The case holding that the disposition imposing the employment insurance premium by applying the public notice of the labor ratio of the Minister of Labor applied to industrial accident compensation insurance when calculating the total amount of wages forming the basis for computing the final employment

In calculating the total amount of wages that are the basis for calculating the final employment insurance premium, the case holding that the disposition imposing the employment insurance premium by applying a public notice of the construction work ratio of the Minister of Labor applied to the industrial accident compensation insurance without any ground under Article 62 (2) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 6073 of Dec. 31, 1999) is unlawful, even though there is no express provision that Article 62 (4) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 6073 of Dec. 31, 199) shall apply mutatis mutandis to the above Act.

Article 56 (4) of the former Employment Insurance Act (amended by Act No. 6099 of December 31, 1999) (see current Article 13 (6)), Article 61 (see current Article 19 of the Act on the Collection of Insurance Premiums, etc. for the Employment Insurance and Industrial Accident Compensation Insurance) and Article 62 (2) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 6073 of December 31, 1999) (see current Article 13 (6) of the Act on the Collection of Insurance Premiums, etc. for the Employment Insurance and Industrial Accident Compensation Insurance)

Daegu Construction Co., Ltd. [Law Firm, Kim & Lee, Attorneys Han-ro et al., Counsel for the plaintiff-appellant-appellant]

Korea Labor Welfare Corporation

October 10, 2007

1. The part exceeding 58,383,195 won (25,115,165 won) among the disposition imposing the employment insurance premium for the year 199 against the Plaintiff on March 2, 2001 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit are assessed against the Plaintiff, and 1/10 are assessed against the Defendant, respectively.

In addition to the judgment in Paragraph 1, the part which exceeds 54,910,410 won (196,707,190 won) in the disposition of imposition of industrial accident compensation insurance fees for the year 1999 against the plaintiff on March 2, 2001 and the part which exceeds 3,082,830 won in the disposition of imposition of wage claim charges (1,092,820 won) shall be revoked, respectively.

1. Details of the imposition;

The following facts may be acknowledged by taking into account the following facts: Gap evidence 1-1-2, 3, A27, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 3-3, 4-5-1 through 4, Eul evidence 6, 7, and 8-2, Eul evidence 9-2, 10-3, Eul evidence 11-1 through 6, Eul evidence 1-2, 12-1-2, 13-1 through 6, Eul evidence 14-1 through 17, Eul evidence 14-2, 18, 19-1, and 2-2, respectively:

A. On March 200, the Plaintiff, a corporation, the main business purpose of which is the construction business, calculated on the basis of the method of the industrial accident compensation insurance premium for 1999 (hereinafter “industrial accident insurance premium for 1999”), the total amount of wages, which served as the basis for reporting and paying the wage bonds and employment insurance premium for 199 as stated in the attached Table 1’s “the details of final return and final settlement of accounts, such as industrial accident insurance premium for 1999” and the attached Table 2’s “the current status of payment of industrial accident insurance premium, etc. for 1999” (hereinafter “industrial accident insurance premium for 199”), and then reported and paid the total amount of wages to the Defendant, applying the pertinent insurance premium rate in total, KRW 638,983,510, the total amount of industrial accident insurance premium for 639,549

B. The Defendant settled the final premium of industrial accident insurance premiums, wage claim charges, and employment insurance premiums for the year 199, as stated in the attached Table 1 “the details of the final return and final settlement of the industrial accident insurance premiums, etc. for the year 199,” and notified the Plaintiff of the amount exceeding the amount of the final premium reported by the Minister of Labor pursuant to Article 62(2) of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 4826, Dec. 22, 1994; hereinafter “Industrial Accident Compensation Act”) and Article 62(2) of the former Wage Claim Guarantee Act (amended by Act No. 6100, Dec. 31, 1999); Article 8 of the former Wage Claim Guarantee Act (amended by Act No. 6099, Dec. 31, 199; hereinafter “Employment Insurance Act”) and Article 56(4) of the former Employment Insurance Act (amended by Act No. 4826, Dec. 31, 1998).

C. As seen in the table below, the Plaintiff is disputing the part of the final final premium settled by the Defendant, which exceeds “the amount calculated again by the method of “the total amount of wages in the process of the instant lawsuit + (foreign cost + labor ratio)” (hereinafter the final final premium imposition and notification settled by the Defendant, the part of the industrial accident insurance premium, wage claim charges, and employment insurance premium charges alleged by the Plaintiff is deemed to be “the imposition of the instant industrial accident insurance premium,” “the imposition of the instant wage claim charges,” “the imposition of the instant wage claim charges,” “the imposition of the instant employment insurance premium,” and “the imposition of the instant employment insurance premium,” respectively.

