[Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Nung-hwan, and Justice Jeon Soo-ahn] (A) Article 4 subparagraph 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007) provides that "the term "occupational accident means an injury, disease, physical disability, or death of an employee caused by his/her occupational reason," and in detail, there is no express provision as to what case it constitutes occupational accident. Thus, whether it constitutes occupational accident is determined by the interpretation of Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act, and it is not determined by whether there is a separate provision that recognizes occupational accident in the Industrial Accident Compensation Insurance Act.

(B) The act of going out or going out is an essential process to provide labor as a repeated act going to and from a residential area and a workplace in order to provide labor. The time of going out or going out is not always determined by the worker, but bound by the business owner's decision and policy. In other words, the place of work is already determined and the time of going out or going out is also determined by the business owner's unilateral decision. In addition, the normative determination of whether such going out or going out is under the business owner's control and management should be made, and it is not a simple physical and spatial factor whether the act was conducted outside the place of business or not, and as long as the act of going out or going out is an act closely related to the business, it cannot be denied that it is under the business owner's control and management by being committed outside the place of business.

(C) Ultimately, an employee’s act of transfer to and from work is closely related to his/her duties, and the reasonable method and route for transfer to and from work are determined by the workplace and the time of transfer to and from work determined by the business owner. Therefore, if an act of transfer to and from work by reasonable means and route is performed, it shall be deemed that the act is under the control and management of the business owner, and the accident that occurred during such transfer to and from work constitutes occupational accidents.

[Supplementary Opinion to the Majority Opinion] Since the entitlement to industrial accident insurance benefits recognized as an employee, including the entitlement to industrial accident insurance benefits due to the outing and leaving-off accidents, mainly covers the right to actively demand payment as a social fundamental right that can be realized only under the Industrial Accident Compensation Insurance Act, the specific grant of such right should be determined by taking into account the factors such as the possibility of funding depending on the economic and economic level of the State and the people before following the need or policy preference. Taking into account various social policy factors, it goes against the constitutional principles to interpret the legislative intent in the field to be resolved legislatively through coordination through reasonable communication among the relevant parties. As long as the amendment to the Industrial Accident Compensation Insurance Act is pending before the National Assembly, it is reasonable to set the limit thereof from the perspective of social security in order to determine whether it belongs to occupational accidents as long as it is recognized as occupational accidents, and if recognized, to what extent it should be included in occupational accidents.

[Supplementary Opinion by Justice Lee Hong-hoon to the Majority Opinion] Prior to a comprehensive institutional improvement on how to set the requirements for recognizing departure and retirement accidents as an occupational accident, what extent the insurance benefits should be, and how much the insurance premium rate would be increased in order to meet financial conditions, construing that accidents that occur during the ordinary course of departure and retirement are occupational accidents as a matter of principle may cause considerable confusion, such as the occurrence of financial crisis of industrial accident insurance and the likelihood of the employer’s opposition due to the increase of insurance premium rates, and thus, may hinder the promotion of public welfare of all workers. However, even before the establishment of improvement measures, it is desirable to gradually expand the scope of recognition of accidents that occur during departure and retirement through the interpretation of the current law.

[Supplementary Opinion to Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, and Justice Kim Ji-hyung] The Industrial Accident Compensation Insurance Act and the Public Officials Pension Act appear to be “the legislative intent,” but there is no ground to interpret differently the meaning of “occupational accidents” under the Industrial Accident Compensation Insurance Act and “accident due to official duties” under the Public Officials Pension Act, and it is doubtful that it is unconstitutional to completely separate and treat different types of accidents such as general workers and public officials as to whether to grant insurance benefits for the same type of accident that is in the absence of the State’s financial burden, “a significant difference in the scale of the State’s financial burden,” “a difference in the subject of insurance,” and “whether to pay contributions.”

[Supplementary Opinion by Justice Ahn Dai-hee on Majority Opinion] The State’s selective expansion of benefits by taking into account various circumstances, such as financial conditions, cannot be deemed to violate the principle of equality. The simple and restrictive interpretation of laws pertaining to matters belonging to fundamental social rights is not only contrary to the principles of the Constitution, but also contrary to the social welfare of the people provided in the Constitution, and rather, it does not guarantee and promote the social welfare of the people. Rather, there is a problem in creating confusion that the policies that have not been prepared and have not been prepared are against social measures and making it impossible to properly guarantee the fields in which prompt guarantee is needed, and legislatively, it is more dangerous to adopt the sector that should be determined with caution by taking into account all the circumstances as a simple interpretation of the law.

1. The term “occupational accident” under Article 4 subparag. 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007; hereinafter “Industrial Accident Insurance Act”) means an accident caused by an employee’s performance of duties or ordinary activities incidental thereto under the control and management of the employee’s employer based on an employment contract between the employee and the employer. However, even if the employment contract is closely related to the employee’s provision of labor services, it cannot be said that the employee’s choice is under the control and management of the employee’s ordinary business because it has been reserved in terms of the method of departure and retirement and the route. Unless there are special provisions that recognize an accident that occurred during his/her departure and retirement by normal method and route, it cannot be deemed that the employee’s use or management of the means of transportation, etc., 90 or 94.

In light of the reasoning of the judgment of the court of first instance, the non-party 1, the husband of the plaintiff, is a person in charge of the maintenance and repair of the deceased's technical worker employed in the non-party 1 corporation located in Gyeonggi-gun's ability document (number omitted), and around 08:10 on March 9, 2002, the non-party 1, who used the game (vehicle number omitted) X-cell car owned by the deceased and was on duty at the non-party 2 Hacheon-si Intersection where the non-party 2 was on duty, and the non-party 2 was on the shock and driver's seat of the non-party 2. The non-party 20 on the ground that the non-party 1's accident occurred during the non-party 1's duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related duty-related accident.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Except for the dissenting opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Kim Nung-hwan, and Justice Jeon Soo-ahn, the dissenting opinion by Justice Yang Sung-tae, Justice Kim Hwang-sik, Justice Lee Hong-hoon, and Justice Ahn Dai-hee, and concurring opinion by Justice Kim Young-ran, Justice Park Si-hwan, and Justice Kim Ji-hyung, and another supplementary opinion by Justice

2. Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Kim Nung-hwan, and Justice Jeon

Although the majority opinion has followed the attitude of the previous Supreme Court precedents as to whether an accident occurred during the period of departure or retirement is recognized as an occupational accident, we cannot agree with the majority opinion in the following respect.

