독마스크 등 보호구를 지급 및 착용하도록 하지 않았으며, ê 메틸알코올 소분작업을 하는 근로자들이 사용할 수 있는 보호복 보호장갑 보호장화 및 피부보호용 바르는 약품을 갖추어 사용하도록 하지 않았고, ① 메틸알코올 취급 근로자들에게 보안경을 지급하고 착용하도록 하지 아니하였다.

③ Defendant E was indicted of violation of the above Occupational Safety and Health Act and violation of the Act on the Protection, etc. of Temporary Agency Workers in relation to the Plaintiff’s disaster, and the judgment of suspension of execution three years and 80 hours of community service was finalized on July 8, 2017. [In Incheon District Court 2016Dadan6913, 2017Kadan 1618 (merged), Defendant F’s husband and the actual business owner of Defendant F’s two places of business, the judgment of suspension of execution three years was finalized on the two years of imprisonment on October 28, 2017 [In Incheon District Court 2016Dadan2960, 2016Ma3363 (Consolidated), Incheon District Court 2017No8888]

④ The symptoms, such as the fall of food, the fall of eyesight, and the pulmonal difficulty, expressed by the Plaintiff, correspond to the unique symptoms caused by ethyl alcohol addiction. The Korea Labor Welfare Corporation recognized the Plaintiffs’ occupational disease around October 2016.

B. Limitation on liability

The defendants asserts that the responsibility of the defendants should be limited to 70% in consideration of the plaintiffs' negligence and the background of the occurrence of the accident of this case.

However, in full view of the circumstances such as the fact that the plaintiffs did not receive a notice of their handling materials, the defendants violated their obligation to take health measures to prevent health disorder, and they did not inform the plaintiffs of the risks of their work, and there was no appropriate protective goods, and seven real-name accidents occurred in the same workplace over the period of 2014-2016, and two accidents occurred at the first and second workplaces of the defendants at intervals of about one month, so it is difficult to see that the plaintiffs' disease was affected by the special transfer, and there was no evidence to see that the plaintiffs committed any error that could contribute to the occurrence of the disaster, the defendants' claim for limitation of liability cannot be accepted.

3. Scope of liability for damages

In addition to the following separate statements, the period of calculation shall be calculated on a monthly basis, but less than the last month and less than the last won shall be discarded. The current value calculation at the time of the accident shall be governed by the single discount method which deducts the intermediate interest at the rate of 5/12 per month. It shall be excluded that the parties’ arguments are not separately explained.

[Reasons for Recognition] A without dispute, Gap evidence Nos. 42, 43, 62-67, Eul evidence Nos. 2 and Eul evidence Nos. 2

A. Plaintiff A

1) Personal information

The term "basic matters" in the attached Table A calculation table of damages (the attached Table 1) shall be as shown in the column.

(ii) lost earnings;

A) Maximum working age: As the social and economic structure and living conditions of Korea are rapidly improved and developed, and the legal system is improved and improved by the age of 65, deeming that the maximum working age is more than 60 years and, barring any special circumstance, can be operated by the age of 65 (see Supreme Court en banc Decision 2018Da248909, Feb. 21, 2019).

B) Income: In case where a person engaged in an urban daily wage (22th day of the same month) has more ordinary wages than the income he/she had earned at his/her workplace, it is highly probable that he/she will be engaged in ordinary labor. Thus, barring any special circumstance, the ordinary wages at the time of closing argument at the time of the loss of labor ability is more than the income actually earned at the time of the loss

When a large amount of working wages is calculated, the daily income shall be calculated based on the selection of the relevant working wages (see, e.g., Supreme Court Decision 94Da3134, Feb. 28, 1995).

(c) The latter disability and labor capacity loss rate: 85 per cent of the permanent eyesight disorder due to the decline in both sides of eyesight;

The above plaintiff was appraised as 9.6% of visual disability rate, which constitutes 85% of the total disability rate in the list of evaluation of the loss of Mabrod Labor Capacity.

D) The amount of net income

When calculating the above plaintiff's actual income, the sum of KRW 566,560,148 as shown in Table 1.

(iii)an actual retirement allowance;

On the premise that the above plaintiff will receive retirement allowances of KRW 97,102,628 on the basis of monthly salary calculated on the basis of the monthly salary calculated on the basis of the urban daily wage applied during the year 2020, the above amount shall be calculated at the present price at the time of the accident and 31,796,045, which is an amount calculated by multiplying the rate of labor ability loss, by 85%, shall be claimed as the daily retirement allowance.

