[Attachment 1] Entry in the List of Plaintiffs (Law Firm Pulp, Attorney Yoon-young, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

November 12, 2015

1. The Defendant’s disposition to correct each average wage and to refuse to pay the difference in the amount of insurance benefits that the Defendant made to the Plaintiffs on the date of disposition listed in attached Form 2

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiffs are beneficiaries of insurance benefits under the former Industrial Accident Compensation Insurance Act (amended by Act No. 7049 of Dec. 31, 2003; hereinafter “Industrial Accident Compensation Insurance Act”) for those who received insurance benefits after being employed in coal mines and retired from office due to occupational accidents or who died after being recognized as a pneumoconiosis accident by the Defendant.

B. In accordance with Article 38(5) of the Industrial Accident Compensation Act, Article 26 of the Enforcement Decree of the Industrial Accident Compensation Act (amended by Presidential Decree No. 17977 of May 7, 2003), and Article 12 of the Enforcement Rule of the Industrial Accident Compensation Act (amended by Ordinance of the Ministry of Labor No. 193 of July 1, 2003), the Defendant paid the insurance benefits to the Plaintiffs by calculating the average wage of the Plaintiffs based on monthly labor statistics survey report at the time of diagnosis of pneumoconiosis, or by calculating the first average wage by the date of diagnosis after calculating the average wage as of the date of suspension or closure of the business (hereinafter referred to as “the first average wage or average wage calculated as above”) and applying this provision.

C. The Plaintiffs, instead of the special wage under the Industrial Accident Compensation Act, filed an application with the Defendant for the increase or decrease of the first average wage (hereinafter “the average wage under the Industrial Accident Compensation Act”) calculated by applying Article 19 of the former Labor Standards Act (amended by Act No. 6974, Sep. 15, 2003; hereinafter “the Labor Standards Act”); Article 4 of the Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158, Dec. 11, 2003); and Article 5 subparag. 3 and 5 of the Special Public Notice of the Calculation of Average Wage (amended by the Public Notice of the Ministry of Labor No. 2004-22; hereinafter “Special Notice of the Labor Standards Act”) in lieu of the special wage under the Industrial Accident Compensation Act, to rectify the amount of increase or decrease as the average wage

D. On the date of each disposition stated in attached Form 2, the defendant issued each disposition rejecting all the plaintiffs' applications on the ground that the special wage under the Industrial Accident Compensation Act should be deemed the first average wage of the plaintiffs pursuant to the "Guidelines for Calculation of Average Wage for Workers with Occupational Diseases" (hereinafter referred to as the "Guidelines"), which is an internal provision of the defendant as follows, on the grounds that there is no personal income data that can presume the average wage under the Framework Act on the Protection of Workers with Occupational Diseases, to the plaintiffs (hereinafter referred to as "each disposition of this case").

본문내 포함된 표 「직업병에 걸린 근로자에 대한 평균임금 산정 지침(2013. 4. 3. 시행 제2013-12호)」 III. 직업병 근로자에 대한 평균임금 산정방법 〈기본원칙〉 ◇ 1단계 : 근로기준법상 평균임금 산정 - (실제임금 자료가 있는 경우) 평균임금 산정사유 발생일 이전 3개월간 실제 지급된 임금 평균액을 직업병 진단일까지 증감 - (실제임금 자료가 없는 경우) 근로기준법상 평균임금 산정특례 고시 제5조를 적용하여 적정 금액을 산정한 후 직업병 진단일까지 증감 ○ (적정임금 산정) 근로자의 개인자료가 유사 사업장의 동일직종 근로자에 관한 임금관련 사항, 노동통계 등과 비교하여 적정금액 산정 - 실제임금 자료가 없더라도 본인의 소득증명, 지급받은 금품기록 등(고용부 평균임금 산정 특례고시 제5조 제2호와 제4호 자료) 개인자료 확인 * 소득금액증명원, 고용보험법·국민연금법·국민건강보험법상 신고금액 등 - 근로자가 소속되었던 사업장 소재지역의 업종과 규모가 동일하거나 유사한 사업장에서 당해근로자와 직종 및 경력 등이 유사한 근로자의 임금을 조사하고, 임금구조기본통계조사보고서상의 그 근로자의 경우에 해당하는 임금액과 가장 유사한 금액을 산정 * 다만, 임금을 확인할 수 있는 개인자료가 전혀 없는 경우에는 산정 불가 ◇ 2단계 : 산재보험법상 특례임금 산정 - (사업장이 존속하는 경우) 진단일을 기준으로 매월노동통계조사보고서에 따라 특례임금 산정 - (사업장이 휴폐업된 경우) 휴폐업일을 기준으로 매월노동통계조사보고서에 따라 금액 산정 후 직업병 진단일까지 증감 ◇ 3단계 : 비교하여 더 높은 금액을 평균임금으로 적용

