Foreign
Worker Fatality and Survivors’ Compensation: Beneficiary Status, Industrial
Accident Benefits, and Civil?Criminal Settlement

Bongsoo Jung
(Korean labor attorney, KangNam labor law firm)

 

I. Introduction

At approximately 3:00 p.m. on September 16, 2024, a
foreign worker died in an occupational accident while operating a lathe at a
small manufacturing company with about 15 employees. The worker was processing
a round metal rod when his glove became caught in a press machine, pulling him
into the machine and causing his immediate death. The deceased was a 41-year-old
Cambodian national who first came to Korea in 2015 on an E-9 (non-professional
employment) visa. He had worked at the same workplace for ten years and held an
E-7-4 skilled worker visa, which allows for long-term residence. In 2021, he and
his wife divorced amicably and he was reportedly living in Korea with his Cambodian
girlfriend. After news of his death was reported, the parents of the deceased
traveled from Cambodia to attend the funeral, and retained a labor attorney to
apply for survivors’ benefits.

On September 19, 2024, the labor attorney (author of
this article) received a phone call from Canada. The caller stated that he had
married the former wife of the deceased and was raising the deceased man’s 14-year-old
daughter. He requested that the labor attorney handle all matters related to
survivors’ benefits and other procedures. Accordingly, the attorney was
formally delegated authority to handle the industrial accident case by both the
ex-wife?who is the legal representative of the deceased man’s child, the
first-priority beneficiary?and the ex-wife’s current husband.

Throughout the handling of this industrial accident
case, multiple issues arose. First, (1) it was necessary to verify the
first-priority beneficiary among the deceased’s girlfriend, parents, and minor
child. Second, (2) the processes required to establish the cause of the
accident and to prove the deceased’s family relations?essential for industrial accident
compensation?had to be completed. Because the deceased was a foreign national,
obtaining and submitting documentation to verify these facts required
considerable time. Third, (3) during the process of pursuing civil and criminal
settlements, persuasion of the company as to its responsibility was necessary.
 In the following sections, I will
explain how these issues were resolved.

 

II. Confirmation of Beneficiary
Eligibility

1. Key Issues

The deceased and his wife divorced in Cambodia by
mutual agreement in 2021. His former spouse later remarried, this time to a
Canadian national, and was living in Canada, raising the minor daughter (age
14) from her marriage with the deceased. Although there were rumors that the
deceased had been cohabiting with a Cambodian girlfriend in Korea, she did not
claim to be in a de facto marital relationship during the application process for
industrial accident compensation. Meanwhile, the deceased’s parents, who were
living in Cambodia, came to Korea to handle the funeral and repatriated the
body to their home country.

 

2. Relevant Legal Basis

(1) Industrial Accident Compensation Insurance
Act (hereinafter “IACI Act”) Article 63 (Scope of Beneficiaries of
Survivors’ Pension) Paragraph 3: Among eligible beneficiaries of survivors’
pension, the order of priority for the right to receive benefits is: spouse →
children → parents → grandchildren → grandparents → siblings.

(2) IACI Act,Article 64 (Loss of
Eligibility and Suspension of Survivors’ Pension) Paragraph 1: A
beneficiary of a survivors’ pension loses eligibility if any of the following
apply to said beneficiary: ① Death; ② Remarriage; (remaining items omitted)

Paragraph 2: If a beneficiary with the right to receive a survivors’ pension
loses their eligibility, the right transfers to another beneficiary of the same
priority if such person exists; if not, it transfers to the next priority.

(3) Criteria for Recognizing a De Facto Marital
Relationship: To establish a de facto marital relationship, the parties
must have (i) a subjective intent to marry, and (ii) an objective marital life
that can be socially recognized as a family-like, conjugal relationship.[1] Such
marital life must involve: ① cohabitation, ② an economic partnership, and ③
social recognition as a couple.

 

3. Determination of Beneficiary
Eligibility

The IACI Act applies equally to foreign workers and
Korean nationals. In other words, industrial accident insurance coverage and
entitlement to survivors’ benefits apply regardless of nationality, visa type,
or even whether the deceased was in the country legally or not.

