[1] The meaning of "third party who becomes the other party to the exercise of the right to indemnity under Article 54 (1) of the Industrial Accident Compensation Insurance Act"

[2] In a case where a worker suffers from an occupational accident due to the act of an employee employed by the same employer, whether the above worker constitutes "third party" under Article 54 (1) of the Industrial Accident Compensation Insurance Act (negative)

[3] In relation to a victimized worker, if the same business owner is in the position of an insured person for industrial accident compensation insurance, but is not in the position of an insured person in relation to the perpetrator, whether the perpetrator constitutes "third person" under Article 54 (1) of the Industrial Accident Compensation Insurance Act (affirmative)

[4] Requirements and criteria for determining whether an industrial accident compensation insurance relationship is an employee

[5] The case holding that since it cannot be viewed as an employee under the Labor Standards Act in relation with the business owner who is the policyholder of the industrial accident compensation insurance, it is not an employee under the Industrial Accident Compensation Insurance Act, and thus, it constitutes a "third party" who is the other party to the exercise of the right to indemnity under Article 54 (1) of the same Act

[6] The case holding that Article 9 (1) of the former Industrial Accident Compensation Insurance Act does not apply to a construction company's mid-term use contract, on the ground that it appears to be close to a mid-term lease rather than a contract or labor contract, in case where the construction company would pay the usage fee per hour or per day whenever it is necessary for the construction project and the construction company leased the construction machine with its driver and proceeds work under the supervision of the construction company

[7] Where an industrial accident is caused by a joint tort committed by a policyholder and a third party, the scope of the Korea Labor Welfare Corporation may exercise the right to indemnity against the third party

[1] "Third party who becomes the counterpart to the exercise of the right to indemnity under Article 54 (1) of the Industrial Accident Compensation Insurance Act" refers to a person who has no relationship with the victimized workers and is liable for damages caused by tort against the victimized workers.

[2] Where a worker suffers from an occupational accident due to the act of the worker employed by the same business owner, the worker is excluded from the "third party who becomes the party to the exercise of the right to indemnity under Article 54 (1) of the Industrial Accident Compensation Insurance Act" because the worker has an industrial accident compensation insurance relationship with the victimized worker directly or indirectly with the business owner who is the insured.

[3] In relation to a victimized worker, if the same business owner is in the position of an industrial accident compensation insurance policyholder in relation to the victimized worker, but is not in the position of an insured in relation to the perpetrator, the perpetrator is a third person who is the counterpart to the exercise of the right to indemnity. In such a case, the result does not change even if the business owner is liable for the act of

[4] In order to constitute a worker who is recognized as an industrial accident compensation insurance relationship, it shall be recognized as a worker under the Labor Standards Act at the time of the accident, and whether the worker is a worker under the Labor Standards Act, regardless of the form of a contract, shall be determined depending on whether the worker provided labor to the employer

[5] The case holding that since it cannot be viewed as an employee under the Labor Standards Act in relation with the business owner who is the policyholder of the industrial accident compensation insurance, it is not an employee under the Industrial Accident Compensation Insurance Act, and thus, it constitutes a "third party" who is the other party to the exercise of the right to indemnity under Article 54 (1) of the same Act.

[6] The case holding that Article 9 (1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 6100 of Dec. 31, 1999) does not apply where a construction company shall pay the usage fee per hour or per day whenever necessary for the construction work, and if the construction company leased the construction machine with its driver and proceed with the construction work under the supervision of the construction company, such mid-term use contract seems to be close to the mid-term lease rather than the contract or labor contract.

[7] Where an industrial accident occurred due to a joint tort committed by the policyholder and the third party, the Korea Labor Welfare Corporation may not claim against the third party the proportion of the policyholder's fault to the third party, and specifically, the victim may claim against the third party only the difference after deducting the amount equivalent to the ratio of the policyholder's fault to the amount of damages to be compensated from the insurance benefits.

