(영문) 서울행정법원 2006.8.16.선고 2006구합1760 판결

1. On November 23, 2005, the Defendant confirmed that the imposition of the industrial accident compensation insurance fee of KRW 66,340, 260, employment insurance fee of KRW 16,936, and KRW 180 against the Plaintiff is null and void.

2. The costs of lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation engaged in an information and communications construction business, electrical construction business, assembly of telecommunications and electronic equipment, etc., and mainly carries out electrical construction within the domestic military unit after receiving a subcontract from the U.S. A.S. company. On October 23, 2002, the Plaintiff entered into a subcontract between A and A company, with the U.S. company, with the construction cost for IMW A Cable Cables in the U.S. military unit (MWCATV) contracted by A in the U.S. military unit (hereinafter “instant construction”). The Plaintiff completed the said construction after concluding the subcontract with the U.S. company.

B. On November 23, 2005, when the original contractor entered into a subcontract with a domestic construction company as a foreign company, the Defendant: (a) deemed that a domestic construction company, regardless of a contract relationship, entered into a contract with a foreign company, becomes an industrial accident insurance company as a contractor; and (b) imposed a disposition on the Plaintiff regarding the final premium of the industrial accident insurance (hereinafter referred to as “industrial accident insurance”) 60,30, 330, 66, 340, 930, 666, 39, 260, 15, 396, 540, 16, 539, 640, 16, 936, 180, 180 (hereinafter referred to as “instant disposition”).

【Unstrifed Facts, Gap 1’s evidence 1-2, and Eul 3’s evidence

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Under the former Industrial Accident Compensation Insurance Act and the Employment Insurance Act, and the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter referred to as the "Act"), the original contractor shall be deemed to be the business owner if the business is carried out under several contracts, but the original contractor shall be deemed to be the subcontractor only when the defendant approves the payment of insurance premiums upon the application of the original contractor. The plaintiff is the subcontractor if the business is carried out under a contract with A, and there was no written contract for the payment of insurance premiums between A and A, and there was no application for insurance coverage of the original contractor. Accordingly, the disposition for the collection of insurance premiums against the plaintiff even though the plaintiff was not a policyholder under the provisions of the relevant Acts and subordinate statutes, and thus, the defect is serious and apparent and null and void.

(2) The Defendant’s disposition of collecting premiums retroactively applying the performance records of construction work in 2002, 2003, and 2004 to November 23, 2005 is unlawful as it violates the principle of proportionality because the Defendant’s private interest, such as property rights and freedom of business, which are infringed on the Plaintiff’s achievement rather than the public interest that the Defendant intended to achieve is superior to the public interest that the Defendant intended to achieve.

(3) The Defendant did not collect the premium for a long time, and the Plaintiff purchased the insurance policy.

Although the report was rejected by the defendant, and since around 2000, the plaintiff was not notified that he would be subject to insurance coverage because he did not know that he would be subject to insurance coverage. Thus, the disposition of this case is unlawful because it violates the principle of trust protection.

(b) Relevant statutes;

Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (amended by Act No. 7706 of December 7, 2005)

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. the term “insurance” means the employment insurance under the Employment Insurance Act, or the industrial accident compensation insurance under the Industrial Accident Compensation Insurance Act;

4. The term "original contractor" means a person who has contracted for the first time when a project is carried on through several tiers of subcontracting: Provided, That where the ordering person directly carries on a part of the project, the ordering person shall be considered as a head of raw water under this Act;

5. The term "contractor" means a person who conducts the whole or part of a business by a contract with the original contractor, and a person who conducts the whole or part of a business by a person who is awarded a contract with the said original contractor;

Article 5 (Insurer)

(1) The owner and workers of a business subject to the Employment Insurance Act shall naturally become policyholders of the employment insurance under the Employment Insurance Act (hereinafter referred to as “employment insurance”).

(3) The owner of a business subject to the Industrial Accident Compensation Insurance Act shall naturally become a policyholder of the industrial accident compensation insurance under the Industrial Accident Compensation Insurance Act (hereinafter referred to as "industrial accident insurance").

Article 9 (Blanket Application to Contract Businesses)

Where a construction business and other business prescribed by the Presidential Decree are carried on through several contracts, the original contractor shall be deemed the business owner to whom this Act applies: Provided, That where approval is obtained from the Corporation under the conditions as prescribed by the Presidential Decree, the subcontractor shall be deemed the business owner to whom this Act applies.

Addenda (No. 7047, December 31, 2003)

Article 4 (Special Cases concerning Report on Establishment of Insurance Relationship by Subcontractors) Where any subcontractor referred to in the main sentence of Article 9 (5) of the former Employment Insurance Act or the main sentence of Article 9 (1) of the Industrial Accident Compensation Insurance Act, as at the time this Act enters into force, files a report on the establishment of the insurance relationship under Article 11, he/she may submit a report on the establishment of the insurance relationship not later than February 15, 2005, notwithstanding

Enforcement Decree of the Act on the Collection of Insurance Premiums for Employment Insurance and Industrial Accident Compensation Insurance

Article 7 (Blanket Application to Contract Businesses)

(1) "Construction business and other business prescribed by Presidential Decree" in the main sentence of Article 9 of the Act means construction business.

(2) The approval of the Corporation as prescribed in the proviso of Article 9 of the Act shall be granted only when the subcontractor is the owner of the business as prescribed in Article 6 (1).

(3) Where a subcontractor intends to obtain approval from the Corporation pursuant to the proviso to Article 9 of the Act, the original contractor shall enter into a written contract with a subcontractor for taking over the payment of sewage and insurance premiums, and file an application therefor with the Corporation within fourteen days after the commencement of subcontracted works.

