Sejong Enterprise Co., Ltd. (Attorney Kim Sung-jin, Counsel for the defendant-appellant)

Korea Labor Welfare Corporation

Seoul Administrative Court Decision 2009Guhap2696 Decided September 4, 2009

May 28, 2010

1. Of the judgment of the court of first instance, the part against the defendant as to the insurance premium of 2006 5,696,910 won for 2006 , 65,608,370 won for 207 finalized insurance premium of 2007 , and estimated industrial accident premium of 19,786,660 won for 208 shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. 4/5 of the total litigation costs is borne by the Plaintiff, and 1/5 by the Defendant, respectively.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 33,928,860 on November 6, 2008 against the Plaintiff was revoked in the imposition of KRW 55,69,96,910 on the insurance premium for the year 2005, KRW 65,608,370 on the insurance premium for the year 2007, KRW 19,786,660 on the estimated insurance premium for the year 2008, KRW 175,020,80 on the aggregate.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. The Plaintiff and the Korea Atomic Energy Co., Ltd. (hereinafter “Nonindicted Companies”) concluded a maintenance service agreement on the survey and control equipment of the Yeongdeungpo Atomic Energy Power Plants (hereinafter “instant agreement”) with the following content:

1) Contract term, etc.

On May 14, 2002, the insurance management number of the power plant contract period of the third power plant as of May 14, 2002, the third power plant from May 21, 2002 to October 31, 2005, the 907-09-36393-7 from October 19, 2005, the second power plant from November 1, 2005 to April 30, 2008, the 907-0-226762-12, October 31, 2005, the third power plant from November 1, 2005 to April 30, 2007 to April 30, 2007 to 907-07-2631, 26731.

(ii) the main contents of the service;

The purpose is to ensure the safe operation and stable supply of electricity of nuclear power plants by maintaining the optimal condition of measurement and control equipment (excluding major core equipment related to the safety of nuclear reactors and output operation) during the normal output operation period of the nuclear power plant.

1. The following services with respect to entrusted facilities:

(a) Formulation and implementation of plans for daily and preventive improvement projects;

(i) preventive and maintenance, such as the analysis, causes analysis, and processing of defects in the ordinary driving, and the establishment of countermeasures to prevent recurrence;

(ii) diagnosis and repair of defective measuring instruments and technical review of required materials;

(b) Formulation and implementation of plan prevention and rearrangement plans;

(i)the formulation and implementation of plan prevention and rearrangement plans;

(ii) precise inspection of the electronic circuit board;

(iii) monitoring and replacing semiconductors for power use;

(iv) monitoring and replacing mobile nucles (IC) nuclear measuring devices;

(c) diagnosis, inspection and repair of electronic circuit facilities;

(d) quality control-related duties in accordance with a plan and procedure for guaranteeing the area of goods;

(e)to reflect or present proposals on facility improvement, advanced maintenance techniques and experience cases;

(f) Supply and procurement of maintenance materials designated by the ordering person;

(g) Planning, prevention and maintenance of equipment directly operated by the person placing an order, and human resource support;

(h) Business affairs incidental to the above paragraph;

(i) Regular inspection of the facilities entrusted to policyholders, and other duties designated by each business;

(j) Supporting the inspection of facilities directly operated by Nonparty Company

(k) Maintenance of facilities entrusted by policyholders, and establishment and amendment of test procedures;

2. Scope of maintenance;

(a)the scope of maintenance of the instrument subject to the service includes any interlocking of the relevant instrument;

(b)the ordinary maintenance project (treatment) and the on-site net inspection work conducted within the service implementation period shall be conducted with respect to all instruments and related work entrusted to this design and related work, and preventive, inspection and regular tests shall be conducted after the approval of the project owner, referring to the instruments and items for each system of service facilities;

B. Plaintiff’s report and payment of industrial accident insurance premiums on each of the instant projects

From May 14, 2002, the Plaintiff imposed the industrial accident insurance premium applicable to the industrial accident insurance rate corresponding to the "business of manufacturing machinery and tools (223)" and paid it. On November 8, 2005, the Plaintiff’s main business part of the Plaintiff company is classified as “any other business (lease and business services)” under the industrial accident insurance premium rate table as the main business part of the Plaintiff company’s electrical and electronic engineering business as the ordinary industrial accident insurance premium rate table, and there was an example that the Defendant applied “all other businesses (lease and business services)” to the other companies that operated the same business as the Plaintiff in the mining power plant, and the Plaintiff’s business in this case constitutes “any other business (lease and service business)” or “electric gas and water supply business (former business)” under the industrial accident rate table, and the Defendant filed a report on December 26, 2005 as to the industrial accident insurance premium rate of 300,000,000,000 after the correction of the industrial accident insurance premium rate of this case (30).