A. The Majority Opinion recognizes that an employee’s act of departure or retirement is closely related to his/her duties, but it cannot be deemed that an accident occurred during his/her departure or retirement due to the reason that the method of departure or retirement and the selection of the route is reserved to the employee and is not under the control and management of the employer. However, it cannot be said that it disregards the business dependence of the act of departure or retirement.

The act of leaving and leaving work is a repeated act going to and from a residential area and place of work to provide labor, which must necessarily be an essential process to provide labor. In the absence of commuting, there is no provision of labor, and there is no commuting to work. However, the time of leaving or leaving work is not freely determined by a worker, but is bound by the business owner's decision and policy. The work place is already determined, and the time of leaving or leaving work should be unilaterally determined by the business owner.

If the departure and retirement are to return from the residential area and the workplace, and if the departure and retirement time and the workplace have already been set, the method and route of the departure and retirement shall be deemed to have already been set in accordance with social norms, as long as they are based on a reasonable method and route in terms of social norms. The methods of departure and retirement, i.e., the means of commuting may be selected by workers, but the scope of the means of commuting recognized as reasonable by social norms is limited to the time of departure and retirement and the place of work, and the path of departure and retirement is also determined by the means of commuting selected within the same scope. The Majority Opinion places emphasis on the business dependence of such act.

Therefore, if the act is conducted repeatedly by means of a reasonable method and route in terms of social norms, it shall be bound by the time and place of work as determined by the employer, and as long as such, the process of withdrawal and retirement shall be considered to be under the control and management of the employer. Nevertheless, the majority opinion cannot be unreasonable because it evaluates the above type of withdrawal and retirement as belonging to the same category as that of the worker’s private act.

B. Although the majority opinion is not clearly stated, if the act of withdrawal or withdrawal is performed outside the workplace, and it is not deemed under the control and management of the business owner, it cannot be pointed out that it is erroneous that it is under the control and management of the business owner.

Whether a business owner is controlled and managed is a matter of interpretation of Article 4 subparag. 1 of the Industrial Accident Insurance Act, which is a normative interpretation, and it is not a simple physical and spatial element whether the act was performed in the workplace or performed outside the workplace. This is supported by the Supreme Court's previous Supreme Court's recognition of occupational accidents in certain cases related to the business of a disaster that occurred outside the workplace.

The Supreme Court recognizes that a worker is under the control of the business owner with respect to the overall process of a business trip when he/she leaves his/her place of business (see, e.g., Supreme Court Decisions 97Nu8892, Sept. 26, 1997; 2005Du5185, Mar. 24, 2006). The same applies to the case of a business trip where the worker can choose the method or route of the movement to the place of the business trip. Therefore, if a business trip is recognized to be under the control and management of the business owner, if the act of returning to the place of the business trip is recognized to be under the control and management of the business owner, it is correct to determine that the act of returning to the place of the business is also under the control and management of the business owner.

Furthermore, the Supreme Court recognizes the occupational accident as well as the accident that occurred outside the workplace during the recess hours as being under the control and management of the business owner, even though it is not itself a business act, if it is reasonable act incidental to the business act by social norms (see Supreme Court Decisions 2004Du6549, Dec. 24, 2004; 2005Du6423, Oct. 28, 2005, etc.).

In accordance with such precedents, the issue of whether an employer is under the control and management shall be determined by the nature and content of the act, not by the place where the act was conducted, but by whether the act was closely related to the act of business or business. If so, as long as the act of departure and retirement is an act closely related to the work, it cannot be denied that it is under the control and management of the employer by being an act performed outside the workplace. Above all, there is no reason to regard the disaster that occurred outside the workplace during the recess period as well as the accident that occurred during the departure and retirement.

C. The Majority Opinion does not have any special provision that recognizes an accident that occurred in the course of departure or retirement by ordinary route and method as an occupational accident under the Industrial Accident Insurance Act, and therefore, it cannot be deemed that an accident that occurred during departure or retirement by reason of ordinary route and route selection is an occupational accident. However, this is also difficult to accept.

Article 4 Subparag. 1 of the Industrial Accident Insurance Act provides that "the term "occupational accident" means an injury, disease, physical disability, or death of a worker caused by an occupational reason, and does not explicitly stipulate in any case as to which it constitutes an occupational accident. Therefore, whether it constitutes an occupational accident is determined by the interpretation of Article 4 Subparag. 1 of the Industrial Accident Insurance Act, or whether it is determined by the interpretation of Article 4 Subparag. 1 of the Industrial Accident Compensation Insurance Act, or not by whether the Industrial Accident Insurance Act has a separate provision that recognizes an occupational accident.

If an accident occurred in the course of departure or retirement from office is a disaster that occurs in a state under the control and management of a business owner if it occurs in the course of departure or retirement from office by a reasonable method and route, it is deemed that it falls under an occupational accident as referred to in the above provision of the Act as stated above. Therefore, even if the Industrial Accident Insurance Act does not have a separate provision that recognizes an accident that occurs in the course of departure or retirement from office as an occupational accident, it should be recognized as an occupational accident.

Furthermore, according to the Majority Opinion, the reason recognized as an occupational accident is nonexistent with respect to “disaster during a business trip” or “disaster during a business recess,” which does not have any provision that is recognized as an occupational accident under the Industrial Accident Insurance Act.

In addition, even if compared with the provisions of the Public Officials Pension Act, the Public Officials Pension Act does not have a provision that recognizes a disaster that occurs in the course of departure or withdrawal by the ordinary route and method as a disaster on official duty. Therefore, if the grounds for the majority opinion are as follows, a disaster that occurs in the course of departure or withdrawal of a public official can not be deemed an accident on official duty. However, the Supreme Court consistently recognizes it as a disaster on official duty (see, e.g., Supreme Court Decision 92Nu19309, Jun. 29, 1993). The grounds for the majority opinion are clearly inconsistent with the above position of the Supreme Court.