In this case, the alleged de facto partner did not
claim beneficiary status, and therefore was excluded. Meanwhile, the deceased’s
parents retained a labor attorney and applied for a lump-sum survivors’
benefit. In response, this labor law office filed a survivors’ compensation
claim on behalf of the deceased’s minor daughter, submitting documentation
(including a family relations certificate) proving her status.

The
Korea Workers’ Compensation & Welfare Service (KCOMWEL) reviewed the application
and confirmed, pursuant to Article 63(3) of the IACI Act, that the order of
beneficiaries is: ① spouse, ② children, ③ parents, etc. They reaffirmed that
this order of priority is absolute, and a lower-priority beneficiary cannot
receive benefits if a higher-priority beneficiary exists. Accordingly, KCOMWEL
dismissed the parents’ application and approved the survivors’ compensation
claim made on behalf of the deceased’s minor daughter.

 

III. Issues Related to
Industrial Accident Processing for Foreign Nationals

 

1. Key Issues

When a worker dies due to a work-related cause, the
Korea Workers’ Compensation & Welfare Service (KCOMWEL) pays survivors’
benefits and funeral expenses. Survivors’ benefits amount to 1,300 days of
the worker’s average daily wage, which may be received entirely as a
pension or as a 50:50 combination of pension and lump-sum payment. However, for
foreign nationals, the entire amount is paid as a lump-sum benefit.

Although applying for survivors’ benefits may seem
straightforward, every aspect?including ① the work-related nature of the
accident, ② verification of the deceased’s identity, and ③ proof of the
beneficiary’s family relationship?must be substantiated with supporting
evidence. Therefore, thorough preparation of documentation is essential. To
prove the fact of death in relation to a work accident, the required documents
include:

• 
  death certificate or
  postmortem inspection report,
  


• 
  autopsy report,
  


• 
  119 emergency activity
  log (fire department),
  


• 
  police accident
  confirmation,
  


• 
  medical records, etc.
  

To verify the deceased’s identity, documents such as
a certificate of foreigner registration records and the deceased’s
Alien Registration Card are required. To prove the beneficiary’s
relationship to the deceased, the required documents include:

• 
  family relations
  certificates,
  


• 
  confirmation of
  eligibility for survivors’ benefits and funeral expenses, etc.
  

Additional
documentation may include:

• 
  civil settlement
  agreement with the company,
  


• 
  bank account copy (with
  SWIFT code for foreign accounts),
  


• 
  funeral execution
  confirmation, and more.
  

In this case, because the deceased had legally
divorced his spouse, it was necessary to prepare a family relations certificate
clearly indicating the daughter (as the second-priority beneficiary after the
spouse), as well as the divorce-related court judgment. These documents
required translation and notarization, and further authentication at the
Embassy of Cambodia in Korea. Preparing all of these official documents
required substantial time.

 

2. Relevant Legal Provisions

Article 62 (Survivors’
Benefits) of the Industrial Accident Compensation Insurance Act (IACI Act) ① Survivors’ benefits shall be paid to the deceased worker’s survivors
if the worker dies from work-related causes.

② Survivors’ benefits shall be paid as a survivors’ pension or survivors’
lump-sum payment (1,300 days of the average wage). However, the lump-sum
payment is provided only when no person eligible for the pension exists at the
time of the worker’s death.

Article 71 (Funeral Expenses) ① Funeral expenses shall be paid when a worker dies from work-related causes,
in an amount equivalent to 120 days of the average wage, paid to the
family members who held the funeral. If no family members are available to
conduct the funeral, or if unavoidable circumstances require a non-family
member to do so, the actual funeral costs shall be paid within the limit of 120
days of the average wage. (For reference, the maximum funeral expense amount
for 2025 is KRW 18,685,600, and the minimum amount is KRW 13,451,380.)

