Plaintiff (Attorney Hwang Young-chul, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

October 23, 2008

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of correction and establishment of the type of industrial accident compensation insurance business against the plaintiff on March 21, 2007 shall be revoked.

1. Details of the disposition;

[Evidence] Each entry in Gap 1, 3, 4-1 to 3, 5, 6, 7, 6-1 to 3, 7-1 to 4, 8

A. On September 1, 200, as a temporary work agency business operator, the Plaintiff dispatched 6 security services and 2 workers engaged in cleaning services to the non-party 1 corporation, which is a synthetic resin manufacturer, to automatically extend the contract period on one-year basis, unless the termination notice is given. The Defendant used the Plaintiff’s type of business to calculate the Plaintiff’s industrial accident compensation insurance premium as an integrated business of industrial accident compensation insurance premium rates (hereinafter “Insurance Premium Collection Act”) under Article 14(3) of the Employment Insurance and Industrial Accident Compensation Insurance Collection Act (hereinafter “Insurance Premium Collection Act”) and Article 13 of the Enforcement Decree of the same Act, and imposed insurance premium on the Plaintiff by applying the type of business for calculating the Plaintiff’s industrial accident compensation insurance premium rate table (hereinafter “Insurance Premium Collection Act”) under Article 90101 of the Enforcement Decree of the same Act, and received the relevant insurance premium from the Plaintiff.

B. However, on March 6, 2001, the Plaintiff entered into a contract on the dispatch of workers (products, packaging and shipping) with Nonparty 1 Company and dispatched 43 workers of production services. As the Plaintiff’s business type according to the insurance premium rate table is different from two or more different business places (comprehensive management business of synthetic resin manufacturing business and building, etc.) under Article 14(3) of the Insurance Premium Collection Act and Article 14 of the Enforcement Decree of the same Act, the Plaintiff’s business type was changed into a synthetic resin manufacturing business with a large portion of workers among them.

C. After that, the Plaintiff and Nonparty 1 Company terminated on April 19, 2002 the contract on the temporary placement of workers for production services with Nonparty 1 Company. At the time of the Defendant’s investigation on the business type conducted around September 2002, the Plaintiff confirmed that only seven workers for security services are dispatched to the Defendant at the time of the investigation on the business type conducted by the Defendant, and on the basis of this, the Defendant imposed industrial accident compensation insurance premiums on the Plaintiff on the premise that the business type in the Plaintiff’s premium rate table corresponds to the security business that purely provides security services only (90502).

D. However, after October 16, 2006, the Plaintiff did not report the establishment of the insurance relationship to the Defendant even if Nonparty 2, a route cargo transport business operator, dispatched Nonparty 3 to Nonparty 2, a cargo transport business operator, but did not report the establishment of the insurance relationship. The Defendant confirmed the fact that Nonparty 3 was dispatched not only seven employees of security service but also two employees of cleaning service workers to Nonparty 1 corporation after April 2002, in fact, when Nonparty 3 applied for medical care benefits on the truck door of January 22, 2007 during the process of investigating the accident when Nonparty 3 suffered injuries and applied for medical care benefits to the Defendant, but also the Plaintiff was dispatched to the Defendant.

E. Accordingly, on March 21, 2007, the Defendant corrected the type of business related to the Plaintiff’s business in the premium rate table to the comprehensive management business of buildings, etc. (901) and applied the same retroactively as of April 20, 2002. Furthermore, in relation to the business place of the non-party 2 stock company, the Defendant applied the route cargo transport business (50301) in accordance with the premium rate table to the business place of the non-party 2 stock company and taken ex officio measures for industrial accident compensation insurance formation (hereinafter “instant disposition”).

F. On June 12, 2007, the Plaintiff appealed against the instant disposition and filed an administrative appeal with the Minister of Labor, but the notification of the change of business type and the establishment notification of the insurance relationship were dismissed on the ground that there was no disposal nature (However, since the change of the business type in the insurance premium table leads to the change of the insurance premium rate and the obligation of the business owner to report and pay specific insurance premiums accordingly, the establishment of the insurance relationship upon the occurrence of the business owner's obligation to pay insurance premiums may directly affect the business owner's rights and obligations, and thus, the disposal nature is recognized, and it cannot be deemed as a prior procedure to establish and determine the business owner's obligation to pay

2. Whether the instant disposition is lawful

A. Whether the business type correction of the non-party 1 corporation's place of business is legitimate

(1) The plaintiff's assertion

Since the plaintiff is dispatched to the non-party 1 corporation as security service workers and cleaning service workers, the defendant constitutes a case where two or more different businesses are conducted at one place of business pursuant to Article 14(3) of the Insurance Premium Collection Act and Article 14 of the Enforcement Decree of the same Act, and the kind of business with a large portion of security service is applied, but the plaintiff erred in the plaintiff's business type as a comprehensive management business of the building, etc. In addition, even if the plaintiff's business type pertaining to the non-party 1 corporation should be viewed as a comprehensive management business of the building, etc., the defendant issued a disposition to correct the business type retroactively without any administrative guidance to the plaintiff who did not know the situation. Thus, the part concerning the correction of

