Open Decision Ledger · Labour & industrial accidents
Who must prove the ground for correcting a special average wage
Supreme Court, Oct. 27, 2022, 2018Du53238 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 평균임금정정신청및보험급여차액청구부지급처분취소
Official text on the National Law Information Center
Question
Where a mine had closed and the Workers' Compensation and Welfare Service calculated the average wage of a worker with a pneumoconiosis-related disease on the 'all sizes' wage basis rather than the '500 or more employees' basis, does 'the day of suspension or closure' in Article 26(3) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act mean the day normal business ceased, and who must prove the concrete grounds pleaded for correcting that average wage?
Holding
The Court accepted the reading that the day of suspension or closure means the day the mine was closed and normal business ceased, and found no error in the lower court's handling of the average-wage special rule. It held, however, that the beneficiary who applies for correction must prove the concrete grounds she pleads, because the authority refused the correction on the basis of judging those grounds. The material adopted could not show that the mine had 500 or more workers in 1974-1977, so the contrary inference misapprehended the burden of proof and breached the rules of logic and experience; the judgment was reversed and the case sent back to the Seoul High Court.
Points at issue, verbatim
구 산업재해보상보험법 시행령 제26조 제3항의 ‘휴업 또는 폐업한 날’은 광업소가 폐광하여 정상적인 영업이 이루어지지 않게 된 때를 의미하는 것으로 본 원심판결을 수긍한 사례
Unofficial English translation
a case in which the judgment of the court below, which held that the 'day of suspension of business or closure of business' in Article 26, paragraph (3) of the Enforcement Decree of the former Industrial Accident Compensation Insurance Act means the time when the mining site was closed down and normal business ceased to be conducted, is affirmed
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
그 구체적인 정정신청 사유의 존재는 정정신청을 한 보험급여 수급권자가 증명할 책임이 있다.
Unofficial English translation
The beneficiary of insurance benefits who filed the correction application bears the burden of proof as to the existence of those specific grounds for the correction application.
Factors
- 구 산업재해보상보험법 제38조 제5항 등에서 정한 ‘평균임금 산정 특례’를 적용하되 매월노동통계조사보고서상의 ‘전규모’의 사업장에 소속된 근로자의 임금을 기초로 평균임금을 산정하자
- 근로복지공단이 광업소의 규모를 확인할 수 있는 객관적인 자료가 없다는 이유로 평균임금정정신청 및 보험급여차액청구를 받아들이지 않은 사안에서
- 구체적인 정정신청 사유의 존재에 관한 증명책임의 소재(=정정신청을 한 보험급여 수급권자)
Unofficial English translation
• applied the 'special rule for calculating average wages' prescribed in Article 38, paragraph (5), etc. of the former Industrial Accident Compensation Insurance Act but calculated the average wage on the basis of the wages of employees belonging to workplaces of 'all sizes' as stated in the Monthly Labor Statistics Survey Report
• Where the Korea Workers' Compensation & Welfare Service did not accept the application for correction of the average wage and the claim for the difference in insurance benefits on the ground that there was no objective material by which the size of the mining site could be confirmed, and
• the allocation of the burden of proof as to the existence of specific grounds for the correction application (= the beneficiary of insurance benefits who filed the correction application)
Relation to precedent
States a new standard Read from the decision
그 구체적인 정정신청 사유의 존재는 정정신청을 한 보험급여 수급권자가 증명할 책임이 있다.
Unofficial English translation
The beneficiary of insurance benefits who filed the correction application bears the burden of proof as to the existence of those specific grounds for the correction application.
Decisions referred to
해당 본문 참조
Burden of proof
The party asserting Stated in the decision
그 구체적인 정정신청 사유의 존재는 정정신청을 한 보험급여 수급권자가 증명할 책임이 있다.
Unofficial English translation
The beneficiary of insurance benefits who filed the correction application bears the burden of proof as to the existence of those specific grounds for the correction application.
Open question and revisit condition
When the workforce of a workplace must be established from records decades old, what evidence is enough to discharge the beneficiary's burden on the size of the establishment in the years in issue?
The remand judgment of the Seoul High Court, once it decides whether the mine had 500 or more workers around 1974-1977, will show how the burden is met on such a file. Any amendment to Article 26 of the Enforcement Decree, now Article 25, or to Article 38(5) of the Act, now Article 36(6), or a later decision on who proves a correction ground, would call for a fresh reading.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 6 (relation to precedent).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary reading states the rule as a requirement, while the independent reading applies the closure and burden rules to the facts of this mine and the evidence below.
구 산업재해보상보험법 시행령 제26조 제3항의 ‘휴업 또는 폐업한 날’은 광업소가 폐광하여 정상적인 영업이 이루어지지 않게 된 때를 의미하는 것으로 본 원심판결을 수긍한 사례Axis 6 (Relation to precedent): Primary “States a new standard” vs Independent “Cannot be determined”
The primary reading treats the judgment as setting a new standard for the closure date and burden, while the independent reading does not identify any precedent relationship.
그 구체적인 정정신청 사유의 존재는 정정신청을 한 보험급여 수급권자가 증명할 책임이 있다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 10 July 2018 (2018Nu41183), found that the mine had closed around 1975-1978 and that only clean-up work on the abandoned mine, employing 50 to 60 people, had continued afterwards. Since Article 38(5) of the former Industrial Accident Compensation Insurance Act and Article 26 of its former Enforcement Decree aim ultimately to protect workers, and reading the closure of a mine into 'suspension or closure' does not depart from the ordinary meaning of the words, it held that 'the day of suspension or closure' means the day normal business ceased. It also inferred that the mine had 500 or more workers around 1974-1977 from the Gwangyang city gazette, a former chief miner's statement, and the fact that benefits computed on the '500 or more' wage basis had been paid to 12 other pneumoconiosis victims from the same mine.