 

3. Determination of Industrial
Accident Compensation Amount

When applying for survivors’ compensation and
funeral expenses, KCOMWEL reviewed all required documents submitted through the
authorized representative before approving payment. The agency verified: ① that the worker’s death was work-related, ② that
the claimant was the first-priority beneficiary, ③ that
the average wage calculation used in the survivors’ benefit application was
accurate, and ④ that the employer had actually paid the
funeral expenses.

Survivors’
benefits amount to 1,300 days of average daily wage, which in this case
totaled KRW 130 million. Funeral expenses amount to 120 days of
average daily wage, normally KRW 12 million. However, because this
amount fell below the statutory minimum, KCOMWEL applied the minimum funeral
expense amount of KRW 13,451,380. Since the employer had already
prepaid KRW 11 million for the funeral, only the remaining balance was paid to
the family. Accordingly, KCOMWEL transferred the full survivors’ benefit amount
and the remaining funeral expense difference directly to the beneficiaries’
foreign bank account.

 

IV. Issues in Civil and
Criminal Settlements

1. Key Issues

When a worker dies due to inadequate safety measures
or other negligence on the part of the employer, the company bears civil
liability for damages in addition to paying statutory industrial accident compensation.
Civil damages cover all losses suffered by the deceased that bear a reasonable
causal connection to the employer’s negligence. These are generally categorized
into: ① Passive damages such as
lost future income (income the deceased would have earned until retirement) and
lost retirement benefits, ② Active damages such as funeral expenses, and ③ Emotional
damages such as compensation for mental suffering
(pain and suffering). If the total civil damages exceed the amount of
industrial accident compensation, the employer must pay the excess amount as
civil compensation.

In work-related fatal accidents, if a direct
perpetrator?victim relationship exists, the victim’s family may file a criminal
complaint for involuntary manslaughter (negligent homicide) against the
responsible individual. In this case, however, there was no specific company
employee who was directly identifiable as the liable perpetrator. Nevertheless,
since the accident occurred in a workplace where a serious accident took place,
the company had to undergo a labor inspector investigation in accordance with the
Occupational Safety and Health Act to determine whether safety
regulations were violated. If such violations are found, criminal penalties
follow. Moreover, under the Serious Accidents Punishment Act, introduced
in 2021, employers and companies face severe criminal penalties for serious
accidents arising from inadequate safety management. In such criminal
proceedings, it is possible for the victim’s family to demand a criminal
settlement payment in exchange for filing petitions for leniency or
statements of non-punishment.

In this case, disputes arose concerning the
appropriate amount for civil damages and the additional criminal settlement
sum. Ultimately, the parties reached an amicable agreement, which is examined
in more detail below.

 

2. Basis for Calculating Civil
and Criminal Settlement Amounts

The most critical factor in calculating civil
damages is determining the degree of employer negligence that was at play. This
can be assessed by reviewing precedents from similar industrial accident cases.
Examples include:

(1) Changwon District Court ruling on November 5, 2021, Decision
2020gadan9377

A Sri Lankan worker suffered severe injuries when
his hand was pulled into a bending machine during blade-replacement work.

The court held the employer liable because: ① the worker did not receive sufficient machine-operation training, ②
the worker was assigned to the machine while the person in
charge was absent, and ③ no additional safety devices
beyond a fixed lever were installed. The court also found contributory
negligence on the part of the plaintiff for failing to take reasonable care for
his own safety. Accordingly, the defendant’s liability for damages was limited
to 80% (with 20% contributory negligence attributed to the plaintiff).

(2) Jeonju District Court ruling on January 23, 2018, 2015gadan 357

Plaintiff A, who had been hired as a daily
construction laborer at a sashimi restaurant run by the defendant, fell from a
height of 6.5 meters while dismantling the roof panels of an aquarium tank. At
the time of the accident, no safety rails or safety nets had been installed,
and the plaintiff was not wearing a safety helmet or safety harness.

The court acknowledged the defendant’s negligence as
an employer for failing to fulfill the duty of protection, such as providing
safety equipment and conducting safety training. The court also found
contributory negligence on the part of Plaintiff A for failing to observe basic
precautions, including wearing safety gear. Accordingly, the defendant’s
liability was limited to 70% (with 30% contributory negligence assigned to the
plaintiff).

