[Plaintiff, Appellant] Ilkwang Trading Co., Ltd. (limited partnership) (합자회사 일광교역), Counsel Lee Jeong-woo, Attorney at Law
[Defendant, Appellee] Head of the Seoul Southern District Office, Ministry of Labor (노동부 서울남부지방사무소장)
[Judgment Below]
Seoul High Court Decision 86Gu571 rendered on October 30, 1987
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. As to the first ground of appeal,
Article 19 of the Industrial Accident Compensation Insurance Act (산업재해보상보험법) provides that "the Minister of Labor shall collect insurance premiums from the insured in order to cover the costs required for the insurance business";
Article 20 of the same Act provides that "the insurance premium shall be the amount obtained by multiplying the total amount of wages of the business operated by the insured by the insurance premium rate applicable to the same type of business";
Article 21(1) of the same Act (before the amendment by Act No. 3818 on May 9, 1986) provides that "the insurance premium rate shall be determined by the Minister of Labor, as of September 30 of each year, by dividing it into several grades based on the accident rate over the preceding three years. In this case, one won of wages shall be the unit for calculating the insurance premium rate";
Article 46 of the Enforcement Decree of the same Act provides that "when the Minister of Labor determines the insurance premium rate pursuant to Article 21 of the Act, he shall, without delay, publicly notify the same, specifying the type and content of the business subject to its application";
The main text of Article 47 of the same Enforcement Decree provides that "where two or more types of business subject to the insurance premium rate under the notice pursuant to Article 46 are carried on within the same place of business, the insurance premium rate applicable to the business having the greater weight in terms of the number of workers, total wages, etc. (hereinafter referred to as the "principal business") shall apply."
Examining the purport of these provisions, industrial accident insurance presupposes the employer's liability to compensate workers for occupational accidents based on the principle of liability without fault, while the burden of insurance premiums is borne entirely by the employer. For this reason, the so-called graded rate system is adopted, whereby the insurance premium rate is divided into several grades according to the risk rate of accidents occurring and the corresponding degree of liability, so as to achieve equitable distribution of the burden of industrial accident insurance premiums. Furthermore, as to the method of calculation, the insurance premium is calculated by multiplying the total amount of wages by the insurance premium rate determined based on the accident rate of the business arising from the employment relationship between the employer and the workers. When the Minister of Labor determines the insurance premium rate, he must, without delay, publicly notify the same, specifying the type and content of the business subject to its application. Under the principle of one rate per business, one insurance premium rate is applied to one business or place of business; however, where two or more types of business subject to the insurance premium rate under the aforesaid notice are carried on within the same place of business, in order to avoid the inconvenience of separately calculating and paying insurance premiums according to the rate applicable to each respective business, the insurance premium rate applicable to the business having the greater weight in terms of the number of workers, total wages, etc. among the two or more types of business (the principal business) is applied.
Therefore, in determining whether the type of business of the Plaintiff company falls under the food product manufacturing business or the cargo handling business among the illustrative table of business types for the application of the industrial accident compensation insurance premium rate as publicly notified by the Minister of Labor (which also constitutes the insurance premium rate), not only the license or registered type of business of the place of business but also the actual business content and form of work must be comprehensively considered (see this Court's Decision 86Nu518 rendered on December 9, 1986), and where the above two types of business are carried on together, it must be determined which business has the greater weight in terms of the number of workers, total wages, etc.