However, it is insufficient to recognize that the evidence submitted by the said Plaintiff alone was capable of working until the age of 65, and was able to receive retirement allowances of KRW 97,102,628. Furthermore, insofar as the said Plaintiff applied statistical income more than the said Plaintiff’s actual income, the claim for retirement allowances for the said Plaintiff is difficult to accept.

(iv) nursing expenses;

Determination as to whether the victim of a personal accident needs nursing after treatment and its degree is based on the contents of the disability after the diagnosis by a specialist, shall be a normative assessment conducted in light of empirical and logical rules by comprehensively taking into account all specific circumstances, such as the victim’s age, mental condition, level of education, and social and economic conditions (see Supreme Court Decision 98Da3089, Oct. 13, 1998). Thus, even if the determination on the part and degree of the doctor’s emotional result includes the doctor’s medical opinion, it is merely merely a presentation of the doctor’s medical opinion, not necessarily bound by the court’s opinion (see Supreme Court Decision 98Da46747, Dec. 22, 1998). In addition, it is not limited to the case where a person who, alone, is unable to lead a basic daily life by gaining a disability, and the degree of such person’s family members from time to time falls under the same subparagraph (see Supreme Court Decision 200Da19636, Apr. 16, 1966).

In full view of the aforementioned evidence and the purport of the entire pleadings, the aforementioned Plaintiff recognized each of the following three years after January 6, 2016, the date of the instant accident, as follows: eight hours per day for each adult male, and four hours per day for each adult male, from the next day until February 16, 2063, the date of the instant accident, until January 15, 2019, when the said Plaintiff appears to be able to be able to enjoy daily lives in the real name (see Supreme Court Decision 88Da21210, Apr. 10, 199; Supreme Court Decision 88Da21210, Apr. 10, 201); however, the amount of nursing expenses calculated accordingly are as indicated in Table 1, but recognize KRW 528,848,149, which the said Plaintiff seeks.

(v) a credit;

The above plaintiff is a person who has received temporary layoff benefits from the Korea Workers' Compensation and Welfare Service and 92,051,969 won for disability benefits (amount converted in lump sum).

In addition, according to the above evidence, Defendant E paid the above Plaintiff KRW 5,00,000,000, it shall be deducted from damages.

6) Consolation money

The grounds of this case, the degree of the disability suffered by the above plaintiff, the age, occupation and family relationship of the plaintiff, mental suffering experienced by the plaintiff, and all other circumstances shown in the argument in this case.

The consolation money shall be 60,000,000 won.

(vii) reorganization;

Therefore, Defendant C, D, and E jointly have a duty to jointly pay the above Plaintiff KRW 1,045,138,568 (i.e., daily actual income of KRW 566,560,148 + KRW 528,848,149 + KRW 13,217,760 - Lump-sum disability payment of KRW 92,051,969 - KRW 5,000 in advance payment of damages + KRW 60,000 in advance payment of damages + KRW 60,000 in damages + KRW 60,000 in damages) and damages for delay calculated at the annual rate of 5% as prescribed by the Civil Act from August 21, 2020, which is the date of this decision, which is deemed to have a reason to dispute the existence or scope of the above Defendants’ obligation to perform.

B. Plaintiff B

1) Personal information

The term "basic matters" in the attached Table 2 of the damages calculation table (the attached Table 2) shall be as shown in the column.

(ii) lost earnings;

A) Maximum working age: As the social and economic structure and living conditions of Korea are rapidly improved and developed, and the legal system is improved and improved by the age of 65, deeming that the maximum working age is more than 60 years and, barring any special circumstance, can be operated by the age of 65 (see Supreme Court en banc Decision 2018Da248909, Feb. 21, 2019).

B) Income: In cases where a person engaged in an urban daily wage (22th day of the same month) has more ordinary wages than the income he/she had earned at his/her workplace, it is highly probable that he/she will be engaged in general labor. Thus, barring any special circumstance, if the ordinary wages at the time of closing of argument are larger than the actual income at the time of loss of labor ability, barring any special circumstance, the daily income shall be calculated based on such choice (see, e.g., Supreme Court Decision 94Da3134, Feb. 28, 1995).