C. In the Plaintiff’s related case (Seoul Administrative Court 2008Guhap24590), the judgment of the court that the Plaintiff’s technical maintenance and repair work for the Plaintiff’s equipment of the Consolidated Power Plants constitutes “the manufacturing business of various machinery or parts attached thereto (22312)” was sentenced on October 28, 2008 (the appeal against the above judgment was dismissed on June 5, 2009 by this court, but it became final and conclusive on November 6, 2008 without filing an appeal (2008Nu33800))] on November 6, 2008, the Defendant applied the industrial accident insurance premium rate ex officio to the Plaintiff’s business operation and imposed the industrial accident insurance premium in relation to the Plaintiff as stated in the purport of the claim.

[Basis] Evidence Nos. 1-1, 2, 3, 2, 3, 6-3, 4, 8, 9-1, 10-1, 2, 11, 12-1 through 9, 17, and 17 of the first instance court's inquiry into the non-party company, the purport of the whole pleadings, as a result of the first instance court's inquiry into the non-party company

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Although each of the instant projects constitutes “electric-related engineering services” as examples of “lease and Business Service (90502)”, the instant disposition is unlawful to deem the instant project as “all kinds of machinery or parts manufacturing business (22312)”.

2) Unlike domestic affairs, in light of the fact that the Plaintiff paid the industrial accident insurance premium pursuant to the Defendant’s reply that each of the instant businesses constitutes a “exclusive business (3001)” for three years, and that the Defendant also imposed the industrial accident insurance premium on another company that performed the same business as the instant business by applying the “exclusive business”, each of the instant businesses shall be deemed as constituting a “exclusive business (3001).” On the contrary, the instant disposition imposing the revised industrial accident insurance premium by changing the type of each of the instant businesses to “a type of machinery or auxiliary manufacturing business (2312),” which is against the principle of trust protection, the principle of equality, and the principle of self-regulation, etc.

3) The Defendant’s imposition of the insurance premium of this case against the first business is unlawful since the three-year statute of limitations has passed.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the business type of the instant case

According to Articles 5(3), 14, and 17 of the former Act on the Collection of Insurance Premiums, etc. for the Employment Insurance and Industrial Accident Compensation Insurance (amended by Act No. 9794, Oct. 9, 2009; hereinafter “former Insurance Premium Collection Act”), Article 13 of the Enforcement Decree of the same Act, and Article 12 of the Enforcement Rule of the same Act, the owner of a business subject to the Industrial Accident Compensation Insurance Act is naturally a policyholder of the Industrial Accident Compensation Insurance under the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Insurance Act”), and the industrial accident insurance premium rate is divided into the types of business classified by the risk of disaster and the homogeneity of economic activities, and the Minister of Labor shall determine and publicly notify the industrial accident insurance premium rate.

Meanwhile, according to the industrial accident insurance premium table publicly notified by the Minister of Labor (No. 2007-52, Dec. 31, 2007; hereinafter the same), the type of business and the type of business are as follows: ① the risk of disaster, the total ratio of insurance benefits to the total wages of economic activities, ② the main final products, finished products and services provided by the applicable business unit, ③ the types of business applied to an individual business shall be in accordance with the industrial accident insurance premium rate table determined by the president of the Korea Workers' Compensation and Welfare, and if it is not clear that the business is omitted and example, the most appropriate type of business is applied to the manufacturing business or manufacturing business using various kinds of machinery, tools, equipment, etc. (Article 3(1) and (2)); and the table of business examples are as follows: eight kinds of business (1.2. Electricity, electricity and water supply business;4.5.6.7.7.)

In full view of the above relevant Acts and subordinate statutes, in determining the type of business pursuant to the industrial accident insurance premium rate table, if the business type of the business type of the above 8 types of business corresponds to the above 8 types of business, the business type shall first be applied, and if there is no corresponding business tax item and example, the business type shall be applied only to the case where the business type of the above 8 types of business is not corresponding to the above 9. Other businesses. Therefore, it is reasonable to view that the contents and scope of each of the services of the plaintiff of this case are to diagnose, repair or replace the main preventive maintenance work and the malfunction of the broken devices, semiconductors for power use, semiconductors for power use, electronic circuit equipment, etc. and to conduct maintenance and repair work for power generation facilities such as control and measurement equipment of the power plant of this case, it is included in the category of the "business repairing machinery or parts" as stated in the examples of "the manufacturing business of various machinery or parts" in the above

Therefore, this part of the Plaintiff’s assertion that each of the instant businesses constitutes “electric and electronic engineering services” listed in “other business services”, which are the examples of “902 leasing and business services” cannot be accepted.