Therefore, the grounds of the Majority Opinion’s argument that the accident that occurred during the period of withdrawal or retirement under the Industrial Accident Insurance Act cannot be viewed as an occupational accident on the grounds that there is no provision that recognizes it as an occupational accident, cannot be seen as appropriate.

D. The Majority Opinion states that the general process of departure and retirement cannot be deemed to be under the control and management of the employer, but the process of departure and retirement of workers is under the control and management of the employer only in cases where workers use the means of transportation provided by the employer or allow the employer to use the means of transportation equivalent thereto. This view is as seen earlier, which is unreasonable because it is excessively limited to the status under the control and management of the employer, by excluding the business dependence of the act of departure and retirement. Furthermore, according to this, the following unreasonable results may result in unreasonable consequences, and may be unconstitutional against the principle of equity or equality.

First of all, it is clear that the business owner recognizes the occupational accident only when he/she provides means of transport or allows a large enterprise to use means of transport equivalent thereto, and if it is not recognized as an occupational accident, it is unfair in itself if it is not recognized as an occupational accident. In addition, from the perspective of the business owner, it brings about unreasonable results that the business owner who provides a commuting vehicle or pays the cost of maintaining vehicles for the welfare of workers is more responsible for occupational accidents than the business owner who does not do so. In addition, from the perspective of workers, the commuting bus for commuting use is more and more provided to large enterprise workers than the small enterprise workers in light of the fact that the traffic bus for commuting use is provided more frequently than the small enterprise workers.

Next, according to the Majority Opinion, the occupational accident of a public official is not consistent in relation to an occupational accident. As seen earlier, the Industrial Accident Insurance Act provides that “the injury, disease, physical disability, or death of an employee due to an occupational reason” (Article 4 subparag. 1 and Article 5 subparag. 1 of the current Industrial Accident Insurance Act). The Public Officials Pension Act provides that “the disease, injury, and accident resulting from an official duty” in relation to an occupational accident (Article 25). There is no ground to interpret the meaning differently in light of the language and text of each of the above legal provisions. Nevertheless, the Supreme Court does not recognize it as an occupational accident where a public official suffers from an accident that occurred during his/her departure or retirement by normal route and method (see, e.g., Supreme Court Decision 92Nu19309, Jun. 29, 1993). Private school teachers and staff members at private schools (see, e.g., Article 42(1) and (3) of the Pension Act or Article 31(1) of the Enforcement Decree of the Military Pension Act.

The compensation insurance system for accidents in the course of performing official duties and ordinary workers' occupational accidents is limited to the agencies entrusted by the State, and there is no difference between the basic principle of accident compensation and the financial burden of an employer, which is the basic principle of accident compensation as an insurance business performed by the State as the insurer, and the factual aspect of the act of withdrawal from office and retirement. Although Article 14 of the Enforcement Rule of the Public Officials Pension Act and Article 35(4) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act provide different provisions concerning accidents during the period of withdrawal from office and retirement, the above provisions of the Enforcement Rule are merely those of the administrative agency's internal administrative rules, and thus they do not have legal effect (see Supreme Court Decisions 2004Du6549, Dec. 24, 2004; 2005Du6423, Oct. 28, 2005). Nevertheless, if so decided by the Majority Opinion, it is unreasonable to interpret that it is a general worker or a military employee in accordance with the principle of equality or equality.

E. As seen above, an employee’s act of transfer to and from work is closely related to his/her duties, and a reasonable method and route for transfer to and from work are determined by the place of work and the time of transfer to and from work determined by the employer. Thus, if an act of transfer to and from work by a reasonable method and route is performed by the employer, it shall be deemed that the act is under the control and management of the employer, and therefore, the accident that occurred in the course of transfer to and from work should be deemed an occupational accident. It is clear that such act conforms to the legislative intent of the Industrial Accident Insurance Act aimed at compensating workers promptly and fairly for occupational accidents and promoting rehabilitation and rehabilitation of workers suffering from occupational accidents, thereby contributing to the protection of workers.

F. Examining these legal principles in light of the records, in the case of this case, the deceased was killed due to traffic accident while working at a passenger car owned by him in order to work at the workplace, and this is a disaster that occurred in the work process due to reasonable methods and route. Therefore, it is reasonable to view it as an occupational accident.

Nevertheless, the lower court determined that the Defendant’s instant disposition was lawful on the ground that the instant accident did not constitute occupational accidents. In so doing, the lower court erred by misapprehending the legal doctrine on occupational accidents under the Industrial Accident Compensation Insurance Act. Therefore, it is reasonable to reverse the lower judgment and remand the case to the lower court for further proceedings consistent with this Opinion, and the Majority Opinion dissents from the Majority Opinion.

3. Opinion concurring with the Majority by Justice Yang Sung-tae, Justice Kim Hwang-sik, and Justice Ahn Dai-hee

Justices Yang Sung-tae, Justice Kim Hwang-sik, and Justice Ahn Dai-hee trying to supplement the Majority Opinion through criticism of the Dissenting Opinion.

A. The State bears the duty to promote various social welfare and social security, including the duty to protect citizens from various disasters or material defects, and the State is obliged to endeavor to substantially guarantee the entitlement to social security with a means to realize the right to a life worthy of human dignity. As such, from a social security perspective, the State’s policy objective should be set in such a direction. The purport of the Dissenting Opinion is to ensure the rights and interests of workers by incorporating accidents that occur during their withdrawal or withdrawal into occupational accidents in line with the objective of the policy. We also know that this is well-known to the direction that is compatible with the realization of a life worthy of human dignity by promoting the guarantee of accidents that may not be guaranteed as private insurance for workers.

However, the right to receive industrial accident insurance benefits, which is embodied by the Industrial Accident Insurance Act, belongs to the fundamental rights of social rights, and in the interpretation of laws relating to such fundamental rights of social rights, the language and text and legislative intent based on the broad discretion of legislation are matters relating to the general principles under the Constitution. In light of such constitutional principles, the Dissenting Opinion appears to interpret the industrial accident insurance benefits exceeding the legislative intent of the Industrial Accident Insurance Act.