(3) Changwon District Court ruling on January 15, 2020,
2019Gahap100752

This case concerns a claim for damages arising from
a fatal fall at a construction site. The deceased, J, was an employee of
Defendant E Co., Ltd., and died after falling from a height of 13 meters while
performing steel-frame work. The plaintiffs were the heirs of the deceased, and
they filed a claim for damages against the defendant.

The court found that the employer violated its duty
to take safety measures because essential safety devices?such as work
platforms, fall-prevention nets, and safety harness installations?were not
provided. Due to this violation, the defendant was convicted in a criminal
trial of occupational negligence resulting in death and violation of the Industrial Safety and Health Act. The
court also recognized contributory negligence on the part of the deceased
(failure to use the aerial work platform, non-compliance with safety rules) and
therefore limited the defendant’s liability to 70% (with 30% contributory
negligence attributed to the plaintiffs).

 

3. Settlement Proposal from the
Bereaved Family and Company Acceptance

Civil damages are calculated by estimating: ① lost
earnings and lost retirement benefits the worker would have received until
retirement, and ② KRW 100 million in damages for pain and suffering, then applying the percentage of employer
burden for negligence. Based on the court precedents above, the family
calculated the employer’s negligence at 50% to80%, and added
with a criminal settlement amount of KRW 50 million, then deducted the
industrial accident compensation already received.[2] The
resulting proposals were:

(1) Employer
negligence 80%:

Civil damages KRW 346,694,542 + Criminal settlement KRW 50,000,000 ? Industrial
accident compensation KRW 143,451,380 = KRW 253,243,162

(2) Employer negligence 70%:

Civil damages KRW 324,020,223 + Criminal settlement KRW 50,000,000 ? Industrial
accident compensation KRW 143,451,380 = KRW 230,568,843

(3) Employer negligence 60%:

Civil damages KRW 283,445,906 + Criminal settlement KRW 50,000,000 ? Industrial
accident compensation KRW 143,451,380 = KRW 189,994,526

(4) Employer negligence 50%:

Civil damages KRW 242,871,588 + Criminal settlement KRW 50,000,000 ?
Industrial accident compensation KRW 143,451,380 = KRW 149,420,208

 

Initially, the company proposed using a 50%
negligence rate to settle the matter. The bereaved family agreed that
litigation would be undesirable and sought an amicable compromise, proposing a
60% negligence rate, even though it reduced their potential compensation. The
company accepted this proposal, and the parties reached a civil and criminal
settlement based on 60% employer negligence, in addition to the
statutory industrial accident compensation. Under this settlement, the family
received the agreed compensation and, in return, submitted petitions for
leniency and statements of non-punishment, waiving all civil and criminal
claims against the company.

 

V. Implications

It is truly tragic when a worker loses their life in
an industrial accident, and such incidents cause significant harm to both the
company and the employees. If employers and workers maintain strong safety
awareness and take thorough preventive measures, most accidents can be avoided
before they occur. This case, marked by the horrific death of a worker, again
underscores the critical importance of workplace safety.

In
handling this foreign worker industrial accident case, two particularly
challenging issues had to be resolved.

First, in proving that the deceased worker’s minor
daughter from his previous marriage was the rightful beneficiary of survivors’
benefits, multiple documents issued in Cambodia had to go through notarization
and authentication procedures?such as family relations certificates, proof of
divorce, and documentation establishing the legal guardianship of the minor
child. In addition, the Embassy of Cambodia in Korea required a verification
process to confirm the authenticity of these documents, which significantly lengthened
the timeline.

Second, because the deceased was a foreign national,
the civil and criminal settlement process required even greater caution. The
representative of the bereaved family relied on precedents involving the
industrial accident deaths of foreign workers to persuade the company of its
responsibility. At the same time, the company?aware of the heightened societal
scrutiny surrounding serious industrial accidents?determined that reaching a
prompt settlement with the bereaved family would be the most prudent course of
action. As a result, the company accepted the family’s proposed settlement
terms, allowing the civil and criminal agreements to be concluded smoothly.