2017Guhap53033 Revocation of revocation of the payment of bereaved family's benefits and funeral expenses

Park ○

Korea Labor Welfare Corporation

October 19, 2017

November 9, 2017

1. On August 5, 2016, the Defendant’s disposition of bereaved family benefits and funeral expense against the Plaintiff is revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. From September 23, 2013, the Plaintiff’s husband’s net gambling ○○○ (hereinafter referred to as “the Deceased”) was an employee belonging to ○○○○, Inc. (hereinafter referred to as “○○○○”) and was issued as NA 000 LTD (hereinafter referred to as “○○ factory”) and worked in the south of China at the south of China on July 18, 2014, after returning home to Korea in the aftermath of the department and returning to Korea on the next day, and died (hereinafter referred to as “the instant disaster”). From September 23, 2013, the blood content of the Deceased at the time was confirmed to be 41m/10mm/10m/10m of alcohol content to the extent that it can cause the death.

B. On September 24, 2015, the Plaintiff filed a claim against the Defendant for survivors’ benefits and funeral expenses on the ground that the instant accident was an employee of ○○○○, who was an employee on the part of the deceased, and the Defendant did not constitute a worker subject to the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Insurance Act”) since ○○○ is not a worker subject to the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Insurance Act”) since ○○, who was an employee on the part of the deceased, was approved by having purchased an insurance policy for the overseas dispatch of the decedent, and it is difficult to acknowledge a proximate causal relation between the deceased’s drinking during the class session and the instant accident, and (3) on the ground that the intensity and stress of the deceased’s duties at the time of the instant accident cannot be the cause of death (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed a request for reexamination to the Industrial Accident Compensation Insurance Review Committee. On November 17, 2016, the said Committee: (a) may be deemed that the death of the deceased was in proximate causal relation with drinking at the meeting; (b) however, the Deceased, as a temporary agency worker of an overseas corporation, did not constitute a worker subject to the Industrial Accident Compensation Insurance Act on the ground that he/she was not subject to the application of the Industrial Accident Compensation Insurance Act because he/she did not have obtained an application for and approval

D. The Plaintiff filed the instant lawsuit against the foregoing decision, and the Defendant expressed his intention not to dispute the existence of a proximate causal relationship between the instant disaster and the business during the pleadings of the instant case.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

The key issue of this case is whether the deceased is an employee subject to the Industrial Accident Insurance Act, and the defendant asserts that ○○ta is not an employee subject to the Industrial Accident Insurance Act unless he/she had obtained the approval of his/her purchase of insurance pursuant to Article 122 of the Industrial Accident Insurance Act against the deceased, who is an overseas dispatch, and the plaintiff argues that the status of the deceased's work is comprehensively examined. The plaintiff argues that the place of work is merely overseas, and actually belongs to the domestic business and works under the direction of the employer of the business, so the existing industrial accident insurance relationship still remains maintained and constitutes an employee under the Industrial

B. Relevant Acts and subordinate statutes and legal principles1)

【Industrial Accident Compensation Insurance Act】

Article 6 (Scope of Application)

This Act shall apply to all businesses or workplaces that employ workers (hereinafter referred to as "business"): Provided, That this Act shall not apply to business prescribed by Presidential Decree in consideration of risk rates, scale, place, etc.

Article 122 (Special Cases concerning Persons Dispatched Overseas)

(1) Where an insured under Article 5 (3) and (4) of the Insurance Premium Collection Act applies for insurance policy and obtains approval therefor from the Service for a person who is dispatched to work for the business in the Republic of Korea (excluding an area prescribed by Ordinance of the Ministry of Employment and Labor) outside the territory of the Republic of Korea (hereinafter referred to as "explosion overseas") by deeming the dispatched overseas as a worker employed for the business (referring to the main business in the case of two or more businesses) within the territory of the Republic of Korea of the relevant insured.

(2) The amount of wages used as the basis for the insurance benefits of overseas temporary agency workers shall be the amount determined and publicly announced by the Minister of Employment and Labor, taking into account the wage amount of the same occupational employee employed

(3) Matters necessary for paying insurance benefits to overseas temporary agency workers shall be prescribed by Ordinance of the Ministry of Employment and Labor.

(4) The Insurance Premium Collection Act shall apply to calculation of insurance premiums, applications for insurance policies and approval therefor, reporting and payment of insurance premiums, termination of insurance relationship, and other necessary matters for persons dispatched overseas subject to this Act under paragraph (1).

2) Legal principles

Article 6 of the Industrial Accident Insurance Act shall apply to all businesses or places of business that employ workers (hereinafter referred to as "business"): Provided, That this Act shall not apply to businesses prescribed by Presidential Decree, taking into account risk rates, sizes, places, etc. (hereinafter referred to as "business"). However, the Minister of Labor takes charge of industrial accident compensation insurance business, and does not provide for any particular provision as to whether business is conducted overseas. However, if the Minister of Labor takes charge of industrial accident compensation insurance business, if the business owner satisfies certain requirements prescribed by the Industrial Accident Compensation Insurance Act, is naturally insured and the insurance premium is uniformly determined and mandatory, and Article 121 of the Industrial Accident Insurance Act provides for special cases concerning overseas business, and dispatched overseas under Article 122 of the Industrial Accident Insurance Act.

