【Holding】

Article 87(1) of the Industrial Accident Compensation Insurance Act (main text): the criteria for determining whether a person constitutes a "third party" as prescribed therein, and where the principal contractor, etc. of a construction project enters into a contract under which it leases construction machinery and also receives the labor of operating the construction machinery from the lessor or the lessor's employee, and the construction machinery lessor, etc. accordingly causes an occupational accident to an employee of the principal contractor, etc. while operating the construction machinery at the construction site, whether the construction machinery lessor, etc. constitutes a "third party" under the main text of Article 87(1) of the Industrial Accident Compensation Insurance Act (negative)

【Summary of Decision】

[Majority Opinion] (A) With respect to the meaning of "third party" in the main text of Article 87(1) of the Industrial Accident Compensation Insurance Act (hereinafter the "Industrial Accident Insurance Act"), the Supreme Court has interpreted it to mean a person who, "together with the employer as the insured, has no direct or indirect industrial accident insurance relationship with the injured employee" and who bears tort liability toward the injured employee or liability for damages under the provisions of the Guarantee of Automobile Accident Compensation Act, the Civil Act, or the State Compensation Act.

Under the above criterion, the Supreme Court has held that a fellow employee employed by the same employer, an employee employed by the principal contractor as employer and an employee employed by a subcontractor, and a subcontractor do not constitute third parties, on the ground that they, together with the employer as the insured, have a direct or indirect industrial accident insurance relationship with the injured employee.

However, in cases where the principal contractor or a subcontractor of a construction project (including a sub-subcontractor where contracting occurs in multiple tiers; hereinafter collectively with the principal contractor referred to as the "principal contractor, etc.") entered into a contract under which it leased construction machinery and also received the labor of operating the construction machinery from the lessor or the lessor's employee (hereinafter the "construction machinery lessor, etc.") (hereinafter a "contract for lease of construction machinery and provision of operating labor"), the Supreme Court affirmed the exercise of the right of subrogation by the Korea Workers' Compensation and Welfare Service (hereinafter the "Service") not only where an employee of the construction machinery lessor operated the construction machinery but also where the construction machinery lessor personally provided the labor of operating the construction machinery.

These existing rulings, first of all, treated the question of whether a person constitutes a third party under the main text of Article 87(1) of the Industrial Accident Insurance Act as a question of who bears the burden of industrial accident insurance premiums—in particular, who bears the obligation to pay industrial accident insurance premiums for the person who caused the occupational accident. That is, where the person was an employee of the principal contractor, etc. or a contracting relationship was recognized, the person was regarded as having a "direct or indirect industrial accident insurance relationship with the injured employee" through the principal contractor, the employer who bears the insurance premiums under Article 9(1) of the former Industrial Accident Insurance Act (before amended by Act No. 7049 on December 31, 2003) or Article 9(1) of the Act on the Collection of Insurance Premiums for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter the "Insurance Premium Collection Act"). However, since a construction machinery lessor, etc. is neither an employee of the principal contractor nor a subcontractor, and the principal contractor, as the insured and the employer, does not bear insurance premiums for such person, the reasoning was that the construction machinery lessor, etc. has no "direct or indirect industrial accident insurance relationship with the injured employee."

(B) Whether an accident is one caused by "the act of a third party" under the main text of Article 87(1) of the Industrial Accident Insurance Act or one caused by "the act of an employee of a different employer where two or more employers who are insured persons divide one business among themselves and each carry out a portion at the same place" as referred to in the proviso to the same paragraph is a question of up to which of the persons who committed a tort, etc. against the injured employee (hereinafter the "wrongdoer") the Service may subrogate the injured employee's claim for damages—in other words, whether the Service bears the ultimate compensation liability toward the injured employee within the limit of the amount of insurance benefits. Since the main text and proviso of Article 87(1) of the Industrial Accident Insurance Act do not specifically explain the scope of "third party" or what is meant by "dividing one business among themselves and each carrying out a portion," the court must interpret and apply them reasonably by comprehensively considering the nature and purpose of the industrial accident insurance system, the legislative intent of Article 87(1) of the Industrial Accident Insurance Act and its overall content and structure, the operation and financial burden of industrial accident insurance, the notion of equity, and so forth.