Article 34(1) of the Constitution guarantees the right to a life worthy of human dignity for citizens, while Article 34(2) of the Constitution declares the State’s duty to promote social security and social welfare, and Article 34(6) of the same Act declares that the State has a duty to endeavor to prevent disasters and to protect the people from danger. However, in light of the legal nature of the right to a life worthy of human dignity, the scope of the legal capacity is limited to the right to demand benefits necessary for guaranteeing “minimum material survival” and it does not directly generate specific rights that include more than two benefits. Meanwhile, even under Article 34(2) and (6) of the Constitution, these provisions only provide the State with the objective of national activities, such as the promotion of social security and social welfare, or impose objective obligations for such activities only on the State, and do not seem to have any legislative delegation on the State with regard to the right to demand reimbursement or delegation of such rights. Ultimately, it is difficult for the State to reasonably determine the level of social security and financial capabilities that are beyond the minimum level of legislative and financial capabilities of the people.

Since the right to receive industrial accident insurance benefits, including the right to receive industrial accident insurance benefits, are the basic social rights that are embodied only in accordance with the Industrial Accident Insurance Act, and the right to receive industrial accident insurance benefits is the main contents of the right to actively demand payment, the specific grant of such right and its contents should be determined by taking into account the factors such as the possibility of securing financial resources according to the economic level of the State and the people, etc. before taking into account the necessity and policy preference.

The "Committee on Economic and Social Development," taking into account such various circumstances, discussed in depth on various issues, including the scope of recognition of entitlement to industrial accident insurance due to departure or retirement accidents, increase of insurance premium rates, etc., the amendment of the Industrial Accident Insurance Act that reflects the results, etc. is pending before the National Assembly, is being promoted in the direction of expanding the scope of recognition of entitlement to industrial accident insurance due to the progressive departure or retirement accidents, and this seems to be aimed at promoting enormous financial burden and opinions of the parties concerned.

From this point of view, it is necessary to include out-of-off and retirement accidents in occupational accidents, and therefore, it cannot be interpreted that the out-of-off and retirement accidents immediately fall under occupational accidents. If the entitlement to industrial accident insurance benefits arising from out-of-off and retirement accidents, which are one of the fundamental social rights specified only by the Industrial Accident Insurance Act, is interpreted beyond the purport stipulated by the Industrial Accident Insurance Act, it would be in violation of the principle of separation of powers on behalf of the judiciary in terms of matters belonging to social fundamental rights. In other words, it would be in violation of the principle of legislation and administration on behalf of the judiciary. In other words, it would be necessary for the judiciary to actively induce and change such matters without considering the enormous financial and adjustment of interests that such out-of-off and retirement disasters bear by including in the scope of compensation, thereby infringing the legislative discretion, and it would result in the significant aggravation of the financial affairs of industrial accident insurance, the increase of the burden of employers who are compulsory insurance policyholders, the efficient allocation of the budget, and confusion in the interpretation of standards.

In light of each country's legislation cases, since each country's industrial accident insurance laws recognize the departure and retirement accidents as occupational accidents, it is recognized that the departure and retirement accidents are occupational accidents beyond the literal scope of the law, and it is not recognized as occupational accidents. In some countries where the law recognizes the departure and retirement accidents as occupational accidents, it is careful to introduce them such as imposing part of insurance premiums on workers through the economic analysis.

If so, whether or not to recognize the accident of departure or retirement from office as an occupational accident, and if recognizing it, the extent to which degree of the accident of departure or retirement belongs to the occupational accident is set by legislation. Furthermore, in the event that discussions on the amendment of the Industrial Accident Insurance Act have been in progress, it would cause confusion in the interpretation of whether it is included in the formation of a new law in excess of the statutory interpretation and in any case of departure or retirement from office. Many precedents of the Supreme Court on the accident of departure or retirement from office in Korea have been in full knowledge of these problems, and have been reasonably interpreted in accordance with the constitutional principles while waiting for legislative resolution to adjust the understanding of the parties concerned. Accordingly, the majority opinion as to the accident of departure or retirement from office based on the constitutional principles should be reasonable.

B. The Dissenting Opinion argues that the Majority Opinion is inconsistent with the consistent position of the Supreme Court precedents that recognize disasters during business trip or recess hours as occupational accidents, as well as disregarding the business dependence of the act of going out and going out.

However, Article 36 of the Enforcement Rule of the Industrial Accident Insurance Act explicitly provides that an act of a business trip constitutes an act of business by itself, and thus, an employer is comprehensively responsible for whether a business trip is performed or not even if a worker leaves a place of business and is on a business trip. Thus, barring any special circumstance, it can be said that the whole process of a business trip is under the control of an employer, barring any special circumstance, and thus, its performance of duties can be recognized.

In addition, the Supreme Court’s recognition of occupational accidents among the accidents that occur during the recess hours is that Article 35-2 of the Enforcement Rule of the Industrial Accident Insurance Act provides that if an accident occurred due to an act that is deemed to be able to be a part of the recess hours provided by an employer to an employee under the social norms within the workplace, it shall be deemed an occupational accident. Unlike the above provisions, the Supreme Court’s previous Supreme Court’s decision, which focuses on whether the act is under the control and management of an employer regardless of whether the act is inside or outside the workplace, constitutes an exception to a kind of occupational accident, taking into account all the circumstances. Accordingly, the Dissenting Opinion’s interpretation as a principle as to the exception, does not point out that the Dissenting Opinion simply compares the principle of recognition of occupational accidents with the principle of recognition of occupational accidents, thereby

In addition, the position of the precedents on the enforcement rules is that even if certain enforcement rules correspond to the administrative agency's internal administrative rules, as long as such rules are objectively deemed reasonable and unreasonable, the administrative agency's intent shall be respected as much as possible, and that the provisions of the enforcement rules are invalid only in cases where the contents of the provisions of the upper law exceed the upper law delegation or constitute a blanket delegate, or where they appear contrary to the purpose or intent of the upper law, and it does not constitute arbitrary legal interpretation even when the Supreme Court disregards the king's enforcement rules. The provisions of the above enforcement rules on disasters during a business trip are in accordance with the delegation of the Industrial Accident Insurance Act, and do not deviate from the purport of delegation. Thus, the above provisions of the enforcement rules on disasters during the business trip are valid regardless of whether the enforcement rules including

Ultimately, the dissenting opinion argues that the majority opinion is inconsistent with the consistent position of the Supreme Court precedents that recognize a disaster during a business trip or recess hours as an occupational accident, as a result of erroneous understanding of the grounds and reasons that a disaster during a business trip or recess hours is recognized as an occupational accident.