In light of the purport of Article 6 of the Industrial Accident Insurance Act, it shall be deemed that the business as prescribed in Article 6 of the Industrial Accident Compensation Insurance Act is carried on in Korea, unless there are special circumstances.

Provided, That the industrial accident compensation insurance relationship shall be between the operator of a business conducted in Korea and

In a case where a separated worker is dispatched to work abroad, if he simply examines the actual state of his work abroad and actually belongs to the domestic business and works under the direction of the employer of the relevant business, the relationship between the industrial accident compensation insurance with the owner of the relevant domestic business is still maintained. Therefore, the Industrial Accident Compensation Insurance Act shall apply to the worker who is dispatched to a foreign country, but if not in the above case, the Industrial Accident Compensation Insurance Act shall not apply to the worker dispatched to a foreign country (Supreme Court Decision 2010Do458, Apr. 4, 2010).

29. See Supreme Court Decision 2009Du22829 Decided 29.

(c) Fact of recognition;

1) ○○○○○ has “foreign corporations/branch management process” in which eight production factories located in Korea, China, and Vietnam and nine sales corporations in the world, and 14 foreign corporations and branch offices are manufactured and sold, including establishment, transfer, and closure of overseas corporations and branch offices, standards for performance of duties, personnel and wages of resident personnel, business plans, business reports, accounting principles, etc., and the business management process of overseas corporations/branch management is conducted through the business process computer network called “competia”.

On April 1, 1995, ○○○○○○○ Limited Company, ○○ Investment Company, etc., to build an ○○○○○○○○ factory in China through investment in south of China. ○○ factory is also managed by ○○○○ factory according to 'the process of managing foreign corporations/branch offices', 'the business-related report, approval, instruction, and announcement specifically related to the business' through 'the process of managing ○○ factory', ○○ factory has been regularly inspected the status of activities (TPM) by ○○○ Seoul Office on a regular basis and has been assessed in specific values.

2) According to the ○○○○-a-management organization map, the highest manager (EO) was designated as the head of the management planning headquarters, the Research and Technology Headquarters, the Process Technology Headquarters, G. Production Technology Headquarters, etc. under his control. G. Around early 2014, the head of the ○○-a-factory was the head of the ○○○-a-factory was the head of the ○○-a-company. (3) around early 2014, the ○○-a-company issued the Deceased as the full-time team leader before the ○ factory on September 23, 2013 in accordance with the basic qualification requirements, personnel announcement, etc. set out in the above process. On October 8, 2013, the Deceased commenced working at the ○○-a-a-factory relocation Team, which suspended the relocation of the ○○ factory, led the Deceased to improve the operation of the ○○-a-a-factory to improve its operation efficiency.

4) While working at ○○○○ Factory, the deceased worked for the head of ○○○○ Technical Headquarters, etc. in relation to the accident of Chinese △△ Factory, the head of ○○○○○ Center, etc., sent a business trip to △△ Factory K-△△△ Factory upon request of the head office, or upon request of the head office, to support the work related to the promotion of TPP. In addition, the OO factory was on July 14, 2014, which reported the current status of ○○○○ Office’s disposal by hour. In this regard, the deceased reported the current status of ○○○○○○ Factory’s disposal at the Seoul Office’s office. 5) Domestic benefits (basic pay, work promotion allowance, overtime work allowance, bonus, leave allowance, etc.) were paid at the Seoul Office for the period during which the deceased worked at ○○○ Factory, and the Class A earned income was paid as withholding tax, and according to the employee information ledger data, the deceased was also paid every month as the industrial accident insurance premium to which ○ Insurance premium belongs to the Seoul Metropolitan Office.

[Ground of recognition] Facts without dispute, Gap evidence 3 through 13, 15 through 19, 23 through 39, Eul evidence 1 and 2 (including each number), and the purport of the whole pleadings

D. Determination

In light of the above legal principles, according to the overall status of the deceased's work, such as health team, ○○○ factory relationship, ○○○ factory relationship, personnel management, wage payment, social insurance premium payment, details of business, reporting and direction system, etc., it is reasonable to deem that the deceased's work at this ○ factory is merely merely a work place located abroad, and it constitutes work at the domestic business of this ○○, in substance, belonging to the domestic business of this ○○, and it constitutes work at the direction of the domestic business office.

Therefore, the deceased constitutes a person subject to Article 6 of the Industrial Accident Insurance Act, not a person dispatched overseas as stipulated in Article 122 of the Industrial Accident Insurance Act, and thus, the disposition of this case which the defendant refused the plaintiff's application is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

Judges - Presiding Judge

Judges Kim Jong-soo

Maximum Judge