[1] Article 54 (1) of the Industrial Accident Compensation Insurance Act / [2] Article 54 (1) of the Industrial Accident Compensation Insurance Act / [3] Article 54 (1) of the Industrial Accident Compensation Insurance Act / [4] Article 4 (2) of the Industrial Accident Compensation Insurance Act, Articles 14 and 15 of the Labor Standards Act / [5] Articles 4 subparagraph 2 and 54 (1) of the Industrial Accident Compensation Insurance Act, Articles 14 and 15 of the Labor Standards Act / [6] Article 9 (1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 6100 of December 31, 199), Articles 618 and 64 of the Civil Act / [7] Articles 54 (1) and 55-2 of the Industrial Accident Compensation Insurance Act

[1] [2] Supreme Court Decision 2003Da33691 decided Dec. 24, 2004 (Gong2005Sang, 189) / [1] Supreme Court Decision 2003Da1307 decided Dec. 26, 2003 (Gong2004Sang, 221) / [1] Supreme Court Decision 85Da2429 decided Apr. 8, 198 (Gong1986, 759) (Gong198, 650) / [4] Supreme Court en banc Decision 97Nu1634 decided Dec. 26, 197 (Gong198, 4319) / [209Du97989 decided Apr. 26, 198 (Gong2998 decided Apr. 29, 199)

Korea Workers' Compensation and Welfare Service (Law Firm Rops, Attorneys Kim Jong-Nam, Counsel for defendant-appellant)

Kim Promotion et al. (Law Firm Vindication, Attorneys Park Jong-chul et al., Counsel for the plaintiff-appellant)

Seoul Southern District Court Decision 2003Da14212 Decided November 23, 2004

September 1, 2005

1. Of the judgment of the first instance, the part of the judgment against the Defendants ordering the Defendants to pay to each of the Plaintiff KRW 18,762,060 as well as 5% per annum from August 1, 2000 to September 22, 2005, and 20% per annum from the next day to the date of full payment. The part of the judgment against the Defendants is revoked, and the Plaintiff’s claim corresponding to that part is dismissed.

2. The defendants' remaining appeals are dismissed, respectively.

3. 30% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

1. Purport of claim

The defendants pay to each plaintiff 25,804,020 won with 5% interest per annum from August 1, 200 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to that part is dismissed.

1. Basic facts

The following facts may be recognized by gathering the purport of the entire pleadings from A1 to 8 (including various numbers), A11, A12, the testimony of a witness of the trial court, the testimony of a witness of the trial court, and the results of the examination of the defendant Kim Kim Promotion.

A. The Plaintiff is a corporation entrusted with industrial accident compensation business by the Minister of Labor pursuant to the Industrial Accident Compensation Insurance Act (hereinafter referred to as the "Industrial Accident Insurance Act"), and Defendant Park Hong is a person who engages in construction machinery rental business in the name of "three months", and Defendant Park Hong-si is employed by Defendant Park Hong-si and received monthly wages from Defendant Park Hong-si, thereby driving the Seoul-15-759 concrete pumps (hereinafter referred to as "the above pumps"), and Defendant Dongdong Fire Marine Insurance Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.") is an insurer who entered into an automobile insurance contract with respect to the above pumps.

B. As the original contractor of Sungnam Central Library and Women's Center located in 151-1, Sungnam-dong, 151-1, in Sungnam-si, the industrial accident compensation insurance business chain, the non-party Gangwon Construction Co., Ltd. (hereinafter referred to as "non-party company") subcontracted the above new construction works of reinforced concrete (hereinafter referred to as "the above new construction works") to the non-party Gangseo Construction Co., Ltd. (hereinafter referred to as "non-party company"), shall pay a certain amount of fees per hour or per day for the above construction works, and leased the above pumps from Defendant Park Hong-si, the driver of the company, along

C. On March 11, 200, Nonparty 1 and Nonparty 2 concluded a labor contract under which the daily wage is KRW 90,200 between Nonparty Company and Nonparty Company to work as a rain and concrete hole at the above construction site from March 11, 200 to the completion date of the above construction work, and accordingly, performed concrete building work at the above construction site.

D. At around 13:10 on March 15, 200, 200, when Defendant Kim Jong-soo was performing concrete typing work on the fourth rooftop of the library Dong at the above construction site, he was unable to move the ice of the above pumps operated by Defendant Kim Kim Kim-soo to the side by entering the finger iron, and at least 2 persons were unable to move the above ice, and he operated the above pumps with the above pumps to help Defendant Kim Jong-soo to help do so because the space of the above pumps was narrow, and caused the above ice to move the above ice. In this case, Defendant Kim Jong-soo was unable to properly look at the working condition, movement, and direction of the finger iron, and caused the left hand hand hand hand hand to be divided into the above son's left hand hand typ 2 (the above typ son's left hand typ typ) by continuing the above typ son's hand typ construction with the above son's hand typ.