Viewed from this perspective, the scope of exercise of the right of subrogation under the main text of Article 87(1) of the Industrial Accident Insurance Act should be determined not according to the allocation of the burden of insurance premiums, but according to whether the employees or labor providers form a shared risk relationship with respect to occupational accidents in the same business or workplace. That is, it is reasonable to identify the scope of third parties under the main text of Article 87(1) centering on whether they can be regarded as "sharing" the same "risk" inherent in the business or workplace. If the risk is shared in this way, the wrongdoer who caused the occupational accident and his or her employer do not constitute third parties against whom the Service that paid insurance benefits may subrogate the injured employee's claim for damages.

Specifically, even where the wrongdoer is not an employee who has entered into an employment contract with the employer of the injured employee (including not only cases where the wrongdoer or the injured employee is an employee under the Labor Standards Act but also cases where he or she is a labor provider as prescribed in Article 91-15 of the Industrial Accident Insurance Act; the same applies hereinafter) (including a subcontractor where the principal contractor is the employer who is the insured under the main text of Article 9(1) of the Insurance Premium Collection Act; the same applies hereinafter), if the occupational accident occurred in the course of performing that employer's business under the direction and command of the same employer as the injured employee, the wrongdoer and the injured employee can be regarded as having shared the risk inherent in the business or workplace. This is because the work performed by the wrongdoer and the injured employee is incorporated into, and forms part of, the business carried on by the employer who gave the direction and command.

The reason why prior precedents excluded from third parties an employee employed by the principal contractor of a construction project, its subcontractor, or an employee employed by a subcontractor who worked at the same construction site, and so forth, can also be consistently explained by this legal doctrine. Furthermore, since an operator who provided construction machinery operating labor at a construction site under the direction and command of the principal contractor, etc. can also be regarded as having shared the risk with the injured employee, the relevant construction machinery lessor, etc. likewise does not constitute a third party.

(C) Contrary to the foregoing, Article 87(1) of the Industrial Accident Insurance Act was applied in Supreme Court Decision 2006Da32910, April 10, 2008, Supreme Court Decision 2006Da27093, May 15, 2008, and Supreme Court Decision 2006Da44760, May 29, 2008, which—including in a case where a construction machinery lessor and its operator caused an occupational accident to an employee of a subcontractor through an accident during work at a construction site—held that even though the wrongdoer shared the risk inherent in the workplace's business by working under the direct or indirect direction and command of the same employer as the injured employee or that employer's subcontractor and the accident occurred through the materialization of that risk, the wrongdoer constituted a third party under the main text of that paragraph because there was no direct or indirect industrial accident insurance relationship with the injured employee, and further that the proviso to the same paragraph did not apply either, so that the Service that paid insurance benefits to the injured employee could exercise the injured employee's claim for damages by subrogation within the limit of the amount of such benefits; those decisions and all Supreme Court decisions to the same effect are hereby overruled to the extent that they are inconsistent with the view expressed in this Decision.

[Concurring Opinion by Justice Oh Seok-jun and Justice Seo Kyung-hwan] We cannot agree with the reasoning of the Majority Opinion that the scope of persons against whom the right of subrogation under the main text and proviso of Article 87(1) of the Industrial Accident Insurance Act may be exercised should be determined by the new criterion of "whether the risk inherent in the business or workplace was shared and manifested." The legal doctrine of prior precedents defining a "third party" under the main text of Article 87(1) of the Industrial Accident Insurance Act as "a person who, together with the employer as the insured, has no direct or indirect industrial accident insurance relationship with the injured employee" is not only reasonable but also systematically sound, and should be maintained as it is.

