The case holding that since the lessor cannot be deemed to have provided labor for the purpose of receiving wages from the construction company merely because he/she worked in accordance with the direction of the construction company, which is the lessee by driving a sofacing machine in accordance with the terms of the lease contract, the above driver of the sofacing machine constitutes "third party" under Article 54 (1) of the Industrial

The case holding that since the lessor cannot be deemed to have provided labor for the purpose of receiving wages from the construction company merely because he/she worked in accordance with the direction of the construction company, which is the lessee by driving a sofacing machine according to the terms of the lease contract, the driver of the above sofacing machine shall be deemed to be a "third party" under Article 54 (1)

Article 54(1) of the Industrial Accident Compensation Insurance Act

[Plaintiff-Appellant] Plaintiff 2004Da48768 delivered on September 28, 2006 (Gong2006Ha, 1808)

Korea Labor Welfare Corporation

Defendant 1 and two others (Law Firm Vindication, Attorneys Jeon Jae-in et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na15832 delivered on November 22, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and determined that Defendant 1, the driver of the so-called digging season of this case, at the same time on lease of the above digging season, provided labor in subordinate relationship with the non-party corporation, the lessee, for the purpose of receiving wages, and thus, Defendant 1 cannot be deemed as a third party under Article 54(1) of the Industrial Accident Compensation Insurance Act, and therefore, the plaintiff cannot exercise the right to indemnity against Defendant 2, the owner of the so-called digging machines of this case, and Defendant 3, the insurer of the automobile insurance contract of this case as to the car digging machines of this case, as the act of Defendant 1 and Defendant 1.

However, this decision of the court below is not acceptable for the following reasons.

According to the records, Defendant 1 registered the digging ground of this case under the name of Defendant 2, who is the wife in a de facto marital relationship with himself, registered the business registration under the name of Defendant 2, and the non-party corporation leased the digging ground of this case from Defendant 1 and 2, and Defendant 1 operated the digging ground of this case pursuant to the lease agreement with the above company and performed work at the construction site of the above company. Thus, it cannot be deemed that Defendant 1 provided work for the purpose of receiving wages from the above company on the ground that Defendant 1 operated the digging ground of this case under the lease agreement and performed work at the direction of the above company as the lessee pursuant to the above company. Thus, Defendant 1 cannot be deemed as not constituting a third party under Article 54(1) of the Industrial Accident Compensation Insurance Act.

Nevertheless, as stated in its holding, the court below determined that Defendant 1 was an employee employed by the non-party corporation and thus, the above defendant did not constitute a third party stipulated in the above provision and rejected the plaintiff's claim for the compensation of this case against the defendants. The court below erred by misunderstanding facts in violation of the rules of evidence and misunderstanding the legal principles as to the third party stipulated in Article 54 (1) of the Industrial Accident Compensation Insurance Act, and it is obvious that such violation affected the judgment

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)