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

[2] Criteria for determining whether an employee is a worker under the Labor Standards Act

[3] Whether the liability insurer who is directly liable for damages to the victim under Article 9(1) of the Guarantee of Automobile Accident Compensation Act and Article 724(2) of the Commercial Act is always included in the "third party" under the main sentence of Article 54(1) of the Industrial Accident Compensation Insurance Act (affirmative)

[1] "Third party" in the main sentence of Article 54 (Right of Indemnification against Third Party) (1) of the Industrial Accident Compensation Insurance Act refers to a person who has no industrial accident compensation insurance relationship with the affected worker, and is liable for damages caused by illegal acts, etc. to the affected worker. However, where an occupational accident occurred due to an act of a worker employed by the same business owner, such worker shall be excluded from the said "third party" as a person having an industrial accident compensation insurance relationship with the affected worker directly or indirectly with the business owner who is the insured.

[2] Determination of whether a worker is a worker under the Labor Standards Act shall be made on the actual aspect of the contract, regardless of whether the form of the contract is an employment contract under the Civil Act or a contract for work, depending on whether the worker provided labor in a subordinate relationship with the employer for the purpose of wages. Determination of whether such a subordinate relationship exists should be made by comprehensively taking into account the following: (a) the content of the work is determined by the employer; (b) whether the worker is subject to specific direction and supervision by the employer; (c) whether the working hours and the place of work are designated by the employer; (d) whether the worker is subject to delegation of work by a third party; (b) ownership of equipment, raw materials, working tools; (c) whether the worker has a characteristic of remuneration; (d) whether the characteristic of remuneration is a basic wage or fixed wage; (e) whether the continuous provision of labor and the degree and degree of the exclusive relationship with the employer; and (e) whether the status of the worker is recognized by other Acts and subordinate statutes regarding social security systems; and (e) the social and economic conditions of the Parties.

[3] For the purpose of the main sentence of Article 54(1) of the Industrial Accident Compensation Insurance Act, the term "third party" refers to the insurer, the insured (business owner) and the pertinent beneficiary, who is not an industrial accident compensation worker, and is liable for the tort liability, the Guarantee of Automobile Accident Compensation Act, or the Civil Act or the State Compensation Act for the victimized worker. Furthermore, for the perpetrator of a traffic accident, the liability for damages under Article 3 of the Guarantee of Automobile Accident Compensation Act has occurred, and the victim's direct claim against the liability insurer recognized under Article 9 of the Guarantee of Automobile Accident Compensation Act and Article 724(2) of the Commercial Act is a right separate from the victim's right to claim damages against the perpetrator, and thus, the insurer liable for direct damage against the victim under Article 9(1) of the Guarantee of Automobile Accident Compensation Act and Article 724(2) of the Commercial Act includes a third party regardless of whether the perpetrator of the traffic accident falls

[1] Article 54(1) of the Industrial Accident Compensation Insurance Act / [2] Article 14 of the Labor Standards Act / [3] Article 54(1) of the Industrial Accident Compensation Insurance Act, Articles 3 and 9(1) of the Guarantee of Automobile Accident Compensation Act, Article 724(2) of the Commercial Act

[1] [3] Supreme Court Decision 2003Da13307 decided Dec. 26, 2003 (Gong2004Sang, 221) / [1] Supreme Court Decision 85Meu2429 decided Apr. 8, 1986 (Gong1986, 759) Supreme Court Decision 85Da2285 decided Mar. 8, 1988 (Gong198, 650), Supreme Court Decision 2003Da33691 decided Dec. 24, 2004 (Gong2005Sang, 189) / [2] Supreme Court Decision 2005Du524 decided May 27, 2005 (Gong2005Ha, 1060) and 207Da136497 decided Oct. 24, 2005)

Korea Labor Welfare Corporation

Defendant 1 (Law Firm New, Attorney Hong Jin-jin, Counsel for defendant-appellant)

Heung-gu Fire & Marine Insurance Co., Ltd. (Law Firm New Age, Attorney Hong Jin-jin, Counsel for the plaintiff-appellant)

Seoul Southern District Court Decision 2005Na7288 Decided August 10, 2006

All appeals are dismissed. The costs of appeal are assessed against each party.

Each ground of appeal is examined.

1. The plaintiff's ground of appeal No. 1

The main text of Article 54 (1) of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Insurance Act”) provides that “Where insurance benefits have been paid due to a disaster caused by a third party’s act, the Corporation shall subrogate the third party to the claim for damages against the person who has received the benefits within the limits of the benefits.” Here, “the third party” refers to the person who has no relationship between the affected party and the industrial accident compensation insurance with the affected party, and who is liable for damages due to tort, etc. to the affected worker, but it is reasonable to deem that the said worker is excluded from the said “the third party” as a person who has an industrial accident with the affected party, directly or indirectly, with the insured worker, where he/she suffers from an occupational accident due to the act committed by the same employer (see Supreme Court Decision 2003Da3691, Dec. 24, 2004, etc.).