However, according to the evidence cited by the court below and the record, the following facts may each be recognized:
① In the illustrative table of business types for the application of the industrial accident compensation insurance premium rate as publicly notified by the Minister of Labor, the beverage manufacturing business, as one of the food product manufacturing businesses, includes businesses manufacturing carbonated water, cider, and other soft drinks, as well as businesses manufacturing brewed liquor, beer, and other alcoholic beverages; and the cargo handling business includes loading and unloading work for railway freight cars, cargo trucks, and horse-drawn carts, warehouse loading and unloading work, packaging work, and other incidental integrated work, as well as various auxiliary transportation businesses and other transportation businesses not classified elsewhere, such as loading/unloading businesses and cargo packaging businesses;
② In the Plaintiff company's business registration certificate, the type of business is listed as service business and the item as loading/unloading, while the Plaintiff company concluded a service contract with non-party Chosun Brewery Co., Ltd. (조선맥주주식회사) to perform loading and unloading, inspection, bottle insertion, and product packaging work of goods designated by the non-party company, and incidental work such as loading of empty bottles, washing of crates, and cleaning of the workplace, as well as transportation, loading, and shipping of finished products and unloading work of returned beer and other miscellaneous business, and pursuant thereto the non-party company paid the prescribed wages to the Plaintiff company's employees, with the service fee for special services requested by the non-party company to be separately determined, and business was conducted accordingly;
③ The non-party company is composed of six departments: the Management Department, Production Department, Engineering Department, Research Department, General Affairs Department, and Seoul Office, with the Warehouse Section and Management Section belonging to the Management Department, and the Manufacturing Section and Product Section belonging to the Production Department. Among the Plaintiff company's workers, those in the Management Department performed, in the Warehouse Section, work such as unloading empty bottles, inserting empty bottles, common transportation of empty bottles and draft beer, cleaning and disposal of defective bottles, loading and unloading of malt and starch, warehouse organization, sorting of damaged crates and paper boxes, assembly of cup boxes, raw wheat insertion work, inspection of empty bottles, separation of other companies' empty bottles, and assembly of paper boxes; and in the Management Section, loading and shipping of draft beer, shipping of bottled beer, warehouse loading of bottled beer, and labor work (waste separation), etc. Except for a very small number of persons in charge of cleaning in the Warehouse Section and labor duties in the Management Section, the Management Department personnel were performing work belonging to the aforementioned cargo handling business. Meanwhile, the Production Department personnel, in the Manufacturing Section, performed work as assistants to the non-party company's employees, such as storing incompletely matured beer in tanks for aging and filtering the matured beer through filters; and in the Product Section, performed draft beer production, bottled beer production and assistance in machine operation, cleaning of draft beer keg caps, inspection and washing of empty bottles and inspection of bottled beer, and assisting the non-party company's employees in beer filling and label attachment work, so that the Production Department personnel were generally assisting in work belonging to the aforementioned food product manufacturing business; besides these, there were several employees at the Seoul Office in charge of beer shipment, etc.; and the total number of person-days of workers and the total amount of wages paid to them in the Management Department (excluding labor), Production Department, and other departments for the years 1982 through 1984 are as shown in the attached table appended to the judgment below.
Under the above factual relationship and legal principles, the type of business of the Plaintiff company falls under the cargo handling business in the aforesaid illustrative table of business types, and therefore, it cannot be said that the judgment below, which ruled to the same effect, contains an error in fact-finding or a misapprehension of law as pointed out. Accordingly, this argument is without merit.
2. As to the second ground of appeal,
In order for a practice of non-taxation under Article 18 of the Framework Act on National Taxes (국세기본법) as pointed out in the argument to be established, it is not sufficient that there was merely a non-taxation or omission of taxation for a certain period; there must be an expression of intent by the tax authority, whether express or implied, not to impose tax, and such expression of intent must be based on the tax authority's decision, made with knowledge that the matter was subject to taxation, not to impose tax for some necessity (see this Court's Decision 87Nu475 rendered on November 10, 1987). Furthermore, the principle prohibiting retroactive taxation under the same provision is to be interpreted as meaning that, once a practice of non-taxation has been generally accepted by taxpayers, taxation shall not be retroactively imposed with respect to conduct based on that practice.
Examining the record, it is recognized that the Defendant conducted an on-site investigation of the Plaintiff's place of business every year for eight years from 1977 to 1984, classified the type of business operated by the Plaintiff as a food product manufacturing business, and notified the Plaintiff to apply the corresponding insurance premium rate, and that the Plaintiff paid insurance premiums calculated by applying the insurance premium rate for the food product manufacturing business accordingly. However, as noted above, in the business years in question, the Plaintiff's principal type of business was not the food product manufacturing business but the cargo handling business, and the Defendant's above measure was attributable to a mistake, not to a decision made with knowledge that the Plaintiff's principal type of business was the cargo handling business, not to collect the industrial accident insurance premium according to the rate for that business for some necessity.
Even if the practice of non-taxation and the principle prohibiting retroactive taxation under Article 18 of the Framework Act on National Taxes apply mutatis mutandis to the imposition and collection of insurance premiums under the Industrial Accident Compensation Insurance Act, it cannot be said that the Defendant's disposition imposing the insurance premium in this case, or the judgment below which held such disposition to be lawful, contains an error in violation of the practice of non-taxation (including violation of the principle of good faith) or the principle prohibiting retroactive taxation as pointed out. Accordingly, this argument is without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the Justices involved.
Presiding Justice Kim Yong-jun, Justice Yoon Kwan, Justice Kim Sang-won