E. The Plaintiff paid 5,808,880 won as temporary layoff benefits on May 8, 200 and June 19, 2000, 19,84,000 won as disability benefits on June 22, 200, and 151,140 won as medical care benefits on July 31, 200, respectively.

2. Liability for damages and occurrence of the right of indemnity;

(a) Liability for damages;

According to the above facts, despite the fact that Defendant Kim Promotion had a duty of care to pay attention to the working conditions, movements, and instructions of the finger iron while entering the above pumps, the above accident occurred due to the mistake that the left hand hand hand hand hand hand hand hand over of the finger iron continues to be caused by the above gate while it was under the above gate, so Defendant Kim Promotion is a driver of the above pumps, and the above gate Kim Kim is an employer of the defendant Kim Kim Promotion or operator of the Automobile Accident Compensation Act, and the defendant company is liable to compensate for the damage caused by the above accident as an insurer of the above pumps.

(b) Right to indemnity (whether it is a third party);

(1) The parties' assertion

(A) The plaintiff asserts that the above accident was caused by the negligence of promoting the defendant Kim, which is the driver of the above pumps, and the non-party company merely leased and used the above pumps from the defendant Park Hong-k, and that the above accident constitutes "disaster caused by the act of a third party" as stipulated in Article 54 (1) of the Industrial Accident Insurance Act.

(B) The Defendants asserted that: (a) the mid-term use contract between the non-party company and the defendant Park Hong-kick is not a mere mid-term lease, but rather a specific business that requires the use of the mid-term period with the driver; (b) the legal relationship is a labor contract rather than a lease; and (c) if the mid-term driver leased the mid-term period with the driver and had the lessee work under his/her supervision, he/she is not a direct employee of the lessee, the lessee is liable for the illegal act of the mid-term driver; (d) if the lessee is not a third party in the process of his/her work, the mid-term driver is not a third party in the same relationship with the worker; and (b) pursuant to Article 9 of the former Industrial Accident Insurance Act, if the tenant is not a third party, the primary contractor is deemed an employer subject to the Industrial Accident Insurance Act; and therefore, (e) it constitutes a labor contract between the non-party company and the defendant Park Hong-kick, and thus, there is no room for the plaintiff to establish the plaintiff's right to indemnity.

(2) Determination as to Defendants’ above (1) argument

(A) Article 54(1) of the Industrial Accident Insurance Act provides that "Where insurance benefits have been paid due to a disaster caused by a third party's act, the Service shall subrogate the third party of the recipient of the benefits to the extent of the benefits paid: Provided, That this shall not apply where two or more business owners, who are the insured, divide one business in the same place and conduct it in the same place, and a disaster has occurred due to the worker's act of different business owners." In this context, "third party" refers to a person who has no industrial accident insurance relationship with the victimized worker and is liable for damages caused by a tort against the victimized worker (see Supreme Court Decision 2003Da1307, Dec. 26, 2003).

(B) However, if a worker suffers from an occupational accident due to the act of an employee hired by the same business owner, the employee is a person having an industrial accident insurance relationship with the victimized employee directly or indirectly with the business owner who is the insured (see Supreme Court Decision 2003Da33691, Dec. 24, 2004). However, this is premised on the fact that the business owner is in the status of the insured with respect to all victimized workers, and all victimized workers are in the industrial accident insurance relationship with the victimized workers. However, in relation to the victimized workers, if the same business owner is in the status of the insured with respect to the victimized workers, but is not in the status of the insured, the perpetrator is the third person who is the other party to the exercise of the right to indemnity, and in such case, even if the business owner is liable for the employer's act, the result does not change (see Supreme Court Decision 2003Da33691, Dec. 26, 2003; 203Da36364, Apr. 29, 2002).