On the other hand, determination of whether a worker is a worker under the Labor Standards Act shall be made on the actual aspect of the contract, regardless of whether the contract form is an employment contract under the Civil Act or a contract for work, depending on whether the worker provided work in a subordinate relationship with the employer for the purpose of wages. Determination of whether such a subordinate relationship exists shall be made by the employer, whether the contents of work are determined by the employer, whether the employer is subject to specific direction and supervision by the employer, whether the working hours and place are designated by the employer and are detained by the employer, whether the worker is replaced by the work, whether the worker's ownership of equipment, raw materials and work tools, etc., whether the characteristic of the remuneration is the object of the work itself, whether the basic salary or fixed wage is determined, whether the wage is determined, whether the wage has the characteristic of the work itself, whether the wage has the nature of the wage income tax is withheld, whether the continuous provision of the labor relationship and the exclusive nature and degree of the employer, whether the status of the worker is recognized by other Acts and subordinate statutes regarding social security system, and the social and economic conditions of both parties, etc.

The court below reasoned that the plaintiff's accident of this case occurred due to defendant 1's negligence and thus, pursuant to Article 54 (1) of the Industrial Accident Compensation Act, the plaintiff can subrogate the right to claim damages against the defendant 1 and 2 within the insurance benefits amount. The defendant 1 sought payment of each insurance benefits to the defendant 1, based on the same legal reasoning, citing the reasoning of the judgment of the court of the first instance, and based on the adopted evidence, found the facts as stated in the judgment. After finding the facts based on the adopted evidence, even though there were some lack of circumstances as to the worker's working conditions in various disciplinary statements about the worker's work conditions, it is reasonable to view that the defendant 1 provided work in a subordinate relationship with the company for the purpose of earning wages in the business or workplace, and therefore, it is just that the defendant 1 does not constitute "third party" as the worker of the company, who is the non-party 1 and 2, as an employee of the company, and it does not affect the conclusion of the judgment in violation of the rules of evidence.

2. Determination on the first ground for appeal by Defendant Heung-gu Fire Marine Insurance Co., Ltd.

As seen earlier, the term "third party" under the main sentence of Article 54 (1) of the Industrial Accident Compensation Act refers to the insurer, the insured (business owner) and the person other than the pertinent beneficiary, who is not an industrial accident compensation insurance relationship with the victimized employee, and is liable for the tort liability or the Guarantee of Automobile Accident Compensation Act (hereinafter referred to as the "Voluntary Compensation Act") or the Civil Act or the State Compensation Act for the victimized employee. Furthermore, in a case where the liability for damages is established against the perpetrator of the traffic accident pursuant to Article 3 of the Act, the right to direct claim against the victim recognized pursuant to Article 9 of the Act on the Aggravated Punishment and Article 724 (2) of the Commercial Act is a right separate from the right to claim damages against the perpetrator, and therefore, the insurer liable for direct damage against the victim pursuant to Article 9 (1) of the Act on the Aggravated Punishment and Article 724 (2) of the Commercial Act is included in the third party regardless of whether the perpetrator of the traffic accident falls under a third party

The court below is just in holding that the plaintiff who paid insurance benefits under the Industrial Accident Compensation Act on the premise of the same legal principle can exercise the right to reimbursement within the scope of the liability insurance amount against the defendant interesting company (hereinafter "the defendant company"), a person liable to pay the liability insurance amount under the Industrial Accident Compensation Insurance Act, within the scope of the liability insurance amount. In so doing, contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles that affected

3. On the second ground for appeal by the plaintiff

Examining the evidence adopted by the court below in light of the records, the court below is just in holding that the plaintiff can claim the defendant company for reimbursement of 32,327,270 won (=13,39,020 won + 11,010,960 won + 7,917,290 won) by subrogated acquisition of a direct claim for the liability insurance money against the defendant company by the non-party 1 and the non-party 2, and there is no error of law such as misunderstanding of legal principles affecting the conclusion of the judgment, misunderstanding of facts due to a violation of the rules of evidence, or an incomplete hearing, as alleged in the grounds of appeal

4. Judgment on the second ground of appeal by the defendant company

In light of the records, the court below is just in holding that the period of extinctive prescription is two years, and that the lawsuit of this case was filed after the lapse of two years from the date of the accident of this case, and that the period of extinctive prescription has expired. Accordingly, according to the evidence in its holding, the plaintiff notified the defendant company that he would pay the compensation amount to the defendant company as of December 31, 2003, and that the above notification was delivered to the defendant company around that time. Since it is apparent that the lawsuit of this case was filed at the time six months have not passed from the lawsuit of this case, the plaintiff's claim against the defendant company was suspended by the lawsuit of this case filed within the highest notice as of December 31, 2003 and within six months from the above time, and there is no error of law such as misunderstanding of legal principles, violation of the rules of evidence, or misunderstanding of facts due to incomplete deliberation, which affected the conclusion of the judgment, contrary to the allegations

Supreme Court Decision 97Da31281 delivered on November 25, 1997, etc. cited by the Defendant Company as the grounds of appeal, is inappropriate to invoke the case differently from this case.

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)