Addenda (No. 18574, October 29, 2004)

Article 3 (Transitional Measures on Approval of Subcontractors) (1) Where a subcontractor obtains approval of the Corporation pursuant to Article 7-2 of the Enforcement Decree of the Employment Insurance Act and Article 14 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act prior to the enforcement of this Decree, where the subcontractor continues to engage in construction business even after the enforcement of this Decree, the subcontractor shall be deemed to have obtained approval of the Corporation referred to in Article 7 of this Decree for the business owner who carries on construction business, and the business owner who carries on other businesses shall be deemed to have reported the insurance relationship pursuant to

(2) Notwithstanding the provisions of Article 7 (2), until December 31, 2006, approval of a subcontractor shall be granted only when the subcontractor is a person whose construction amount is not less than 100 million won and who is the business owner provided for in Article 6 (1).

Article 4 (Transitional Measures concerning Application for Approval of Subcontractors by Business Owners) In cases of a grade of sewage that has commenced for subcontracted works before this Decree enters into force, an application for approval of the owner of the subcontractor's projects shall be filed with the Corporation within 14 days from the enforcement date of this Decree, notwithstanding Article 7 (3).

Industrial Accident Compensation Insurance Act (amended by Act No. 7049 of December 31, 2003)

This Act shall apply to all businesses employing workers: Provided, That this shall not apply to any business prescribed by Presidential Decree in consideration of the risk rate, size, place of business, etc. of the business.

Article 7 (Insurer)

(1) The owner of a business to which this Act applies, shall automatically become the insured of the industrial accident compensation insurance (hereinafter referred to as the “insurance”): Provided, That this shall not apply to the owner of a business to which this Act is applicable under the proviso of Article 5.

Article 9 (Blanket Application of Contract and Same Business)

(1) Where a business is carried on by several contracts for work, the original contractor shall be considered as the main business to which this Act applies: Provided, That where the original contractor has a subcontractor take over the payment of premiums by a written contract, and the Korea Labor Welfare Corporation approves it upon a request of the subcontractor, the subcontractor shall be considered as the owner of the business to which this Act applies.

Employment Insurance Act (amended by Act No. 7048 of December 31, 2003)

Article 9 (Insurer)

(1) The business owner and workers shall automatically become the insured: Provided, That the business owner and workers stipulated in the proviso of Article 7 and the workers excluded from the application of the provisions of Article 8 shall be excluded.

(5) In the event that a business is carried on by several contracts for work, the original contractor shall be the business owner to whom this Act applies: Provided, That if the original contractor, by a written contract, has a subcontractor take over the payment of premiums, and the Minister of Labor approves, upon a request of the original contractor, the subcontractor shall be regarded as the business owner to whom this Act applies. The Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 18911, Jun. 30, 2005)

Article 7 (Submission of Materials concerning Subcontractors by Original contractor) A subcontractor who becomes a business owner pursuant to the main sentence of Article 9 (5) of the Act shall submit to the Minister of Labor the materials concerning the subcontractor who is obligated to report qualifications for insurance pursuant to Article 13 (2) of the Act within fourteen days after the subcontract is executed.

If the original contractor desires to obtain the approval under the proviso of Article 9 (5) of the Act, he shall apply to the Minister of Labor for the commencement of subcontracted work within fourteen days from the commencement date of the subcontracted work.

C. Determination

(1) In imposing insurance premiums, etc., the interpretation of relevant Acts and subordinate statutes is to be interpreted as an interpretation of the law, and it shall not be extensively or analogically interpreted without any justifiable reason. Article 9 of the Act provides that where construction business, etc. is conducted through several contracts, the original contractor shall be deemed as the business owner subject to the Act: Provided, That where the defendant has obtained approval as prescribed by the Presidential Decree, the subcontractor shall be deemed as the business owner subject to the application of this Act. According to the above provisions of the relevant Acts and subordinate statutes, the collection of industrial accident insurance premiums and employment insurance premiums shall be made between the original contractor and the subcontractor, and it is evident that the original contractor cannot be imposed on the subcontractor unless the defendant files an application for the payment of insurance premiums with the original contractor. Furthermore, it is evident that the original contractor becomes a foreign company, as in the instant case of this case, 20th, and the domestic company becomes a subcontractor and thus, it shall not be deemed that the original contractor has any relationship with the original contractor, which is an industrial accident insurance premium of this case, and thus, it shall not be considered as an industrial accident insurance premium of this case.

(2) The Defendant asserts that the instant construction work performed by the Plaintiff is a matter of transfer of the law to grant the Plaintiff management obligations arising from the instant construction work to the industrial accident insurance company and employment insurance company due to inevitable circumstances where the Plaintiff is bound to be subject to the management and liability of the instant construction work except the Plaintiff. Thus, the Plaintiff shall comply with the collection and disposal of the instant insurance premium unless it goes beyond the reasonable scope. The Plaintiff’s act of the Plaintiff seeking to go beyond his/her employees’ compensation liability to other subscribers or the citizens of the Republic of Korea would be flick toward realizing the advancement of our social welfare, and thus, it cannot be paid. However, in the event that the original contractor is a foreign company, the subcontractor, who is a domestic company, becomes the insurer of the industrial accident insurance company, cannot be viewed as having a separate obligation or legal obligation under the preparation and management of industrial accident and employment insurance.

(3) Accordingly, this case’s disposition imposing industrial accident insurance premiums and employment insurance premiums on the Plaintiff, a subcontractor, is a disposition that is not based on the law, and its defect is significant and apparent and invalid. Therefore, without considering the remaining arguments of the Plaintiff, the Plaintiff’s above assertion is with merit.

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.