Case on Accidents that Occur While Commuting to or from Work

[2014Hun-Ba254, September 29, 2016]

In this case, the Constitutional Court held that Article 37 Section 1 Item 1 Sub-Item (c) of the Industrial Accident Compensation Insurance Act, which only acknowledges injuries, etc. from accidents that occur while commuting to or from work under the control and management of his or her employer as occupational accidents, violates the Constitution.

Background of the Case

(1) The petitioner, who had been working as an electrician at an apartment superintendent’s office, was bicycling home from work on November 11, 2011, when he fell off and got his hand caught under the rear wheel of a bus, and broke his index finger and middle finger. The petitioner applied to the Korea Workers’ Compensation and Welfare Service for the medical care benefits prescribed by the Industrial Accident Compensation Insurance Act, but the Korea Workers’ Compensation and Welfare Service declined to provide medical care benefits on December 14, 2011, citing that the injury sustained by the petitioner did not constitute an occupational accident.

(2) The petitioner filed a lawsuit against the Korea Workers’ Compensation and Welfare Service requesting that this disposition be revoked. While this lawsuit was pending, the petitioner filed a motion requesting a review of the constitutionality of Article 37 Section 1 Item 1 Sub-Item (c) of the Industrial Accident Compensation Insurance Act, which served as the grounds for the above disposition. Upon the dismissal of this motion, the petitioner filed a constitutional complaint claiming that Article 37 Section 1 Item 1 Sub-Item (c) of the Industrial Accident Compensation Insurance Act and Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act violate

the Constitution.

Subject Matter of Review

The subject matter of this case is whether Article 37 Section 1 Item 1 Sub-Item (c) of the Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8694 on December 14, 2007) and Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended by Presidential Decree No. 20875 on June 25, 2008) violate the Constitution. The Provisions at Issue read as follows:

Provisions at Issue

Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8694 on December 14, 2007)

Article 37 (Standards for Recognition of Occupational Accidents)

(1) If a worker suffers any injury, disease or disability or dies due to any of the following causes, it shall be deemed an occupational accident.Provided, that this shall not apply where there is no proximate causal relationship between his or her duties and the accident.

1. Accident on duty

(c) Any accident that occurs while he or she commutes to or from work using a transportation means provided by the employer concerned or other similar means under the control and management of his or her employer.

Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended by Presidential Decree No. 20875 on June 25, 2008)

Article 29 (Accidents During Commute to or from Work)

If an accident that happens while a worker is commuting to or from work meets each of the following conditions, it shall be deemed an

accident on duty under Article 37 Section 1 Item 1 Sub-Item (c) of the Act.

1. The accident should happen while the worker is using the means of transportation which is provided by the employer for the worker’s commute to and from work or can be regarded as being provided by the employer;

2. The worker should not have the entire and exclusive responsibility to manage or use the means of transportation used for his or her commute to and from work.

Summary of the Decision

1. Whether the Request for Adjudication on the Constitutionality Regarding Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act is Justiciable

A presidential decree, not serving as grounds for a trial, cannot become the subject of a constitutional complaint under Article 68 Section 2 of the Constitutional Court Act. The provision concerning Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act in the request for adjudication in this case concerns a presidential decree which, under Article 68 Section 2 of the Constitutional Court Act, cannot become the subject of a constitutional complaint, and is therefore nonjusticiable.

2. Whether Article 37 Section 1 Item 1 Sub-Item (c) of the Industrial Accident Compensation Insurance Act (hereinafter referred to as the “Instant Provision”) Violates the Principle of Equality

A worker who is a policyholder of industrial accident compensation insurance (hereinafter referred to as “industrial accident insurance”) and commutes to and from work on foot or using his or her own means of transportation or public transportation (hereinafter referred to as a

“worker without transportation benefits”) is as much a worker as is one who is a policyholder of industrial accident insurance and commutes to and from work using a means of transportation provided by his or her employer or other similar means (hereinafter referred to as a “worker with transportation benefits”). Yet when a worker without transportation benefits, while commuting to and from work using a conventional route and means not under the control and management of his or her employer, is involved in an accident (hereinafter referred to as an “accident on a conventional commute”), such accident on a conventional commute is not accepted as an occupational accident, which constitutes discriminatory treatment.

The purpose of the industrial accident insurance system is in part to transfer the business owner’s strict liability of compensation; but in the present day, the purpose of protecting the livelihoods of the victim and his or her family from industrial accidents, is growing more important. A worker’s act of commuting to and from work is an act that precedes performance at work, and the two are closely related and inseparable. The act of commuting is in fact bound to the working hours and venue of employment decided by the business owner. The Supreme Court acknowledges accidents that occur during business trips as occupational accidents that have occurred under the control and management of the business owner. Since business trips allow the worker to select the transportation means and route, they are in fact no different from the act of conventional commuting. Therefore, accepting an accident on a conventional commute as an occupational accident so as to protect the worker conforms to the purpose of the industrial accident insurance, which is to guarantee the livelihoods of employees.