(2) Determination

Pursuant to Article 14(3) of the Insurance Premium Collection Act and Article 13 of the Enforcement Decree of the same Act, the premium rate table is set separately for each type of business as a public notice of the Ministry of Labor pursuant to Article 14(3) and Article 13 of the Enforcement Decree of the same Act. A temporary work agency business that provides security services and cleaning services concurrently shall be included in the scope of the comprehensive management

Therefore, since the plaintiff's business type for the non-party 1 corporation's business place, which is dispatched both security service workers and cleaning service workers, falls under one business type, which is a comprehensive management business of buildings, etc. conducted in one business place, there is no room to apply Article 14 (3) of the Insurance Premium Collection Act and Article 14 of the Enforcement Decree of the same Act to the case where two different businesses are conducted in one business place, and the industrial accident compensation insurance is applied to the case where the plaintiff's business for the non-party 1 corporation is provided at one business place, and since the business type is not separated by each specific business place, it is not likely that the business type is applied separately by each service and by each comprehensive management business such as building

In addition, it is reasonable to view that the Defendant’s retroactive correction of the business type to the Plaintiff’s non-party 1’s business establishment was a measure taken by the Defendant to correct the business type that was erroneously applied due to the Plaintiff’s false statement on the actual condition of temporary placement of workers against the non-party 1 corporation at the time of the investigation into the Plaintiff’s business type on September 2002, and that the Plaintiff was aware of all the above circumstances in the course of investigation for correction of the business type. The administrative guidance is a non-power effect that seeks to achieve administrative purposes with the Plaintiff’s voluntary cooperation, and it cannot be deemed that the Defendant’s duty to provide administrative guidance related to the application of the business type is enforced. In full view of the above circumstances, the Defendant’s failure to provide the Plaintiff with administrative guidance on the application of the business type cannot constitute a defect

Therefore, the plaintiff's above assertion is without merit.

B. Whether separate application of the insurance relationship to the non-party 2's workplace is unlawful

(1) The plaintiff's assertion

The defendant, as long as the business place of the non-party 1 is not separated by the type of business, the business place of the non-party 2 corporation shall not be separated from the business place of the non-party 1 corporation. However, the defendant lost consistency in the business place of the non-party 2 corporation by applying the route cargo transport business separately from the business place of the non-party 1 corporation. In the defendant's establishment of the industrial accident compensation insurance relationship pursuant to Article 5 of the Labor Supply Business Guidelines (A8) enforced on September 1, 1997, the business whose number of workers is less than five should be added to the main business, and only one number of workers dispatched to the business place of the non-party 2 corporation is applied to the lease of the business place of the non-party 1 corporation which is the plaintiff's main business and the insurance relationship was established separately from the business place of the non-party 1 corporation. Thus, the part of the

(2) Determination

Even if the same business is operated in the same place, the industrial accident compensation insurance premium rate shall apply to each workplace because it differs from the risk of disaster, and the insurance premium rate for calculating the industrial accident compensation insurance rate shall be set differently depending on the type of business at each workplace, and the type of the business is divided into the basis of the risk of disaster and the homogeneity of economic activities (see Article 5 of the Industrial Accident Compensation Insurance Act, Article 14(3) of the Enforcement Decree of the Insurance Act, Article 13 of the Enforcement Decree of the same Act, and the Industrial Accident Compensation Insurance Insurance Premium Rate

Therefore, it is reasonable to apply the industrial accident compensation insurance for each type of business on the basis of the place of business where the dispatched employee actually works. However, it is reasonable to apply the industrial accident compensation insurance for the workplace of the non-party 2 corporation, as seen earlier, because the workplace of the non-party 1 corporation is separate from the workplace of the non-party 2 corporation, it is legitimate to establish the insurance relationship for the workplace of the non-party 1 corporation

In addition, according to the statements in Gap 8 and Eul 9, the defendant's guidelines of application of labor supply business of September 1, 1997 are prepared to resolve contradictions excluded from the application of the Industrial Accident Compensation Insurance Act if some workers employed by the same business owner are dispatched to a workplace with less than five workers' number of workers at less than the same time when the industrial accident compensation insurance was not applied to less than five workers' number of workers, but it can be recognized that the industrial accident compensation insurance was abolished as of May 1, 2006 and was not applied at the time of the disposition of this case. Thus, the above guidelines cannot be used as the basis for defects in the disposition of this case.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as there is no reasonable ground.

Judges Jeong Il-il (Presiding Judge) and Park Il-young