Supreme Court standard: The Supreme Court found no error in the reading of 'the day of suspension or closure'. On the size of the workforce it held the inference unsound: the 800 employees recorded in the gazette were likely an estimate for a much earlier period, given the mineral production figures printed beneath it; the statement put the figure of 2,100-odd workers in the 1960s and described the 1970s as clean-up work by 50 to 60 people; and the 12 earlier payments had been decided by the Ministry of Labor before the work was entrusted to the defendant, on grounds that could not be traced. Since no other evidence supported the finding, the lower court had misapprehended the burden of proof and exceeded the limits of free evaluation, so the judgment was reversed and the case remanded to the Seoul High Court.
Distinguishing conditions
- A mine or workplace that had not been suspended or closed and continued normal business, since the provision's day means the day normal business ceased.
- A dispute in which the authority refused the correction without judging the concrete grounds the beneficiary pleaded, since the burden rule presupposes a refusal premised on such a judgment.
- A file that contains objective material fixing the workforce of the mine in the very years in issue, since the Court held the inference lacking on this record only.
Record verification notes
First fix, from the record, the date on which normal business at the workplace actually stopped, since the whole special rule turns on that day. Then gather what ties a workforce figure to 1974-1977 itself, because the Court treated the gazette's 800 and the statement's 2,100 as belonging to earlier years, and it refused to rely on payments made by the Ministry of Labor without traceable reasons. Check also which version of the law applies: the decision applied Article 38(5) and Article 26(3) as they stood before the amendments of 11 April 2007 and 25 June 2008.
From the official text
Points at issue
[1] 광업소에서 근무했던 갑이 진폐합병증으로 요양대상자로 인정되어 근로복지공단이 갑에게 장해일시금이나 요양급여를 지급함에 있어 구 산업재해보상보험법 제38조 제5항 등에서 정한 ‘평균임금 산정 특례’를 적용하되 매월노동통계조사보고서상의 ‘전규모’의 사업장에 소속된 근로자의 임금을 기초로 평균임금을 산정하자, 갑이 매월노동통계조사보고서상의 ‘500인 이상’의 사업장에 소속된 근로자의 임금을 기초로 평균임금을 산정하여야 한다고 주장하면서 근로복지공단에 평균임금정정신청 및 보험급여차액청구를 하였으나, 근로복지공단이 광업소의 규모를 확인할 수 있는 객관적인 자료가 없다는 이유로 평균임금정정신청 및 보험급여차액청구를 받아들이지 않은 사안에서, 구 산업재해보상보험법 시행령 제26조 제3항의 ‘휴업 또는 폐업한 날’은 광업소가 폐광하여 정상적인 영업이 이루어지지 않게 된 때를 의미하는 것으로 본 원심판결을 수긍한 사례 [2] 구 산업재해보상보험법 시행령 제26조에서 정한 업무상 질병이환자에 대한 평균임금 산정특례에 따라 정해진 평균임금에 대하여 보험급여의 수급권자가 구체적인 사유를 들어 정정신청을 하고 피고가 사유에 대한 판단을 전제로 정정을 거부하여 그 거부처분에 대한 취소소송이 제기된 경우, 구체적인 정정신청 사유의 존재에 관한 증명책임의 소재(=정정신청을 한 보험급여 수급권자)
Unofficial English translation
[1] Where A, who had worked at a mining site, was recognized as a person subject to medical treatment due to complications of pneumoconiosis, and the Korea Workers' Compensation & Welfare Service, in paying A a lump-sum disability benefit or medical benefit, applied the 'special rule for calculating average wages' prescribed in Article 38, paragraph (5), etc. of the former Industrial Accident Compensation Insurance Act but calculated the average wage on the basis of the wages of employees belonging to workplaces of 'all sizes' as stated in the Monthly Labor Statistics Survey Report, and A asserted that the average wage must be calculated on the basis of the wages of employees belonging to workplaces of '500 or more employees' as stated in the Monthly Labor Statistics Survey Report, and filed with the Korea Workers' Compensation & Welfare Service an application for correction of the average wage and a claim for the difference in insurance benefits, but the Korea Workers' Compensation & Welfare Service did not accept the application for correction of the average wage and the claim for the difference in insurance benefits on the ground that there was no objective material by which the size of the mining site could be confirmed, a case in which the judgment of the court below, which held that the 'day of suspension of business or closure of business' in Article 26, paragraph (3) of the Enforcement Decree of the former Industrial Accident Compensation Insurance Act means the time when the mining site was closed down and normal business ceased to be conducted, is affirmed [2] Where, with respect to the average wage determined in accordance with the special rule for calculating the average wage for a person who has contracted an occupational disease prescribed in Article 26 of the Enforcement Decree of the former Industrial Accident Compensation Insurance Act, the beneficiary of insurance benefits applies for correction stating specific grounds, and the defendant refuses the correction on the premise of a determination as to those grounds, and an action for revocation is filed against such refusal disposition, the allocation of the burden of proof as to the existence of specific grounds for the correction application (= the beneficiary of insurance benefits who filed the correction application)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 구 산업재해보상보험법(2007. 4. 11. 법률 제8373호로 전부 개정되기 전의 것) 제38조 제5항(현행 제36조 제6항 참조), 구 산업재해보상보험법 시행령(2008. 6. 25. 대통령령 제20875호로 전부 개정되기 전의 것) 제26조 제3항(현행 제25조 제5항 참조) [2] 구 산업재해보상보험법 시행령(2008. 6. 25. 대통령령 제20875호로 전부 개정되기 전의 것) 제26조(현행 제25조 참조), 행정소송법 제26조[증명책임]
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