CONTENTS
- 1. Parties to the Litigation and Its Progress
- - Determinations of the First and Second Instances
- 2. The Supreme Court's Determination on the Litigation
- 3. Precedent Relevant to the Litigation
- - The Litigation, Daeryun's Strategy
1. Parties to the Litigation and Its Progress
■ Parties to the Litigation
- Plaintiff: Korea Workers' Compensation and Welfare Service
- Defendant: Insurance Company A
■ Background of the Litigation
1> B, a daily wage worker, fell ten years ago while carrying out the demolition of a building when a safety net connected to a crane overturned, and he suffered serious injuries, including fractures of the left ilium and tibia.
2> The Korea Workers' Compensation and Welfare Service recognized B's accident as an ‘occupational accident’ and paid B approximately 430 million won, including temporary disability benefits and disability benefits.
3> Thereafter, the Korea Workers' Compensation and Welfare Service filed a reimbursement (indemnity) claim against the insurer of the crane involved in the accident, seeking to have it bear a portion of the amount.
Determinations of the First and Second Instances
1> Based on B's work records and other materials, the court of first instance found that B had worked an average of ‘19 days’ per month and calculated the lost earnings accordingly, holding that Company A should pay the Korea Workers' Compensation and Welfare Service approximately 71 million won. (* Lost earnings: the income that the party would have earned in the future had the accident not occurred, calculated by multiplying the daily wage rate for day labor by the average monthly number of working days.)
2> The second instance began upon the appeal of the Korea Workers' Compensation and Welfare Service, and the appellate court determined that, in light of existing Supreme Court precedents, B should be regarded as having worked ‘22 days’ per month, and that Company A should pay the Korea Workers' Compensation and Welfare Service an amount greater than 71 million won.
3> Company A then filed a final appeal, and the matter was passed to the Supreme Court.
2. The Supreme Court's Determination on the Litigation
The Supreme Court issued a determination differing from prior practice, holding that “the average monthly number of working days of a daily wage worker may not be calculated to exceed 20 days.”
Earlier, in 1992, the Supreme Court had held that the number of operative working days for a worker engaged in physical labor could be estimated at an average of 25 days per month.
Subsequently, in 2003, the Supreme Court presented a new view that, in consideration of relevant statistics and other factors, the average monthly number of operative working days should be regarded as ‘22 days’ rather than 25 days.
Accordingly, most lower courts had since calculated the amount of compensation based on ‘22 days.’
In 2024, however, the Supreme Court once again changed that standard to ‘20 days,’ for the following reasons.
“On September 15, 2003, our country amended the Labor Standards Act by Act No. 6974, reducing the maximum weekly working hours from 44 hours to 40 hours, and
(omitted) with the introduction of substitute public holidays and the possibility of designating temporary public holidays, the number of annual public holidays increased, so that there have been continuous changes in the social and economic structure, and
with the emphasis on improving workers' quality of life and on work-life balance, many aspects of working conditions and living conditions have also changed from the past.”
Given the many changes in social atmosphere and institutions over this period, the Supreme Court's determination is precisely that the recognizable average monthly number of operative working days should likewise change.
The Supreme Court further held that the lower court should have examined the various circumstances concerning working conditions in somewhat greater detail in order to determine the number of operative working days but had failed to do so, and it remanded the case to the lower court.
3. Precedent Relevant to the Litigation
“Where the lost earnings of an urban daily wage worker, whose working conditions vary from year to year depending on the industrial environment, are assessed on the basis of statistical facts regarding the worker's daily wage, the number of operative working days must likewise be reasonably found by taking into account the average monthly number of working days shown in various statistical materials, including facts that are notorious to the court, the working conditions by occupation, and other relevant circumstances, supplemented by other appropriate evidence. (See Supreme Court, Decision of October 10, 2003, 2001 Da 70368, among others.)
The Litigation, Daeryun's Strategy
The change in the Supreme Court's view on the average monthly number of operative working days for daily wage workers comes 21 years after 2003, and its significance is considerable.
It is particularly noteworthy because the concept of the average monthly number of operative working days applies broadly not only to ordinary manual laborers but also to economically inactive persons such as homemakers, minors, and students.
This Supreme Court decision appears likely to have a significant effect on the various damages claims currently pending or to be filed in the future.
That said, ‘20 days’ does not apply uniformly in every case.
If a party clearly proves that they ordinarily worked 20 days or more, the party may have a number of operative working days exceeding 20 days recognized.
The Corporate Legal Group of Daeryun Law Firm LLP quickly grasps the rapidly changing labor environment and provides legal advisory services tailored to each company.
In addition to advisory services alone, it also provides one-stop services covering litigation representation and follow-up management, so if you have any related inquiries, you are welcome to contact Daeryun at any time.
