Home > Notices > Contributions
 
  Notices
Notices
Contributions

  Contributions
Subject   April 2019 - Extinctive prescription system under the Labor Standards Act
Extinctive prescription system under the Labor Standards Act

I. Introduction
The extinctive prescription system recognizes the status of rights or claims that have not been exercised for a certain period of time, even if that status does not conform to a true rights relationship. In other words, if people do not exercise specific rights for a certain period of time, they can no longer exercise those rights due to extinctive prescription. The reason for this is to limit rights that have not been exercised, and to promote the establishment of legal security and expedite claims or the use of rights. The Labor Standards Act (LSA) also attaches extinctive prescription to non-performance of rights to promote their exercise and thereby protect workers.
Since the extinctive prescription for deferred wages kicks in after only three years, the amount of claimable wages is gradually reduced as the period before extinctive prescription passes. In particular, at the stage of petitions and accusations filed with the Ministry of Employment and Labor, suspensions of the extinctive prescription on deferred wages are not allowed, and so action in a civil court is required. In other words, as labor inspectors handle investigations of complaints regarding deferred wages, and determine the facts behind the delay by examining the workers affected and their employers, these legal actions have no effect on the extinctive prescription. On the other hand, claims for compensation for occupational accidents are recognized as filing for work compensation with the court. The extinctive prescription is suspended and claims for industrial accident compensation can be extended to 5 years.
Since they are both special laws designed to protect workers, the LSA and the Industrial Accident Compensation Insurance Act (IACI) differ from other laws in terms of suspensions and duration before the extinctive prescription kicks in. I will look into the overall extinctive prescriptions in the LSA.

II. Extinctive Prescription

1. Concept
‘Extinctive prescription’ refers to expiration of a right that has not been exercised. The principle is that the law does not protect those who ‘sleep’ on it. This means that if people have a right they can exercise but do not for a certain period of time, they will not be able to exercise it, so that the state of legal tranquility already established will be maintained. Most extinctive prescriptions in labor law start at three years. A concept similar to the extinctive prescription under the LSA is ‘exclusive period.’ After expiration of an exclusive period, no further legal appeal can be made. Since it aims at the rapid establishment of legal relations, exclusive period differs from extinctive prescription.

2. Details of extinctive prescription
1) Wage bonds under the Labor Standards Act
Wage bonds will expire unless the claims for deferred wages are exercised within three years (Article 49 of the LSA). Wage bonds can be categorized as monthly salary, retirement allowance, unused annual allowance and so on. Monthly wages (base salary, overtime allowance, holiday work allowance, etc.) are paid on the salary payment date and rights can be exercised from the time when they are not paid, so salary calculation will begin from the regular payment date. Bonuses shall be calculated when the right to receive the bonus is incurred, while severance pay shall be calculated from the date of retirement due to the obligation to pay the employee on that day.
Annual paid leave is calculated from the date of conversion to a wage claim after using one year for granted annual leave. In other words, if annual paid leave is managed on a yearly basis, if an employee enters 2018, his annual paid leave from January 1, 2019 to December 31, 2019 will be granted on the first day of 2020 15 days' annual leave if he works at 80 percent or more for the period. During 2020, annual leave shall be used. , The starting point for a claim for unused annual leave shall be 2021, and this right shall exist for three years (Article 36, Article 60 of the LSA).
2) Benefits under the Industrial Accident Compensation Insurance Act (IACI Act)
Rights protected by the IACI Act shall extinguish unless they are exercised within 3 years of when the right to claim compensation for a work injury or disease begins. However, the right to receive disability benefits, survivor benefits, funeral expenses benefit, compensation pensions for pneumoconiosis, and survivor’s pensions for pneumoconiosis will expire within five years if not exercised (enacted Dec. 13, 2018, Law No. 15665). The insurance benefits of the IACI Act can be divided into the following three categories: ① Claims for continuous insurance benefits, ② Claims for lump sum insurance benefits, and ③ Claims for pension benefits. Each type of pension insurance benefit has a different point when the extinctive prescription kicks in.
① Claims of continuous insurance benefits include claims to medical care benefits and work suspension benefits. Medical care benefits are paid when a worker is injured or becomes sick in relation to work, and in principle is paid as reimbursement of actual medical expenses (Article 40 of the IACI Act). That is, the period before the extinctive prescription for the right to claim this insurance benefit kicks in begins the day after the cost of medical treatment is paid, not when a worker’s occupational injury or illness first occurs. Since the work suspension benefit is paid for a period that a worker who has been injured or sick cannot work, the extinctive prescription begins the day after the worker first becomes unable to work so they can receive medical treatment (Article 52 of the IACI Act).
② Claims for lump-sum insurance benefits include claims to lump sum payments of disability compensation, survivor compensation, or an allowance of some sort. A lump sum disability compensation payment shall be paid to a worker who has been injured on the job or suffered from a work-related illness, and whose disability continues after recovery. A disability benefit is provided when a worker has completed his/her treatment and the disability is fixed (Article 57 of the IACI Act). Survivors' compensation is paid in the form of a pension in principle, but if there is no legal beneficiary, a lump sum compensation is possible. The period before the extinctive prescription kicks in begins on the day after the relevant worker has died (Article 62 of the IACI Act). Funeral expenses are only paid when they have actually occurred (Article 71 of the IACI Act).
③ Pension insurance benefits include pensions for disabilities and survivors, with payment beginning the first month after the month in which the reason for payment occurred.
In the case of noise-induced hearing loss, the Labor Welfare Corporation's Guidelines for Work Disabilities previously claimed that the 3 years’ limitation begins "when leaving the noisy workplace," but the court ruled that it could be considered to have begun at the time of "healing" instead. As a result, in 2016, the Ministry of Employment and Labor changed the extinctive prescription for noise-induced hearing loss so that the calculation date begins from diagnosis. Therefore, in recent cases, the court has ruled that "the extinctive prescription for a person diagnosed with noise-induced hearing loss after a long absence from the noisy workplace cannot be considered to have come into effect even if he/she has applied for a disability benefit after three years have passed from the time of diagnosis."