E. The Plaintiffs were dissatisfied with each of the dispositions in this case and filed a request for review with the Board of Audit and Inspection pursuant to Article 43 of the Board of Audit and Inspection Act. On April 1, 2015, the Board of Audit and Inspection dismissed all of the Plaintiffs’ requests for review on the grounds that the instant guidelines and each of the dispositions in this case pertaining thereto are reasonable in light of the purpose of the average wage system and the special nature of

【Ground of recognition】 The fact that there has been no dispute, each entry of Gap evidence 1 through 4 (including each number), and the purport of whole pleading

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiffs' assertion

Where calculating the average wage to pay insurance benefits to workers for whom the diagnosis of occupational disease was determined after the business closure, the amount calculated by adding or decreasing the average wage under the Labor Standards Act as of the date of retirement by the time of the examination of occupational disease, and the amount calculated by calculating the special wage under the Industrial Accident Compensation Act as of the date of suspension or closure of business in accordance with the special provisions on the Industrial Accident Compensation Act, and then the higher of the two amount shall be determined as the average wage. In addition, when applying the special provision on the Labor Standards, the average wage under the Labor Standards Act shall be calculated by making maximum use of

However, the Defendant calculated the average wage under the Labor Standards Act according to the aforementioned special exception, irrespective of the amount calculated as the above estimated material by applying the special exception notice, if there is no evidence to presume the wages, even if there is no personal income data to verify the wages, and then, if there is no evidence to presume the wages, the special exception wage under the Industrial Accident Compensation Act shall be excluded from the beginning in accordance with the instant special exception notice, and the special exception provision under the Industrial Accident Compensation Act shall be applied only to the industrial accident law.

This is against the principle of equality by unfairly discriminating against an employee who has data on presumption of personal income that is not actually reflected in the calculation process of average wages under the Labor Standards Act, and violates the principle of equality, and is also against the purport of the special notice of the fundamental techniques to protect employees in a broad manner, and is also against the previous Supreme Court precedents.

Therefore, each of the dispositions of this case is unlawful because it rejected the plaintiffs' application seeking correction of the average wage calculated in a wrong manner as above, and all of them should be revoked.

2) The defendant's assertion

A) The Defendant determined the amount of insurance benefits by calculating special wages under the Industrial Accident Compensation Act in accordance with the Industrial Accident Compensation Act, which has a special status in relation to the provision of the industrial accident law, with all rights delegated by the Minister of Employment and Labor with respect to the operation of the insurance business under the Industrial Accident Compensation Act. However, a local labor office’s announcement by the Minister of Employment and Labor, which does not have any duty-related relationship, would violate the purpose of the Industrial

B) The Defendant already recognized the higher of the average wage under the Labor Standards Act after calculating the average wage and the special wage under the Industrial Accident Compensation Act, in cases where some of the materials can be presumed to have been sufficiently reflected in the purport and content of the notice of the special exception in the Labor Standards Act. However, if there is no data that can presume individual income, the notice of the special exception in the Labor Standards Act cannot be applied, thereby excluding it.

C) The purpose of the average wage system under the Labor Standards Act is not to recognize all statistical data as the average wage by comparing them with daily wage, but to find the highest amount as the average wage of the actual worker to the maximum extent possible. Therefore, in a case where there is no personal income data capable of verifying the wages at the time of employee’s retirement, the special wage under the Industrial Accident Compensation Act calculated in accordance with the monthly labor statistics survey report is applied as the average wage of the employee, and it does not go against the purport of the Labor Standards Act

D) As long as the internal criteria of an administrative agency are not objectively reasonable or unreasonable in a beneficial administrative act, such criteria should be respected as possible, each of the instant dispositions by the Defendant in accordance with the instant guidelines enacted by reflecting the techniques and the purport of the Industrial Accident Act are lawful.

(b) Related statutes;

[Attachment 3] The entry of relevant Acts and subordinate statutes shall be as follows.

