Reimbursement (Indemnity) Claim | Analysis of a Supreme Court Judgment on the Average Number of Working Days of Daily Wage Workers

■ 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.

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.

“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.)