Workers without transportation benefits, who have not been provided with vehicles for commuting or other similar means of transportation due to the insufficient size or financial conditions of the workplace, or the unilateral decision or personal matters of the business owner, cannot receive compensation for accidents that occur while commuting, despite being policyholders of industrial accident insurance. There are no

reasonable grounds that can justify such discrimination.

Some problems that may emerge by acknowledging an accident on a conventional commute as an occupational accident under the Industrial Accident Compensation Insurance Act include exacerbating the financial conditions of industrial accident insurances, or increasing insurance premiums paid by the business owner. Such problems can be solved somewhat by limiting the coverage of compensation or making workers partly responsible for paying the premiums. The reality today is that workers without transportation benefits who have become the victim of an accident on a conventional commute do not receive sufficient remedies, even when the perpetrator is held liable. Thus, the mental or physical damage or economic disadvantages sustained by workers without transportation benefits and their families on account of the Instant Provision are extremely grave.

Therefore, the Instant Provision violates the principle of equality under the Constitution for arbitrary discrimination without just grounds against workers without transportation benefits.

3.Orders for Continued Application Following a Decision of Nonconformity

If the Constitutional Court declares the simple unconstitutionality of the Instant Provision, the minimal legal basis that acknowledges an accident on a conventional commute as an occupational accident will be forfeited, which may create a legal vacuum and disorder. Thus, the Court rules that the Instant Provision does not conform to the Constitution, but orders that the provision is applied until it is amended by the legislature by December 31, 2017.

Summary of Dissenting Opinion of Three Justices

Under the Instant Provision, it is reasonable to exclude accidents that occur on a conventional commute which is not under the control and management of the business owner and which cannot be deemed part of

an occupational duty from the scope of occupational accidents, considering the purpose and nature of the industrial accident insurance and the legal principles of occupational accidents. A worker without transportation benefits may be disadvantaged by being unable to benefit from the Industrial Accident Compensation Insurance Act with regard to accidents that occur while commuting. However, such a disadvantage is an inevitable result caused by differences in the working conditions and welfare benefits of each business, not the result of any unconstitutional element of the Instant Provision itself.

It may be desirable to include accidents that occur on a conventional commute in the scope of occupational accidents, for protecting workers without transportation benefits. However, this is an issue to be resolved by the state incrementally through legislation, taking into account the financial conditions of industrial accident insurances, social consensus between business owners and workers, and the overall level of social security.

It has only been three years since the Constitutional Court ruled that the Instant Provision did not violate the Constitution. There does not seem to be any radical change in the constitutional reality that calls for the Instant Provision to be reconsidered in a constitutional adjudication for stricter review, nor does there seem to be any necessity for a new interpretation. Thus, it is unnecessary to hastily overturn a precedent regarding the Instant Provision.

Summary of Concurring Opinion of One Justice

There is no denying that in the modern industrial society, guaranteeing a worker’s safety from the dangers of industrial accidents and survival has become an important part of the state’s duties. Article 32 and Article 34 of the Constitution call for a higher level of protection for people whose ‘minimum necessary material means required for a life worthy of human dignity’ are being threatened by industrial accidents and forpeople closely involved with such circumstances, even if such entitlement

to social security is guaranteed by law under the reservation of possible limitations in national finance and social capacity. Thus, it is necessary to more thoroughly review the equality of entitlements to industrial accident insurance.

Meanwhile, when it comes to the entitlement of workers without transportation benefits to industrial accident insurance for accidents on a conventional commute, the formation of rights under specific legislation has merely been reserved, and the workers without transportation benefits maintain a status under public law that potentially acknowledges the nature of property rights. Therefore, the equality of discrimination between workers with and without transportation benefits in this case should be reviewed more thoroughly, taking such potential nature of property rights into account.

Stronger responsibility and higher consideration will be required on the part of the state and employers with regard to accidents that occur while commuting (nature of the protected area), while payments to workers without transportation benefits who have become the victim of such accidents take on an element of urgency (urgency of protection). However, the Instant Provision does not provide sufficient measures that appropriately and effectively protect workers without transportation benefits, and run against the essence of the industrial accident insurance as a social security system (appropriate level of protection). Thus, there is no justifiable and sufficient reason acceptable under the Constitution for the Instant Provision to discriminate between workers with and without transportation benefits.