[요양불승인처분취소][공1996.10.1.(19),2886]
[1] The elements for the injury sustained while using facilities within the place of business during recess hours are recognized as an occupational accident
[2] The case holding that it does not constitute an occupational accident in a case where a person was injured while carrying out a sports-friendly game for the representatives of trade union at the axis located in the workplace during the point of occupation
[1] Even if an employee’s act during a recess is related to the provision of labor after the end of the recess hours, it is basically guaranteed that the employee freely uses the recess hours, and thus, it cannot be deemed that the employee is under the control and management of the employer. Thus, if the employee was injured while performing any act by using the facilities within the workplace during the recess hours, the injury is recognized as an occupational accident. The act must be deemed as an occupational accident, such as an act of the employee in question, an act of the worker in question, an act of preparation for or reorganization of his/her business, an physiological act recognized as an incidental to social norms, a reasonable and necessary act, or an act of participating in an event held under the employer’s direction or direction, rules of employment, collective agreement, or other customary practices, or an act of the employee in question is deemed as under the control and management of the employer.
[2] The case holding that it does not constitute an occupational accident in a case where a person was injured while carrying out a sports-friendly game for the representatives of trade union at the stables located in the workplace during the point of occupation.
[1] Article 3 (1) (see current Article 4 subparagraph 1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4826 of Dec. 22, 1994) / [2] Article 3 (1) (see current Article 4 subparagraph 1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 4826 of Dec. 22, 1994)
[1] Supreme Court Decision 99Nu10947 delivered on July 25, 1989 (Gong1989, 1308), Supreme Court Decision 92Nu1107 delivered on October 9, 1992 (Gong1992, 3152), Supreme Court Decision 94Nu2633 delivered on August 26, 1994 (Gong1994Ha, 2545), Supreme Court Decision 94Da60509 delivered on May 26, 1995 (Gong195Ha, 2258)
Plaintiff (Attorney Seo Jae-in et al., Counsel for the plaintiff-appellant)
Korea Labor Welfare Corporation
Busan High Court Decision 94Gu5601 delivered on September 6, 1995
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff, who is an employee in the function division of the tea assembly department of the ○○ Heavy Industries Co., Ltd. (which is changed to △△ Heavy Industries in the front and rear), was injured by the 4-5th century on the wind that was found to be fright in the course of coming back with the representative of the trade union in the axis-gu located in the workplace during the middle of October 28, 1993 (12:30-13:30), and during the middle of the construction of the axis-gu games, he did not constitute an occupational injury management of the non-party Co., Ltd., for the reason that the above axis-gu games were allowed free to act during a recess period. The court below held that the non-party Co., Ltd.'s act was not an official exercise organized by the non-party Co., Ltd. or the representatives of the trade union, and that the non-party Co., Ltd.'s act was not an occupational injury management of the above premises.
2. Even if an employee’s act during a recess is related to the provision of labor after the end of the recess hours, it cannot be deemed that the employee is under the control and management of the ordinary business owner because it is basically guaranteed to use the recess hours as free. Thus, in order to recognize an injury as an occupational accident in a case where the employee was injured while performing any act by using the facilities within the business establishment during the recess hours, the injury shall be deemed to be an occupational accident. The process of the act is deemed to be under the control and management of the business owner, such as the employee’s act of performing his/her own duties or preparing or arranging his/her business, a physiological act deemed to be incidental to social norms, or a reasonable and necessary act, or an act participating in an event held by the employer or by the rules of employment, collective agreement, or other customary practices, such an act shall be deemed to be an act under the control and management of the business owner, or an injury caused by the defect in the facilities being used. The decision of the court below rejecting the Plaintiff’s claim
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Park Jong-chul (Presiding Justice)