(unit: Won)

본문내 포함된 표 ？ 피고 정산 최종 확정보험료(A)(총 공사금액×노무비율) 원고 계산 확정보험료(B){직영노무비+(외주비×노무비율)} 원고가 다투는 금액(A-B) 산재보험료 751,617,600 554,910,410 196,707,190 임금채권부담금 4,175,650 3,082,830 1,092,820 고용보험료 83,498,360 58,383,195 25,115,165

D. Labor ratio in the instant notice is as follows.

- General construction works (A) - Total construction works 28%

- General construction works (B) - Total construction works 24%

· Heavy construction - Total construction 27%

- Railroad or track construction - Total construction 28%

· Time of enforcement: January 1, 1999 and December 31, 199

* The above labor ratio shall not apply to cases where it is possible to determine wages that are the basis for the calculation of insurance premiums as wages on the construction specifications, and where wages calculated according to the labor ratio exceed the contract amount, 90% of the contract amount shall be determined as wages.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In relation to the imposition of the instant employment insurance premium, the Defendant did not notify the Minister of Labor of the labor rate applicable to the calculation of the total amount of the wage, which serves as the basis for the calculation of the employment insurance premium, based on Article 56(4) of the Employment Insurance Act, and applied the instant public notice publicly notified by the Minister of Labor based on the Industrial Accident Compensation Insurance Act without any ground, thereby

(2) With respect to the imposition of industrial accident insurance premium and wage claim charges in this case, according to the Defendant’s “Guidelines on the Additional and Supplementary Adjustment of Construction Business in 96-97” (Evidence A26) on February 3, 1998, the total construction cost shall be determined based on the amount of the base for the pertinent year. However, the total construction cost shall be calculated by excluding the aforementioned amount of the fixed amount of insurance premium, the service cost, such as design, supervision, etc., the cost of production, the cost of installation of products, the cost of own construction, and the cost of land, site, site, and other expenses, which are deemed significantly unfair to be included in the total construction cost. However, the Defendant determined the omission or erroneous deduction of the necessary deduction items in violation of the above guidelines at the time of imposing industrial accident insurance premium and wage claim charges, and accordingly calculated the industrial accident insurance premium and wage claim charges. Accordingly, the industrial accident insurance premium in this case and wage claim charges in this case are unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Markets:

(1) Determination on the imposition of the instant employment insurance premium

(A) Article 56 of the Employment Insurance Act provides that the Employment Insurance Act provides that the amount calculated by multiplying the total amount of wages of the insured workers engaged in the relevant business by one half of the unemployment benefit premium rate, the amount calculated by multiplying the total amount of their wages by the employment security premium rate, the amount obtained by multiplying the total amount of wages of the insured workers engaged in the relevant business, the amount obtained by the amount obtained by multiplying the employment security premium rate, the amount obtained by the vocational ability development premium rate, the amount obtained by multiplying the total amount of wages of the insured workers engaged in the relevant business, the development and improvement of their vocational ability, the strengthening of the State’s vocational guidance and job placement functions, by the implementation of the benefits required for their unemployment, shall be collected as premiums, respectively.

(B) Article 56 (4) of the Employment Insurance Act provides that where it is difficult to determine the total estimated amount of wages or the total amount of wages pursuant to Articles 60 (1) and 61 (1) of the same Act, the total estimated amount of wages or the total amount of wages may be determined according to the labor ratio as determined and publicly notified by the Minister of Labor. As to the plaintiff's assertion that the labor ratio in 1999 for determining the total amount of wages, which serves as the basis for calculating the employment insurance premium, was not publicly notified based on Article 56 (4) of the same Act, the defendant does not clearly dispute this at oral proceedings, and the defendant

(C) Article 56(4) of the Employment Insurance Act provides that where it is difficult to determine the total amount of wages, which serve as the basis for calculating the employment insurance premium, the total amount of wages may be determined according to the labor ratio determined and publicly notified by the Minister of Labor. However, in calculating the total amount of wages that serve as the basis for calculating the finalized employment insurance premium for the Plaintiff in 1999, the Minister of Labor did not make a public announcement of the Minister of Labor based on the above provision, and otherwise, in the absence of express provision that Article 62(2) of the Industrial Accident Compensation Insurance Act shall apply mutatis mutandis under the Employment Insurance Act, without any ground, the instant public notice publicly notified by the Minister of Labor pursuant to the same provision is deemed unlawful (the instant public notice is applicable to industrial accident insurance as a public notice applicable to industrial accident insurance, but the total amount of wages of workers excluded from the employment insurance is not deducted, in light of the fact that the instant public notice is not applied to the computation of the finalized employment insurance premium for

(D) Therefore, the Plaintiff’s assertion on this part is with merit.

(2) Determination on the imposition of industrial accident insurance premium of this case and wage claim charges

In full view of the arguments in the evidence Nos. 10-1, 2, 3, 11-1 through 6, Eul evidence Nos. 12-1, 2, 13-1 through 6, Eul evidence Nos. 14-1, 14-1 through 17, Eul evidence Nos. 18, 19-1, 2, 2, 23, 24-25-1 through 38, each evidence Nos. 1, 19-2, 25-1, and 25-1 of Eul evidence Nos. 1, 1998 at the time of calculating the industrial accident insurance premiums and wage claim charges of this case, the defendant's assertion that "in accordance with the 96-97 final settlement and supplementation guidelines for construction business, the insurance premiums can be paid twice or after deducting the total amount of insurance premiums can not be included in the construction amount due to its nature, and the plaintiff's assertion that this part of this case's insurance premiums cannot be asserted otherwise.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-sung (Presiding Justice)