3. The extinctive prescription for wage bonds and the extinctive prescription for prosecution
Extinctive prescription refers to expiration of the period during which an employee who has the right to receive compensation may exercise a claim against the employer in the event of a delay in the payment of w
[List]

179 (1/9)
No Subject
179 November 2020 - Employment Contracts and the Principle of Priority on Favorable Conditions  
178 October 2020 - Korean labor law and Items to be Considered When Writing an Employment Contract  
177 September 2020 - Working Conditions for Minors  
176 August 2020 - Guidelines for Determining if Subcontracting is Actually Illegal Dispatch and Related Cases  
175 July 2020 - Korean Labor Law and Criteria for Determining Whether a Truck Owner/Driver is an Employee  
174 June 2020 - Labor Union Act and Criteria for Determining Whether a Unified Bargaining Channel Can Be Separated  
173 May 2020 - Whether Union Activities by Union Officials is Company Work  
172 April 2020 - Work-from-Home Systems  
171 March 2020 - Corona Virus Infections and Shut-down Allowances  
170 February 2020 - Recess Periods and Designing a Working Hour System  
169 January 2020 - How to Introduce and Use Flexible Working Systems  
168 December 2019 - Judgment of Employee Status, with a Checklist  
167 November 2019 - Social Insurance and Insurances Exclusive to Foreign Workers  
166 October 2019 - Preventing Unpaid Wages and the Small Amount Insolvency Payment Claim System  
165 September 2019 - Reasons for Disqualification of a Labor Union  
164 August 2019 - The Employer's Obligations in the Recruitment Process  
163 July 2019 - Extension of Working Age for Manual Workers and the Related Legal Impact  
162 June 2019 - Case Study : Dismissal after Signing Employment Contract but before Official Start of Work  
161 May 2019 - Contractual Working Hours and the Inclusive Wage System  
April 2019 - Extinctive prescription system under the Labor Standards Act  

[First][Prev] [1] 2 3 4 5 6 7 8 9 [Next] [Last]
   

[Address] A-1501 406, Teheran-ro, Gangnam-gu, Seoul 06192 Korea (Daechi-Dong, Champs Elysees Center)

Tel : 02-539-0098, Fax : 02-539-4167, E-mail : bongsoo@k-labor.com

Copyright© 2012 K-Labor. All rights reserved.