In addition, the Dissenting Opinion points out that it is unreasonable in terms of equity in terms of the fact that a public official, private school personnel, etc. does not recognize the departure and retirement accident as an occupational accident, compared to the fact that the departure and retirement accident is deemed as an occupational accident by normal route and method in accordance with the laws, regulations, and judicial precedents. Of course, it is sufficiently possible to propose these problems, but it is not the same as if similar or the same term is used in various laws, it is not the same as mechanically, but rather the most appropriate meaning within the framework of individual laws and regulations. Rather, it is not the principle of statutory interpretation, and it is reasonable to solve this problem legislatively, and it does not necessarily go against equity in terms of the fact that legislative discretion should be recognized for matters belonging to fundamental social rights.

With respect to public officials, etc., the government explicitly included the withdrawing and leaving-off disasters in Article 14 of the Enforcement Rule of the Public Officials Pension Act as a disaster on official duty. This seems to have been a legislative policy in consideration of the substantial difference in the scale of financial burden, the difference in the subject of insurance and the payment of contributions, etc., and such legislative policy consideration is also the principle of the Constitution to recognize it in the case of interpretation of the basic rights of social rights

If the difference in such legislative policies is eliminated by legal interpretation, other social security policies that should be priorityed by the State are superior to the other social security policies that take into account the financial burden of the State are likely to be lowered. Therefore, the cadastral map on equity is not attributable to the transfer of principles and exceptions without understanding of the fundamental rights of social security.

Therefore, even if there is a close and poor relationship with the business of providing labor, so long as the choice of the way and route is reserved to the employee and it cannot be deemed that the employer is under the control and management of the employee, the current precedent that interpret the disaster that occurred during the period of departure or retirement as the majority opinion is reasonable, since the method and the selection of the route of the employee's choice cannot be viewed as an occupational accident on the ground that the choice of the route is ordinary.

C. Taking into account various social policy factors, interpreting exceeding the legislative intent in the field of legislative resolution through reasonable communication among the parties concerned is contrary to the constitutional principles. As seen earlier, as long as the amendment of the Industrial Accident Insurance Act is pending in the National Assembly through discussions such as the “Committee on Economic, Social and Social Development,” etc., as seen earlier, it is reasonable to determine whether the scope of the existing accident should be included in occupational accidents from the point of social security to the point of view of social security. Our opinion is consistent with the principles of law, is consistent with the nature of the law, is sufficient to be faithful to the nature of the law, as well as the form of a mature judicial system.

4. Concurrence with the Majority by Justice Lee Hong-hoon

Justices Lee Hong-hoon will supplement the Majority Opinion as follows.

The majority opinion held that a disaster that occurred during the period of departure or retirement from office cannot be caused by an occupational accident solely on the ground that the worker's choice of the method of departure or retirement from office and the route is ordinary, but held that a disaster that occurs during the period of departure or retirement from office may be recognized as an occupational accident in the event that the worker's process of departure or retirement from office can be seen as being under the control and management of the employer, such as using the means of transportation provided by the employer or allowing the employer to use the means of transportation equivalent thereto. This leaves room for expanding the scope of recognition of an occupational accident by interpretation of the current law.

Before a comprehensive system improvement is made on how to establish the requirements for recognizing the departure and retirement accidents as an occupational accident, what extent the insurance benefits should be, and how much the insurance premium rate will be raised in order to be equipped with financial conditions, the interpretation that an occupational accident in principle occurs during the ordinary departure and retirement may hinder the promotion of public welfare of all workers, as it might cause considerable confusion, such as the financial crisis of the industrial accident insurance and the likelihood of the business owners due to the increase of the insurance premium rate, etc. However, even before the establishment of the improvement measures as above, it is desirable to gradually expand the scope of recognition as an occupational accident. For example, if there are special circumstances, such as how to perform duties while leaving or leaving the workplace or when it is judged that there is a close and poor relationship with the business to the extent that it is recognized as an occupational accident through individual interpretation, it can be said that there is much much extent to expand the scope of recognition as an occupational accident during the departure and retirement through individual interpretation.

As above, I express my concurrence with the Majority Opinion in order to say that while taking the same conclusion as the Majority Opinion, it is difficult to extend the scope of recognition of occupational accidents during departure or withdrawal through the interpretation of the current law.

5. Concurrence with the Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, and Justice Kim Ji-hyung

Justices Kim Young-ran, Justice Park Si-hwan, and Justice Kim Ji-hyung will supplement the Dissenting Opinion with respect to the concurring opinion of the Majority Opinion on three major issues as follows.

A. From the general perspective of interpretation theory

From the standpoint of the Dissenting Opinion, it is most difficult to obtain the majority opinion from the viewpoint of the Dissenting Opinion that, in interpreting the concept of “occupational accidents” as stipulated in the Industrial Accident Insurance Act and the concept of “accident due to official duties” as defined in the Public Officials Pension Act, it takes a completely conflicting position as to whether an accident due to official duties (the term “ex-out and withdrawal” refers to a type of repeated ex-out and withdrawal by a reasonable method and route under social norms; hereinafter the same shall apply) is included in the ex-out and withdrawal.

According to the concurring opinion of the majority opinion, the "occupational accidents" stipulated in the Industrial Accident Insurance Act may not include occupational accidents in light of their words and legislative intent, and therefore, it is understood that the inclusion of accidents that are incurred by ordinary workers out of and out of the workplace in the subject of insurance benefits under the Industrial Accident Insurance Act should be resolved not by legal interpretation but by legislative policy, even if it is necessary to guarantee workers' rights and interests. Therefore, the dissenting opinion does not intend to include occupational accidents in the "occupational accidents" during which the Industrial Accident Insurance Act does not originally stipulate, unless it is prudent to include such accidents in the "occupational accidents" in the name of interpretation theory.