(C) In order to constitute an employee who is recognized as an industrial accident insurance relationship, the employee should be recognized as an employee under the Labor Standards Act at the time of the accident, regardless of the form of contract, and whether the employee constitutes an employee under the Labor Standards Act shall be determined depending on whether the employee provided labor in a subordinate relationship with the employer for the purpose of wages at the business or workplace (see Supreme Court Decisions 97Nu16534, Dec. 26, 1997; 98Da6084, May 8, 1998, etc.). In this case, the non-party company shall pay the user fee per hour or per day, and it is merely the fact that the non-party company leased the above pumps as a driver of the defendant Kim Hong, which was employed by the defendant Park Hong, and received monthly wages from the defendant Kim Hong, and therefore, the promotion of defendant Kim should not be deemed as an employee under the Labor Standards Act’s subordinate relationship with the non-party company or the Gangnam Construction Corporation.

(D) Therefore, insofar as Non-party company or Kangsan Construction Co., Ltd is not in the position of the insured against the promotion of defendant Kim, even if the non-party company or Kangsan Construction Co., Ltd is liable as an employer for the promotion of defendant Kim, it shall be deemed that it constitutes the above "third party". Thus, this part of the defendants' assertion is without merit (this part of the defendants' assertion, and even if it is alleged that the plaintiff's right to indemnity is not created by the application of the proviso of Article 54 (1) of the Industrial Accident Insurance Act, there is no dispute between the parties as to the business owner who is the insured at the time of the accident, and the above proviso is not applicable).

(3) Determination as to the Defendants’ above Defendants’ assertion

(A) Article 9(1) of the former Industrial Accident Insurance Act (amended by Act No. 6100 of Dec. 31, 1999), which was applied at the time of the above accident, provides that "if a business is conducted by multiple contracts, the original contractor shall be deemed the business owner to whom this Act applies." However, in full view of the testimony of witnesses at the trial, the results of the personal examination on the promotion of defendant Kim and arguments, the non-party company shall pay the user fee per hour or per day whenever necessary for the above construction, and the above pumps was leased from the defendant Park Hong-si, the driver of the above pumps, and accordingly, the fact that the above pumps was conducted under the supervision of the non-party company. From this perspective, the above used contract between the non-party company and the defendant Park Hong-si was close to the old Insurance Act, because one of the parties agreed to complete the completion of a certain day and the other party agreed to pay the remuneration to the contract, the above contract shall not apply to the labor contract or the remuneration of the other party.

(B) In addition, insofar as the subcontracting relationship between the non-party company and the defendant Park Hong-si is not recognized, even if the non-party company constitutes the subcontractor in relation to Gangnam Construction Co., Ltd., the original beneficiary, and even if the non-party company bears the employer's responsibility for the promotion of the defendant Kim Jong-si, it cannot be said that the promotion of defendant Kim Jong-, the direct tortfeasor, is excluded from the scope of the above "third party" based on Article 9 (1)

(C) Therefore, this part of the Defendants’ assertion is without merit.

C. Sub-committee

The plaintiff who paid industrial accident insurance benefits to the finger iron can exercise in subrogation the right to claim damages against the defendants within the limit of the amount of the insurance benefits pursuant to Article 54 (1) of the Industrial Accident Insurance Act.

3. Scope of the right of indemnity;

(a) Scope of damages sustained by the finger iron;

(1) Actual income

The loss from lost income caused by the accident in question is 23,01,899 won calculated at the present price at the time of the accident in accordance with the discount method that deducts the interim interest at the rate of 5/12 per month based on the facts and assessment as described in paragraph (a) below, on the basis of the following facts and assessment. (B)

(A) Facts and evaluation of the recognition;

(1) Gender: Male

Date of birth: October 15, 1964

Age: 35 years of age at the time of an accident;

Name of rental: 36.88

(2) Occupation: Non-standing and concrete hole.

(3) Revenue:

- From the accident to September 30, 200, the expiration date of the above construction period: 1,984,400 won per month (90,200 won x 22 days);

- Until October 14, 2024, the maximum working age after the construction period: 1,414,776 won per month (64,308 won x 22 days)

[Defendant asserted that only the above period of construction requires concrete building works during the above construction period, and that urban daily wage should be applied to the period from the above construction period to the maximum working age. However, the fact that a labor contract was concluded between the non-party company and the non-party company for setting a daily wage of KRW 90,200 and the non-party company to work as non-generation and concrete construction from March 11, 200 to the completion date of the above construction period is that the above assertion is not accepted.]

(4) Period of hospitalization: From the date of accident to April 16, 2000.

(5) Suspension period: from the date of accident to June 15, 2000.