(c) The latter disability and labor capacity loss rate: 85 per cent of the permanent eyesight disorder due to the decline in both sides of eyesight;

The above plaintiff was appraised at 98% of visual disability rate, and this constitutes 85% of the total disability rate in the Mabroddra labor disability evaluation table.

D) The amount of net income

The calculation of the above plaintiff's actual income is as shown in Table 2, but it recognizes KRW 588,79,254 claimed by the above plaintiff.

(iii)an actual retirement allowance;

On the premise that the above plaintiff will receive retirement allowances of KRW 116,371,035 from the monthly salary calculated on the basis of the monthly salary calculated on the basis of the urban daily wage applied during the first half of the year 2020, the above amount shall be calculated at the present price at the time of the accident and 33,962,362, which is the amount obtained by multiplying the rate of labor disability by 85%, shall be the daily retirement allowance.

However, it is insufficient to recognize that the evidence submitted by the said Plaintiff alone was able to work until the age of 65, and that the said Plaintiff was able to receive retirement allowances of KRW 116,371,035. Furthermore, insofar as the said Plaintiff applied statistical income more than the said Plaintiff’s actual income, the claim for retirement allowances for the said Plaintiff’s actual income is difficult to accept.

(iv) nursing expenses;

The determination as to whether or not the victim of a personal accident needs nursing after treatment and its degree is based on the content of the disability revealed through an expert’s appraisal, and it is a normative assessment conducted in light of empirical and logical rules by comprehensively taking into account all specific circumstances, such as the victim’s age, mental condition, level of education, and social and economic conditions (see Supreme Court Decision 98Da30889, Oct. 13, 1998). Thus, even if the determination on the part and degree of the doctor’s appraisal result includes a doctor’s medical opinion, it is merely merely a presentation of a doctor’s medical opinion, not necessarily bound by the court’s opinion (see Supreme Court Decision 98Da46747, Dec. 22, 198). In addition, it is not limited to a case where a person who, alone, is unable to lead a basic daily life on account of a disability, the degree of such person’s family from time to time constitutes an adaptation, but also constitutes a case where such person’s family from time to time (see Supreme Court Decision 196Da296364, Feb. 196, 196.

In full view of the aforementioned evidence and the purport of the entire pleadings, each of the three years after February 2, 2015, the date of the instant accident, namely, that the said Plaintiff appears to have been able to enjoy daily lives in the real name of both bills from February 2, 2015 to February 1, 2018, and four hours per day from the next day to August 7, 2068, respectively, for an adult South-Nam (see Supreme Court Decision 88Meu21210, Apr. 10, 199). The amount of nursing expenses calculated accordingly is KRW 531,264,008, as shown in Table 2, as indicated in Table 2.

(v) a credit;

The above Plaintiff stated that the amount of temporary disability benefits received from the Korea Workers' Compensation and Welfare Service and disability benefits (amount converted into a lump-sum amount), KRW 95,538,158 (the above Plaintiff stated the lump-sum disability benefits as KRW 92,051,969 as Plaintiff A, but the calculation formula (82,717.02 won x 1,155 days for the final applied average wage) should be deducted.

6) Consolation money

The consolation money shall be determined as KRW 60,000,000 in consideration of the circumstances revealed in the arguments in this case, the background of this case, the degree of the disability suffered by the above plaintiff, the age, occupation and family relationship of the plaintiff, the mental suffering suffered by the plaintiff, and all other circumstances.

(vii) reorganization;

Therefore, Defendant F is obligated to pay to the above Plaintiff KRW 1,051,99,254 + KRW 588,79,254 + KRW 531,264,08 of the daily income + KRW 32,616,430 of the temporary disability compensation amounting to KRW 95,538,158 of the lump sum disability compensation + KRW 60,000 of the consolation money + KRW 60,000,00 of the date of the occurrence of the disaster, which is the date of the judgment of this case where there is a reason to dispute the existence or scope of the above Defendants’ performance obligation from February 2, 2015 to August 21, 2020; and damages for delay calculated at the rate of 12% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which is the date of the judgment of this case where the Defendants had a reason to dispute the existence or scope of the performance obligation.

4. Conclusion

The plaintiffs' claims are accepted within the scope of each recognition, and each remaining claims are dismissed.

presiding judge, judge Park Jae-sung

Judges Dooon

Judge Song Ho-hun

1) Industrial machinery which can process precise machinery and metal materials according to the numerical value in which computers were entered in advance.

A person shall be appointed.

A person shall be appointed.