If we look at only the provision of "occupational accident" in the Industrial Accident Insurance Act, we cannot deny that the above interpretation theory of the majority opinion can be a single opinion that can sufficiently be established as a result of leaving the legitimacy thereof.

However, in comparison with the interpretation theory of "disaster due to public duties" stipulated in the Public Officials Pension Act, the problem is completely different. This is because the Supreme Court has completely different interpretation since it has maintained the previous position that the concept of "disaster due to public duties" includes a disaster due to public duties.

The supplementary opinion of the Majority Opinion is based on the interpretation theory of the Majority Opinion, and it is so called “the legislative intent” and “the legislative intent.”

First, the Industrial Accident Insurance Act defines “occupational accident” as “accident, disease, physical disability, or death of an employee due to an occupational reason,” and the Public Officials Pension Act provides that “the disease, injury, and accident or death caused by official duty of a public official.” In preparation for only the above two statutory provisions, there is no difference in minor expressions, but there is no difference in the meaning of the language and text. In addition, if there is a separate legal provision regarding accidents during departure or retirement, the premise may vary. However, other legal provisions regarding whether accidents during departure or retirement are included in “occupational accident” or “accident due to official duty” are not provided. Nevertheless, it is difficult to understand by way of any kind of tobacco so far as there is no other legal provision regarding the interpretation on the grounds that the meaning of the language and text is different.

Next, “the legislative purport” ought to be seen as “the fundamental rights that can only be embodied by the Industrial Accident Insurance Act, as the Majority Opinion properly pointed out, it is sufficiently recognized that the right to receive industrial accident insurance for workers is the fundamental rights that can only be created by the Industrial Accident Insurance Act, and thus, a broad legislative discretion has been granted to the legislators. Therefore, the legislators fully agree with the fact that the legislators may decide whether to grant specific entitlement and its contents, etc. taking into account the social and economic conditions, such as the economic level of the State and the citizens and the possibility of securing financial resources therefor. The Dissenting Opinion does not necessarily argue that the “occupational accident” includes a constitutionally required constitutional request that provides for the fundamental social rights. Moreover, it should be deemed that the concept of “occupational accident” as defined in the Industrial Accident Insurance Act, which is one of the laws embodying the fundamental social rights.

However, at the time of the enactment of the Industrial Accident Insurance Act in Korea, there is no reason to see that the legislative intent of the legislators was different from that of public officials, soldiers, and private school teachers and staff members, etc. Rather, even if compared to the relevant legal provisions, it would be far more natural to view that the same matter is the same, but rather, the subject is a general worker, a public official, or a soldier, or a teacher and staff member of a private school, and there is a difference in whether the subject is a private school.

After the Industrial Accident Insurance Act was enacted on November 5, 1963, the Public Officials Pension Act was enacted on January 1, 1960 in the Ministry of Labor in charge of industrial accident insurance affairs, the Ministry of Labor established its own rules on the criteria for recognition of occupational accidents, and around 1982 the general secretary in charge of the public official pension management affairs also enacted the general secretary's directives that set forth the criteria for recognition of occupational accidents. The above rules of the Ministry of Labor did not clearly state occupational accidents, while the above rules of the Ministry of Labor did not clearly state occupational accidents, the general secretary's directives explicitly include occupational accidents in the period of withdrawal or withdrawal, and thus, they have entirely conflicting interpretation on the supply and demand affairs. However, regardless of the legislative intent, the legislative intent and the legislative rules of the Ministry of Labor, regardless of the legislative intent of the Ministry, the legislative branch, as well as the legislative rules and regulations of the Ministry of Labor, have no effect on the legislative branch, and there is no reason to deem them to reflect the legislative intent of the Ministry of Labor. Rather, there is no other legislative interpretation of the Act or administrative regulations.

According to the concurring opinion of the majority opinion, it seems that the reason why the majority opinion does not recognize the occupational accident of ordinary workers as an occupational accident, and that there may be problems such as aggravation of the insurance finance or increase in the burden of business owners. I think that there is no such problem at all or light. However, if the majority opinion asserts that the concept of “occupational accident” under the Industrial Accident Insurance Act should be considered as the legislative purport in interpreting the concept of “occupational accident” under the Industrial Accident Compensation Insurance Act, it is unreasonable. Even if examining the relevant laws and regulations of the Industrial Accident Insurance Act and the Public Officials Pension Act, it is difficult to find that the provision stipulating whether to grant the right to receive benefits or the purport that the same can be different in light of such reasons is unreasonable. If the legislative branch does not have any difference in the scope of workers’ entitlement to industrial accident or public officials’ entitlement to receive benefits, and thus it is recognized that there is an occupational accident or occupational accident, the State should not provide for the legislative purport of the Industrial Accident Compensation Insurance Act within the scope of the general insurance benefits prescribed by the majority opinion with regard to the industrial accident insurance benefits.

As above, the Majority Opinion’s position that intends to make a different interpretation on the basis of “the legislative intent” that is unclear may not be agreed at all. If it is assumed that the concept of “occupational accidents” as stipulated in the Industrial Accident Insurance Act is correct, it is reasonable to interpret the concept of “accident due to official duties” as stipulated in the same meaning in the language of the same meaning, but it is a position that the same does not include an accident due to official duties in the same way as that of “accident due to official duties” under the Public Officials Pension Act. In addition, the Dissenting Opinion argues that it is just to change the position of the previous precedents on occupational accidents so that it does not include a disaster due to official duties in the concept of a disaster. Rather, the Dissenting Opinion’s position should be understood as including a disaster due to official duties or public duties, so such interpretation should be made in the direction of the concept of “occupational accidents” or “public duties,” so that the court should not make the same statutory interpretation as above.