Where the principal contractor, etc. of a construction project enters into a contract for lease of construction machinery and provision of operating labor and has the construction machinery lessor, etc. operate the construction machinery to perform a certain portion of the construction project, there is no compelling reason, from the standpoint of the operation of industrial accident insurance, to treat this differently from "contracting"; therefore, it is reasonable to apply by analogy to the construction machinery lessor, etc. the main text of Article 9(1) of the Insurance Premium Collection Act, which provides for the blanket application to contracted businesses with respect to the handling of insurance affairs (hereinafter the "blanket application provision for contracted businesses") (provided, however, that in accordance with Article 91-15, subparagraph 1 and Article 91-16 of the Industrial Accident Insurance Act and Article 83-5, subparagraph 2 of the Enforcement Decree of the same Act, the blanket application provision for contracted businesses applies directly, without analogy, to a labor provider who personally operates the construction machinery in the capacity of lessor. In such case, with respect to the lessor who is also a labor provider, the principal contractor and the labor provider each bear one half of the industrial accident insurance premiums pursuant to Article 48-6(6) of the Insurance Premium Collection Act, etc.).

Accordingly, the principal contractor must bear the industrial accident insurance premiums for the construction machinery work, and a direct or indirect industrial accident insurance relationship is formed between the employees of the principal contractor, etc. and the construction machinery lessor, etc. As a consequence, where an employee of the principal contractor, etc. suffers an occupational accident due to the fault of the construction machinery lessor, etc. during the operation of the construction machinery, the construction machinery lessor, etc. does not constitute a third party under the main text of Article 87(1) of the Industrial Accident Insurance Act, and the Service, even if it pays insurance benefits to the injured employee, cannot subrogate the injured employee's claim for damages.

【Referenced Statutes】

Article 6, Article 87(1), Article 91-15, and Article 91-16 of the Industrial Accident Compensation Insurance Act; Article 125(2) of the former Industrial Accident Compensation Insurance Act (before amended by Act No. 18928 on June 10, 2022) (see current Article 91-16(1)); Article 87(1) of the former Industrial Accident Compensation Insurance Act (before amended by Act No. 17326 on May 26, 2020); Article 58(1) of the former Industrial Accident Compensation Insurance Act (before wholly amended by Act No. 8694 on December 14, 2007) (see current Article 87(1) of the Industrial Accident Compensation Insurance Act); Article 54(1) of the former Industrial Accident Compensation Insurance Act (before wholly amended by Act No. 8373 on April 11, 2007) (see current Article 87(1) of the Industrial Accident Compensation Insurance Act); Article 9(1) of the former Industrial Accident Compensation Insurance Act (before amended by Act No. 7049 on December 31, 2003) (see current Article 9(1) of the Act on the Collection of Insurance Premiums for Employment Insurance and Industrial Accident Compensation Insurance); Article 2 and Article 83-5, subparagraph 2 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act; Article 125, subparagraph 2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (before amended by Presidential Decree No. 33593 on June 27, 2023) (see current Article 83-5, subparagraph 2); Article 9(1) and Article 48-6(6) of the Act on the Collection of Insurance Premiums for Employment Insurance and Industrial Accident Compensation Insurance; Article 7(1) of the Enforcement Decree of the Act on the Collection of Insurance Premiums for Employment Insurance and Industrial Accident Compensation Insurance; Article 3, subparagraph 2 of the Framework Act on Social Security; Article 10(1) of the Guarantee of Automobile Accident Compensation Act; Article 682(1) and Article 724(2) of the Commercial Act

【Referenced Precedents】

Supreme Court Decision 2003Da33691, December 24, 2004 (Gong2005Sang, 189)
Supreme Court Decision 2006Da32910, April 10, 2008 (Gong2008Sang, 660) (overruled)
Supreme Court Decision 2006Da27093, May 15, 2008 (overruled)
Supreme Court Decision 2006Da44760, May 29, 2008 (overruled)
Supreme Court Decision 2008Da12408, July 28, 2011 (Gong2011Ha, 1714)
Supreme Court Decision 2014Da204666, May 26, 2016 (Gong2016Ha, 849)
Supreme Court Decision 2021Da263748, August 19, 2022