2) As to the violation of the principle of trust protection

In general, in administrative legal relations, in order to apply the principle of protecting the trust in the act of the administrative agency, the first administrative agency should name the public opinion that is the object of trust to the individual, second, when the opinion list of the administrative agency is justified and trusted, there is no cause attributable to the individual, third, when the individual should have trusted that the opinion list of the administrative agency is well trusted, and third, when the administrative agency made a disposition contrary to the above opinion list against the above opinion list, it should cause an infringement on the interests of the person trusted in the opinion list, and last, when taking the administrative disposition in accordance with the above opinion list, it should not be likely to seriously undermine the public interest or legitimate interests of the third party (see Supreme Court Decision 2005Du6539, Apr. 28, 2006, etc.).

However, as seen above, the plaintiff is engaged in the business of maintaining and repairing the measurement and control equipment of non-party company's nuclear power plant, and since the business of this case is not operated by a nuclear power plant that generates, transmits, transformation, or distributes electricity, it cannot be deemed that the business of this case constitutes a pre-company (3001). Further, it cannot be deemed that the defendant issued a public opinion ordering the plaintiff that the business of this case constitutes "pre-company (3001)" merely because the defendant issued the above questioning by the plaintiff constitutes "pre-company (3001)" and it cannot be deemed that the business of this case constitutes "pre-company (3001)," and pursuant to Articles 17 (2) and 19 (4) of the former Insurance Premium Collection Act, if a report on the estimated premium and final premium reported by the business owner is different from the fact, the defendant may additionally collect the shortage of the estimated premium and final premium after investigating the fact, so it cannot be deemed that the defendant violated the principle of imposing retroactive punishment as alleged by the plaintiff.

Therefore, the plaintiff's assertion on this part is without merit.

3) As to the assertion of extinctive prescription

Article 41(1) of the former Insurance Premium Collection Act provides that the right to collect or return the insurance premium and other money collectable under this Act shall be extinguished by prescription if it is not exercised for three years. Article 43 of the same Act provides that the extinctive prescription of the final premium under Article 19 shall run from the first day of the following insurance year (the date on which the insurance relationship is terminated in the case of the business whose insurance relationship is terminated during the insurance year). As seen earlier, the insurance contract of the Plaintiff’s first business is terminated on October 31, 2005. The imposition of the amount of KRW 33,928,860 on the Defendant’s first business shall be imposed on the Defendant’s first business after three years from the date on which the insurance relationship was terminated, and it shall be limited only on November 6, 2008, and it is unlawful since the right to collect the insurance premium has already been extinguished.

On February 6, 2007, the Defendant imposed KRW 483,320 on the Plaintiff through the final settlement of accounts, the final premium, arrears therefor, and additional dues on the first business, and the Plaintiff paid it on February 14, 2007, and accordingly, the extinctive prescription of the right to collect was suspended pursuant to Article 42(2)2 of the former Insurance Premium Collection Act. According to the evidence No. 4, the Defendant maintained the initial disposition as to the industrial accident insurance premium rate of the first business and imposed additional premiums, arrears, and additional dues on the ground that some difference exists as a result of the investigation as to the total amount of wages. However, the collection of additional premiums following the change in the total amount of wages differs entirely from the collection of the industrial accident insurance premium of this case due to the change in the industrial accident insurance premium rate, and thus, the payment notice following the change in the total amount of wages affects the right to collect the industrial accident insurance premium due to the change in the industrial accident insurance premium rate, and thus, the allegation by the above Defendant is not justified.

3. Conclusion

Therefore, the part against the defendant, except for the part of imposition of 33,928,860 won of the final premium in 2005 of the judgment of the court of first instance, is unfair in conclusion. Thus, the part against the above defendant in the judgment of the court of first instance is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. The part of imposition of 33,928,860 won of the final premium in 2005 of the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment Form 5]

Judges Lee Jae-ho (Presiding Judge)

Note 1) Industrial accident insurance premium rate; 6/100 (2005), 7/1000 (2006), 8/1000 (2007), 10/100 (2008)

Note 2) 8/100 (205), 10/1000 (2006), 12/1000 (2007), 11/1000 (2008)

Note 3) 28/100 (2005), 30/1000 (2006), 33/1000 (2007), 30/1000 (2008)