(6) Maximum working age: Until he/she reaches age 60.

(7) The ratio of residual disability and labor ability loss:

- Deficits of at least 4/5 of raw resin of the second left-hand side;

Category II-2-2-b of Mabrod Cormers

(Vocational Coefficient: disability grade table by occupation 48. Application of cement mixed vocational coefficient 6)

- Loss rate: 7.7% by falling under 70% of the above item.

[Certificate] The result of the commission of the medical record appraisal to the head of A1, A7 through 9, B 1, B (including each number), and the head of the first instance court toTol University sexual hospital, and the purport of the entire pleadings

(b) mountain.

(1) Actual income during the period of suspension of business.

- From the date of accident to April 16, 2000

Monthly 1,984,400 won x 100% x 0.958 = 1,976,065 won

- From April 17, 200 to June 15, 2000

Monthly 1,984,400 won ¡¿ 7.7% ¡¿ 1.9794 = 302,449 won

- Total: 2,278,514

(2) Actual income from the date of suspension to the maximum working age

- From June 16, 200 to September 30, 200

Monthly 1,984,40 won x 7.7% x 2.9388 = 449,045 won

- From October 1, 200 to October 14, 2024

Monthly 1,414,776 won x 7.7% x 186.2012 = 20,284,340 won

- Total: 20,733,385 won

(3) Aggregate of lost income: 23,011,899 won.

(b) Medical expenses: 151,140 won;

[Certificate] A1-1, 1-4

(3) Fruits offsetting

(A) According to the above, as the hand metal at the time of the above accident, it is reasonable to 10% of the fault ratio of the hand metal in light of the background of the above accident, the degree of negligence in the promotion of defendant Kim Young, and all other circumstances shown in the argument of this case, so the defendants' responsibility is limited to 90%, since the above defendants' responsibility is limited to 90%.

(b) mountain.

(1) Net income of 2,278,514 won during the period of suspension of business ¡¿ 90% = 2,050,662 won

(2) Actual income after the period of suspension of business x 90% = 18,660,046 won.

(3) Medical expenses 151,140 won ¡¿ 90% = 136,026 won

(4) Aggregate of damages: 20,846,734 won.

(b) Scope of the right of indemnity;

(1) Where an industrial accident occurred due to a joint tort committed by a policyholder and a third party, the Korea Labor Welfare Corporation shall not claim against a third party the proportion of the policyholder’s fault to the third party, and in detail, the victim may claim against a third party only the difference after deducting an amount equivalent to the ratio of the policyholder’s fault to the amount of damages to be compensated from the amount of insurance benefits (see Supreme Court en banc Decision 2000Da62322, Mar. 21, 2002).

(2) According to the evidence set forth in the above 1., the Gangseo Construction Co., Ltd. and the non-party company which was subcontracted the above construction work from the insured may cause danger depending on the case of the above pumps. Thus, it is reasonable to view the above rate of negligence as the policyholder's fault in light of the above circumstances, such as the degree of negligence on the promotion of the defendant Kim Jong-sung's construction and the loss, degree of difficulty in the above work, risk and risk of the accident, and all other circumstances in the oral proceedings of this case, when performing a dangerous work such as the above accident, the contractor or safety manager, in addition to the person actually performing the work, should be assigned at the work site and the operation of the above pumps should be safe in accordance with his work order.

(3) Therefore, the Plaintiff may claim for reimbursement against the Defendants only 18,762,060 won (=20,846,734 won x (1 - 0.1) remaining after deducting 10% of the fault ratio on the side of the insured from the amount of damages of the finger iron found earlier.

4. Conclusion

The defendants are obligated to pay damages for delay at each rate of 5% per annum under the Civil Act from August 1, 2000 to September 22, 2005, which is the date following the date of the final payment of the above insurance benefits, as the plaintiff seeks against the plaintiff as to the 18,762,060 won and the amount of the above insurance benefits, and from August 1, 2000 to September 22, 2005, which is the date of the final decision of the court of first instance, and from the next day to the date of full payment, 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the plaintiff's claim shall be accepted only within the scope of the above recognition. Since the part against the defendants of the first instance judgment which partially different conclusions is unfair, the part against the defendants of the judgment of the first instance

Judges Park Tae-dong (Presiding Judge) Lee Ho-hunon