C. Determination

(i) the background and priority order of the introduction of special provisions on industrial accident law;

According to Article 4 (2) of the Industrial Accident Compensation Insurance Act, the average wage, which is the basis for calculating various insurance benefits under the Industrial Accident Compensation Act, refers to the average wage determined by a supplementary technique, so in principle, the amount of industrial accident insurance benefits is calculated by applying the average wage under the Industrial Accident Compensation Insurance Act

However, even though the basic principle of the average wage calculation system intends to calculate the maximum standard of living of workers in order to ensure the worker's life faithfully, there is a problem that the purpose of the average wage system, which is to protect the worker by applying the average wage of the worker at the time of the diagnosis of the occupational disease, even if the worker was unable to provide normal labor due to the worker's occupational disease and was diagnosed as an occupational disease without receiving proper wages.

Accordingly, the special wage system under the Industrial Accident Compensation Act was introduced so that the average wage can be calculated and applied in accordance with the special provisions of the Industrial Accident Compensation Act, if it is deemed inappropriate to protect workers in order to supplement such problems. Therefore, in the process of determining the average wage, which serves as the basis for the amount of industrial accident insurance benefits, the average wage calculated in accordance with the special provisions of the Industrial Accident Compensation Act, is preferentially applied, and such average wage is less than the special wage under the Industrial Accident Compensation Act, only if it is lower than the special wage under the Industrial Accident Compensation Act, due

2) Issues of the instant case

As seen earlier, the special wage system under the Industrial Accident Compensation Act was introduced to supplement the problems of the average wage system under the Labor Standards Act. However, if there is no way to calculate the average wage under the Labor Standards Act, then there is no way to calculate the average wage under the Industrial Accident Compensation Act, there is no average wage itself under the Labor Standards Act compared with the special wage under the Industrial Accident Compensation Insurance Act, so the special wage

However, where the business is suspended or discontinued or where it is impossible to calculate the average wage for workers whose diagnosis of pneumoconiosis was determined after the worker retires, the special provisions on the Industrial Accident Compensation Act do not immediately apply, but the special provisions on the Industrial Accident Compensation Act shall apply only when it is inappropriate to protect workers, such as the amount calculated by finding a reasonable method of calculating the average wage by which the ordinary living wage of workers can be calculated conscientiously, and the increase or decrease of average wage in the average wage calculated by such method does not fall short of the amount obtained by the increase or decrease of the average wage in the amount of wages of the same kind in the labor statistics survey report as of the date of the worker's retirement, etc. (see Supreme Court Decisions 2005Du2810, Apr. 26, 2007; 201Du2545, Jan. 12, 2012).

Therefore, if it is possible to find a reasonable amount to be determined as an average wage under the Labor Standards Act through the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision

3) Determination (whether it is possible to calculate the average wage of the plaintiffs through the public notice of special cases on techniques)

The Special Provision on the Probation Act was enacted so that the chief of local labor office, who is delegated with the authority of the Minister of Employment and Labor (the former Minister of Labor), may determine and publicly notify the average wage pursuant to Article 19 of the Probation Act, and Articles 2 and 3 of the Enforcement Decree of the Probation Act, may determine and publicly notify the average wage. Even in cases where the total amount of total wages is unclear, the Special Provision on the Probation Act provides that an appropriate amount may be determined as the average wage by taking into account the materials prescribed in each subparagraph of Article 5 of the Special Provision on the Probation Act. As such, if the average wage cannot be calculated by the basic method prescribed in the Enforcement Decree of the Special Provision on the Probation technique and the Probation technique, it was enacted as the method of calculating the reasonable average wage that can calculate the ordinary wage of workers as true. Thus, Article 5 of the Special Provision on the Probation technique provides that it is difficult to calculate the average wage even if the method prescribed in Article 5 of the Special Provision

Therefore, even if the total wage of a worker is not clearly clear or there is no actual wage data, a reasonable amount shall be determined as an average wage by comparing and considering the following amounts calculated based on the individual income presumption data under Article 5 subparag. 2 and subparag. 4 of the above Special Provision and the comparative wage under subparag. 3, and labor statistics under subparag. 5, and the defendant's practice is not different.

