Plaintiff 1 and five others (Attorney Hong-ju, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

August 18, 2004

1. The disposition that the Defendant rendered against the deceased non-party 1 on February 14, 2003 on the part of the site pay for bereaved family benefits shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On January 16, 1993, while working for the New General Construction Co., Ltd., Nonparty 2 was under medical care on the part of Jan. 16, 1993 due to scarcity, etc., the treatment was terminated on June 30, 1995 and the disability grade No. 1 grade No. 8. Accordingly, Nonparty 2 was paid in advance for four years of disability compensation annuity (from July 1, 1995 to June 30, 1999) pursuant to Article 42(5) of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Act”). From July 1, 1999, Nonparty 2 died on November 27, 2002.

B. At the time of the deceased non-party 2’s death, the mother was the non-party 1 and his sibling. However, on December 2, 2002, the non-party 1 submitted a written claim for the lump-sum survivors’ compensation payment to the Defendant, and died on January 15, 2003, which was prior to the Defendant’s disposition.

C. Meanwhile, the deceased non-party 2 filed a claim for damages against the new comprehensive construction company, and received the payment of KRW 171,851,952 (the daily income of the above amount was 88,066,560, and the amount was deducted for 4 years of disability compensation annuity paid by the above deceased when calculating the above amount) from the above company. On February 10, 2003, the defendant received the above damages from the above company under Article 53 (1) 2 of the Industrial Accident Compensation Act, and separately notified the deceased non-party 2 of the decision on collection of KRW 68,85,550, which falls under the disability compensation annuity paid from July 1, 199 to November 30, 202, and notified the deceased non-party 1 of the fact that he had already died.

D. In addition, on February 14, 2003, the defendant appropriated the lump sum survivors' compensation benefits to be paid to the deceased non-party 2's bereaved family under Article 53-2 of the Industrial Accident Compensation Act from KRW 86,77,790 to the deceased non-party 2's bereaved family under Article 53-2 of the Industrial Accident Compensation Act, and notified the deceased non-party 2 of the decision to pay the remaining KRW 17,922,240 after appropriating the amount corresponding to the above disability compensation annuity which was unfairly paid by the deceased non-party 2 to the deceased non-party 2. (In light of Article 50 of the Industrial Accident Compensation Act and Article 10 of the Administrative Procedures Act, if the beneficiary of the bereaved family's benefits is deceased, the above part of the site benefits to the deceased non-party 1 shall affect the plaintiffs.)

E. After that, on May 26, 2003, Plaintiff 5 filed a request for review on the above partial payment, but was dismissed, the request was filed with the Industrial Accident Compensation Review Committee on October 17, 2003. On December 9, 2003, the above commission revoked the above partial site payment disposition on the ground that the claim for return of unjust enrichment equivalent to the disability compensation annuity paid by the deceased non-party 2 on or before February 14, 2000 was extinguished by prescription, and thus only the remainder can be collected.

F. The defendant paid an amount equivalent to KRW 11,612,680 for disability compensation annuity paid to the deceased non-party 2 from July 1, 1999 to February 14, 2000 according to the above judgment on February 24, 2004 (hereinafter referred to as the "instant disposition") to the plaintiffs (hereinafter referred to as the "instant disposition").

[Reasons for Recognition] Evidence Nos. 1 through 9, Evidence Nos. 1 through 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the deceased non-party 2's obligation to return unjust enrichment to the defendant is legitimate because the heir of the beneficiary who made unjust enrichment also succeeded to the beneficiary's obligation to return unjust enrichment to the defendant. Thus, the deceased non-party 2's obligation to return unjust enrichment to the defendant should be borne by the plaintiffs, who are the heir, under Article 53-2 of the Industrial Accident Compensation Act.

Accordingly, the Plaintiffs asserted that the bereaved family benefits under the Industrial Accident Compensation Act are aimed at ensuring the maintenance of livelihood for the bereaved family members, and the disability benefits are different in nature from the disability benefits, and that the disability compensation benefits paid to the employees under the proviso of Article 48(3) of the Industrial Accident Compensation Insurance Act cannot be deducted from the bereaved family benefits to be paid by the bereaved family members, but the instant disposition is unlawful after deducting unjust enrichment

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

If a beneficiary of the Industrial Accident Compensation Act has received insurance benefits unfairly, the defendant can appropriate the amount to be collected as unjust enrichment from the insurance benefits to be paid to the beneficiary of unjust enrichment pursuant to Article 53-2 of the Industrial Accident Compensation Act. In this case, if the beneficiary of unjust enrichment dies and the defendant is obliged to pay bereaved family benefits pursuant to Article 43 of the Industrial Accident Compensation Act, it is a question whether unjust enrichment can be appropriated from the beneficiary of unjust enrichment.

Article 55(2) of the Industrial Accident Compensation Act prohibits transfer or seizure of the right to receive insurance benefits under the Industrial Accident Compensation Act, such as the right to receive insurance benefits, which the employee has against the defendant or his/her bereaved family member’s entitlement to survivors’ benefits, is prohibited by set-off under Article 497 of the Civil Act. Therefore, even if the defendant is entitled to collect unjust enrichment from the employee under Article 53 of the Industrial Accident Compensation Act, the above unjust enrichment cannot be set-off from the insurance benefits to be paid to the employee. For the sake of facilitating the procedure for collecting unjust enrichment, Article 53-2 of the Industrial Accident Compensation Act provides that the amount of unjust enrichment can be appropriated as unjust enrichment from the insurance benefits to be paid to the employee. The legislative intent of Article 53-2 of the Industrial Accident Compensation Act, the survivor’s benefit under the Industrial Accident Compensation Act is to guarantee the minimum livelihood of the employee, and the right to receive insurance benefits and its nature are different from that of the employee’s survivor’s entitlement to survivors’ benefits to be paid to his/her bereaved family member.

Therefore, the instant disposition that the Defendant applied the amount of the obligation to return unjust enrichment (the above obligation was inherited to the deceased Nonparty 1, and was inherited to the deceased Nonparty 1) pursuant to Article 53 of the Industrial Accident Compensation Act against the Defendant by the deceased Nonparty 2, who is the bereaved family of the deceased Nonparty 2’s bereaved family benefits, and paid only the remainder of the bereaved family benefits to the Plaintiffs is unlawful.

3. Conclusion

Therefore, the plaintiffs' claims seeking the cancellation of the disposition of this case are reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

Judge Han-gu (Presiding Judge)