As such, the Dissenting Opinion is consistent that if there is no ground to interpret the meaning of both “occupational Accident” and “accident due to official duties” as “a text,” but it is entirely different from the previous Supreme Court’s interpretation without any other basis, thereby causing huge confusion to the people who are the persons who are the persons who are the persons who are the persons who are the persons who are the persons who are the persons who are the persons who are the persons who are the persons of the above legal provisions

B. In terms of theory of unconstitutionality

It is questionable whether the concept of “occupational accidents” and “accident due to official duties” can be interpreted differently as follows: (a) it is difficult to accept as a reasonable interpretation of the legal provisions as a general public; and (b) even if the legal provisions explicitly stipulate the scope of workers’ occupational accidents, it may be unconstitutionally justified by including it in the case of public officials, etc. while excluding out-of-the-job accidents in setting the scope of workers’ occupational accidents.

As seen in the Dissenting Opinion, it is doubtful that it is unconstitutional as it goes against the principle of equity and equality under the Constitution to treat the same type of disaster, which is one of the same types of accidents, at all different times, by distinguishing them from ordinary workers and public officials, etc.: Provided, That it is desired to emphasize once again several of the following points, as the right to receive insurance benefits for the same type of accident, which is pointed out in the concurring opinion by the Majority Opinion.

Article 11(1) of the Constitution provides, “All citizens shall be equal before the law, and no person shall be discriminated against in any political, economic, social, or cultural life on the basis of gender, religion, or social status.” The principle of equality under Article 11(1) of the Constitution prohibits legislative persons from arbitrarily treating the same in essence differently from what is essentially the same to legislative persons, and arbitrarily treating others. However, such principle of equality does not mean any discriminatory treatment or absolute equality that denies the same treatment, and it does not mean not only the application of the law, but also the same shall not be treated as unreasonable discrimination or identical in legislation (see Constitutional Court Order 89Hun-Ga37, 96, May 24, 1989; Constitutional Court Order 2005Hun-Ga17, 2006Hun-Ba17, May 25, 2006, etc.).

According to the concurring opinion of the majority opinion, unlike the case of “occupational accident” of ordinary workers, there is a serious difference in the scale of the financial burden of the State, the difference in the subject of insurance, and whether contributions are paid or not, it is constitutionally acceptable in equity, in consideration of the fact that there is a serious difference in the scale of the financial burden of the State, the difference in the subject of insurance, and the fact that contributions are paid.

First of all, the “payment of contributions” in itself is erroneous. The Supreme Court held that “In the case of the Public Officials Pension Act, compared to the payment of a considerable amount of contributions to a public official, in the case of an industrial accident, it does not share the same nature as that of an employee, and thus, it does not violate the principle of equality under the Constitution, on the ground that the same does not apply to the case of an industrial accident.” The Supreme Court expressed an attitude that different treatment of accidents during the period of occupational accidents and occupational accidents does not violate the principle of equality (see, e.g., Supreme Court Decisions 94Nu1523, Mar. 14, 1995; 2003Du13588, Feb. 26, 2004). However, it is clear that public officials’ contributions are appropriated for retirement benefits, and that the State or a local government bears all expenses that are paid for an occupational accident, and therefore, it is not reasonable that the employer bears the insurance contributions in this respect.

In addition, in relation to the difference of "insurance subject", the industrial accident insurance for public officials and workers is expected to take over the risk of suffering from accidents, such as accidents or diseases, which all the State may sustain while working as an insurer, and the insurance subject is different in that only the operation of the insurance business is divided into different administrative agencies (the Ministry of Government Administration and Home Affairs and the Ministry of Labor).

Examining the structure of insurance management, including the subject of insurance, the State, the insured, the business owner, and the beneficiary are all workers including public officials. In other words, the State, the insurer, operates the insurance business or the pension business, and the insured is also the State, even in the case of public officials, etc. as the business owner. Although the State overlaps with the operator of the insurance business, the State is not different from the business owner of the general worker. Furthermore, the beneficiary of the insurance is a person who receives the benefit of the insurance benefits due to the insured event such as ordinary workers or public officials.

Therefore, in the case of public assistance by the State, it is not doubtful that the benefit of insurance is different on the ground of the difference between the public official, etc. and the ordinary worker with respect to the same type of insurance accident, which is the same type of disaster during the departure and retirement, due to the difference in the amount of financial burden, not falling under unreasonable discrimination treatment beyond the scope of the legislative formation right, because it results in the "inherently different treatment", and rather, the country, which is the insurer, has the obligation to resolve the imbalance in financial position as mentioned above.

For example, if the State considers the type of the insurance accident as the subject of insurance benefits and excludes the risk of relatively low closeness based on differences in the degree of closeness of the business in consideration of the financial status of the insurance operation, it can be assumed that the case is within the scope of the legislative formation right as a case of reasonable discrimination based on the financial status. However, it cannot be said that the degree of closeness is determined differently as to the type of the insurance accident whose degree of insurance benefits is completely identical.

If the opinion of the Supreme Court is maintained as stated in the Majority Opinion, it would be problematic from the perspective of the principle of equality under the Constitution, rather than discrimination between “ordinary workers” and “public officials or military personnel.” Of workers, there is discrimination between “ordinary workers who are not private school teachers and employees who are private school teachers and employees.” If it is possible to discriminate based on the logic, such as the concurring opinion of the Majority Opinion, it is questionable whether there is no problem in equity even if there is a difference between the employer’s financial burden between the employees employed by the private enterprise in which the workplace is located in Seoul and the employees employed by the other enterprise in which the workplace is located in Seoul, and whether there is a difference between the employees employed by the private school and the employees employed by the workplace in which the employees are located in the workplace (e.g., the difference between the agencies in charge of the industrial accident insurance business and the employees in the workplace).

As can be seen, even in cases where the provisions of the law expressly stipulate different cases concerning ordinary workers and public officials with respect to accidents during departure or withdrawal, if there is a unconstitutionality, and if the provisions of the law are not clear and thus it is possible to interpret differently in their language and text, there is no reason to interpret them as unconstitutional. In such a case, it is consistent with the principle of constitutional interpretation, and is believed to be the degree of statutory interpretation. Therefore, it is difficult to accept as a justifiable criticism that points out the Dissenting Opinion as an interpretation exceeding the scope of the text of the law.