However, even if the Defendant did not properly reflect the individual income, the Defendant calculated the amount under subparagraphs 2 and 4, and the amount under subparagraphs 3 and 5, which is the amount under subparagraphs 3 and 5, based on such data, and then recognized as the average wage of the amount under subparagraphs 3 and 5, out of the amount under subparagraphs 3, if the amount under subparagraphs 2 and 4, calculated based on the data under subparagraphs 2 and 4, which can be generally presumed to be close to the individual income, and the amount under subparagraphs 3 and 5, is higher than the amount calculated based on the data under subparagraphs 3 and 5. Therefore, even if the amount under subparagraphs 3 and 5, if the amount is lower than the amount under subparagraphs 3 and 5, there is no substantial difference between the amount under subparagraphs 2 and the amount under subparagraphs 5, reflecting the amount under subparagraphs 2 and 5 as the amount under subparagraphs 0, in such a case.

As such, ① the amount calculated through the data on presumption of individual income is not actually reflected in the calculation process of average wages under the Act on the Protection of Workers’ Income, and thus, it does not affect the final average wage determined. ② Therefore, even if there is no data on presumption of individual income, it can be sufficiently calculated by comparing only the amount under Article 5 subparag. 3 and the amount under subparagraph 5 of the Act on Special Cases concerning the Protection of Workers’ Income without substantial differences with the case where there is part of data on presumption of individual income. ③ If it is impossible to calculate the amount under Article 5 subparag. 2 of the Act on Special Cases concerning the Protection of Workers’ Income, there is no express provision excluding the application of Article 5, subparag. 3, and 5, and there is no reasonable and logical ground to accept such provision. ④ It is difficult to calculate the average wage solely on the grounds that the data under Article 5 need not be prepared with all of the data on the calculation process of the average wage under the Act on the Protection of Workers’ Income, and it is difficult to find that the data on the basis of special cases in the Act do not have any substantial effect on the average wage.

Meanwhile, the Defendant asserts to the purport that it is unfair to determine the average wage, which serves as the basis for industrial accident insurance benefits. However, as seen earlier, the average wage, which serves as the basis for industrial accident insurance benefits, is determined by the work method in principle, and the chief of a regional labor office is entitled to determine the average wage under the Labor Industry Act as above according to a lawful delegation. As such, the head of a regional labor office cannot be deemed unreasonable to determine the average wage pursuant to the relevant Acts and subordinate statutes. Furthermore, as the Defendant’s practice appears to reflect it by itself using the wage data owned by the Defendant’s employer, the Defendant’s aforementioned assertion is not a ground for excluding the application of Article 5 of the Notice of Special Cases concerning the

In addition, the Defendant asserts that the Defendant’s application of any of the criteria in the process of calculating the average wage is the Defendant’s discretion. However, whether to apply any of the average wage and the special wage under the Industrial Accident Compensation Act to any of the employees under the Labor Standards Act is a matter to be determined in accordance with the relevant statutes and the previous precedents and cannot be said to be the Defendant’s discretion. Even if the Defendant’s discretion is deemed to determine whether to apply the provision of Article 5 of the Special Public Notice on the Special Provision on the Work Techniques to any employee who has no personal income presumption data, as seen earlier, there is no reasonable ground to discriminate against the employee who has no personal income presumption data, and thus, excluding the application of the provision of Article 5 to any employee who has no such data

D. Sub-committee

Therefore, even if there is no data on presumption of individual income of workers, the Defendant shall calculate the average wage under the Labor Standards Act by reflecting the amount pursuant to subparagraphs 3 and 5 of Article 5 of the Special Provision on Labor Standards, and determine the amount by comparing it with the special wage under the Industrial Accident Compensation Act. Nevertheless, the Defendant, without such process, determined the special wage under the Industrial Accident Compensation Act as the average wage of workers, and pointed out this fact, and rejected each application of the Plaintiffs demanding correction of the average wage, each disposition

Meanwhile, even if the average wage is calculated on the basis of the Plaintiffs, there may also be cases where there is no reason to correct the average wage as it is lower than the special wage under the Industrial Accident Compensation Act. However, as the Defendant applied the method of calculating the erroneous average wage by applying the method of calculating the average wage to the Plaintiffs, there is no evidence to verify the difference between the average wage under the Labor Standards Act and the special wage under the Industrial Accident Compensation Act. Therefore, if the Defendant calculates the average wage under the Labor Standards Act by the method as seen earlier, and if there is a difference between the special wage under the Industrial Accident Compensation Act and the special wage under the Industrial Accident Compensation Act, all of the instant dispositions against the Plaintiffs are revoked.

3. Conclusion

Thus, each of the claims of the plaintiffs of this case is justified, and all of them are accepted.

[Attachment]

Judge So-young