C. From the legislative perspective

The supplementary opinion of the majority opinion is that it is reasonable to leave the discussion of the National Assembly as a matter of legislation whether a disaster should be the object of industrial accident insurance during departure or retirement.

There is no objection from the Dissenting Opinion that it is desirable to legislatively resolve whether to recognize an occupational accident during the period of departure or retirement. In this sense, if legislative discussions are followed by the National Assembly on this matter, it would be possible to protect a general worker from an occupational accident at an international level during his/her departure or retirement. In addition, it is intended to add several M&D to such a purport.

Considering the legislation cases of foreign countries on accidents during departure and retirement, Austria has been typically included in the case of Europe from 1917 to 1925 in Germany, from 1925 in France, and from 1946 to 1946, it has already been recognized as one type of industrial accident and has been subject to insurance benefits. Moreover, the near Japan is also subject to the protection of the Trade Union and Labor Insurance since 1973. In addition, the International Labor Organization (ILO) also includes disasters during departure and retirement in the Convention No. 121 in 1964.

As such, it can be seen that an accident during the departure and retirement of workers is a major trend that has been in progress in the world since the most recent century. Although at the time of the commencement of industrial accident insurance, it was aimed at guaranteeing the employer’s compensation for damages, the social function of the Industrial Accident Insurance Act has been remarkably important as the time has increased, and the social function of the Industrial Accident Compensation Insurance Act has been recognized as being considerably important. Nevertheless, considering the economic level of Korea, maintaining the attitude that Korea still does not recognize an accident during the departure and retirement from office as an occupational accident, it is too late. As seen earlier, it seems that the legal provision’s term “a legislative intent” or “a legislative intent” or even if there is no reasonable reason to treat a disaster during the retirement and retirement of ordinary workers and public officials, it appears that there was a different legal interpretation that the Supreme Court ought to be interpreted differently.

If so, even if the Supreme Court has corrected the existing legal interpretation, it is reasonable to eliminate the unconstitutionality of the Supreme Court and to ensure the uniform interpretation and application of the legal norms. However, at the present point where it does not reach it, we will soon prepare a legislation that includes disasters in the industrial accident insurance coverage clearly during the late withdrawal and withdrawal from the workplace, so that we can go toward the direction of faithful protection of workers' rights and interests.

If an occupational accident is more easily expressed, it does not even exceed the “accident which any person has to undergo due to his or her position as a worker,” and it does not even exceed that.In addition, the Ministry of Labor also has set up and continued the policy goals for the legislation that includes any accident out of and out of the workplace in the occupational accident, and hear that the Ministry of Labor has consistently made efforts to complete the supplementary opinion with a expectation.

6. Supplementary opinions by Justice Ahn Dai-hee on the Majority Opinion

Justices Ahn Dai-hee, along with the Dissenting Opinion, intends to supplement the Majority Opinion in response to the Dissenting Opinion.

The Dissenting Opinion points out that it may violate the principle of equality under the Constitution to treat public officials from the “accidents caused by public duties” by including departure and retirement accidents in the “accident caused by public duties,” and that it is likely that the government’s selective expansion of benefits would violate the principle of equality under the Constitution. However, the State’s selective expansion of benefits by taking account of various circumstances, such as financial conditions, does not constitute a violation of the principle of equality. As indicated in the Dissenting Opinion, the Supreme Court explicitly declared that the issue does not violate the principle of equality (see Supreme Court Decision 94Nu1523, Mar. 14, 1995).

It is too natural that the State’s selective extension of the scope of benefits in relation to the matters pertaining to fundamental rights in social rights does not go against the principle of equality under the Constitution. That is, the principle of equality under Article 11(1) of the Constitution does not interfere with the State’s selection of the beginning of the situation or institutional improvement of the fundamental rights at any time and at any time, and rather, if it is not allowed, the improvement of any system, except for the exceptional cases promoting the improvement of the system at the same time for all matters and for all classes, may not be implemented because of the principle of equality, and it goes against the value to realize the principle of equality (see Constitutional Court Order 90HunGa27, Feb. 11, 1991; Constitutional Court Order 98HunGa1, Dec. 24, 1998).

The majority opinion states that it is necessary to legislatively resolve whether a general worker's departure or retirement accident should be included in the occupational accident. In addition, the financial burden of industrial accident insurance is required more than 30 billion won per year, and the required budget is anticipated to be required more than 90 billion won after 20 years since the annual increase of the budget. This is currently able to fit the highest situation in the insurance finance (in the present situation, the current liquidity crisis) with more than 2 trillion won, and the premium rate to be borne by the company is inevitable within 30% of the premium rate to be borne by the company. On the other hand, the resolution must be made by considering the economic conditions of the parties and adjusting the opinions of the parties, but the policy authorities studying the legislation should also consider the institutional burden such as the improvement of the financial conditions, the method of imposing insurance premiums, and the social problem of Australia, such as the employer, etc., and it should also be recognized that there is a social problem in the United Kingdom, such as the case of a serious occupational accident.

One of the ideology of the modern social welfare state is that the State can fulfill its functions for the welfare of the people, but there is a limit to take into account economic conditions and reality. To ensure social security as well as the basic guarantee such as medical insurance and unemployment insurance, many welfare budgets are required for the disabled, the elderly, the aged, and the rare people. Therefore, among them, making legislative and policy decisions that set priorities and the scope of guarantee in consideration of financial conditions are indispensable for the people’s genuine welfare. In such legislative choice, it is necessary to make a decision by taking into account the need to take into account the preferential need to ensure the people’s welfare. As seen in the supplementary opinion to the majority opinion, a wide range of legislative discretion is recognized with respect to social fundamental rights.

In other words, a simple and limited interpretation of the law on matters belonging to the fundamental rights of social rights is contrary to the principles of the Constitution, not only to guarantee and promote the social welfare of the people prescribed in the Constitution, but also to cause confusion that the policies that have not been prepared are faced without social measures, and that there is a problem that makes it impossible to properly guarantee the fields in need of prompt guarantee. Furthermore, legislatively, it is more dangerous to adopt the fields that should be determined carefully by considering all the circumstances as a simple interpretation of the law.

Chief Justice Lee Yong-chul (Presiding Justice)