Plaintiff (Law Firm Cho & Lee, Attorneys Cho Jong-ho et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

June 13, 2013

1. On December 16, 2011, the Defendant’s revocation of the decision on the payment of medical care benefits, bereaved family benefits, funeral expenses against the Plaintiff and the collection of unjust enrichment shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 18, 2008, the Plaintiff’s husband’s non-party 1 (the deceased, July 19, 1967; hereinafter “the deceased”) entered the CAM professional engineer’s money, and was working for the CAM professional engineer’s money, around 15:00, he/she went through a business trip to the Burte (hereinafter “Burte”) which is a trader in Daejeon-gu, Daejeon, by using his/her own car at around 15:00.

B. On October 10, 2009, in order to complete the work at Burtetete, the Deceased, while driving the said car on October 10, 2009, brought a traffic accident that conflicts with the 15.5 tons of cargo vehicles stopped on the right side (hereinafter “the instant accident accident”). The Deceased, while driving the said car on the national highway No. 45 (hereinafter “the location of the accident”).

C. While the Deceased transferred to Magsung Hospital in the vicinity of the above accident site, on October 11, 2009, the Deceased died due to the heart suspension, the middle-line show, and the pre-service driver’s blood transfusion.

D. On December 16, 2009, the Plaintiff claimed that the deceased’s death constituted “occupational accidents” under Article 5 subparag. 1 of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Insurance Act”). The Defendant paid the insurance benefits of KRW 61,403,440 in total to the Plaintiff from January 31, 201 to October 31, 201 (i.e., the survivors’ compensation annuity amounting to KRW 46,595,70 + KRW 3,375,430 + funeral funeral expenses amounting to KRW 11,432,240).

E. On December 16, 2011, the Defendant revoked ex officio the instant prior disposition on the ground that “the deceased was driven under the influence of alcohol content 0.213% at the time of the instant accident, and the instant accident is an accident caused by the deceased’s criminal act, and does not constitute an occupational accident pursuant to Article 37(2) of the Industrial Accident Compensation Act,” and issued a disposition to collect KRW 61,403,440 of the insurance benefits already paid pursuant to Article 84 of the Industrial Accident Compensation Act as unjust enrichment (hereinafter “instant revocation ex officio disposition”), and to collect unjust enrichment from the Plaintiff (hereinafter “instant revocation disposition”), the instant disposition to collect unjust enrichment was “the instant collection,” and the said two are combined.

【Fact-finding without dispute over the ground for recognition, Gap evidence 1, 2, Eul evidence 9 through 11, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) On October 9, 2009, the Deceased completed his duties at Burditech on October 23:45, 2009, and she only burgically burgically burged burgous burgly with his employees and her employees. The burgical burgical burgical burgical burgical burgical burgical burgical burgical burgical burgous

(2) The police officer collected the deceased's blood and requested an appraisal to the National Institute of Scientific Investigation (hereinafter referred to as the "State and water"). The blood alcohol concentration of the deceased was 0.213% without the consent of the deceased, and the police officer did not have obtained a seizure warrant after the court. Thus, the blood of the deceased constitutes illegally collected evidence, and the report of the State and the number of requests for appraisal and the secondary evidence obtained based on illegally collected evidence is not admissible. Accordingly, the deceased cannot be deemed to have committed a criminal act for drunk driving, and each of the dispositions of this case is unlawful.

(3) Even if the deceased's drinking operation is recognized, the accident of this case is still an occupational accident, since weather conditions competes with the deceased at the time of the accident, and as such, the accident of this case is still an occupational accident.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) First of all, according to the results of the fact-finding on the plaintiff's ground of evidence, Eul evidence Nos. 1-2, Eul evidence Nos. 2 and 3, and the fact-finding on the head of the Suwon District Prosecutors' Office at this court's Office, non-party 2, who belongs to the Yongsan Police Station, without the consent of the deceased on Oct. 10, 2009, collected blood from the deceased to verify the suspected charge of drinking alcohol by the deceased without the consent of the plaintiff. The Chief of the Portal Police Station at the Kannam Police Station at the Kannam University requested the appraisal of blood alcohol concentration between the State and the water on Oct. 12, 2009; the State and the water sent the appraisal request to the Chief of the Kannam Police Station on Oct. 16, 2009 that the blood alcohol concentration is 0.213%; the non-party 2 was not subject to a warrant after the collection of blood or ex post facto.

Therefore, the above blood and appraisal inquiry report in criminal procedure are obtained based on illegally collected evidence and secondary evidence obtained based thereon, and are not admissible in accordance with Article 308-2 of the Criminal Procedure Act (see Supreme Court Decisions 2009Do2109, Apr. 28, 201; 201Do15258, Nov. 15, 201).

However, there is no provision on the exclusion of the admissibility of illegally collected evidence in the Administrative Litigation Act, and the Civil Procedure Act applied mutatis mutandis by Article 8(2) of the Administrative Litigation Act does not have a provision on the exclusion of the admissibility of evidence, and there is no provision on the Civil Procedure Act applied mutatis mutandis by Article 8(2) of the Administrative Litigation Act, and it is difficult to treat equally the civil procedure and administrative litigation premised on the public defense between the parties equal to that of the parties concerned with the aim of giving the prosecutor the duty of truth and guaranteeing the right to counsel by guaranteeing the right to counsel by guaranteeing the right to receive a fair trial through substantial weapons, etc. Therefore, the rules on exclusion of illegally collected evidence in the criminal procedure cannot be deemed to have been applied to the administrative litigation.

As to the instant case, at a place corresponding to the place of crime under Article 216(3) of the Criminal Procedure Act, the judicial police officers may seize blood of the deceased without a warrant. However, pursuant to the proviso of Article 216(3) of the Criminal Procedure Act and Articles 58 and 107(1)3 of the Regulation on Criminal Procedure, a warrant of seizure should be obtained from the court without delay after the request for a warrant stating the grounds for seizure due to forced collection of blood (see the above Decision 2011Do15258, supra). Since the illegality of Non-Party 2’s failure to issue a warrant of subsequent seizure cannot be deemed to have been significantly anti-social or seriously infringed on personal rights, the request for appraisal of the blood and State and water of the deceased collected may be used as evidence in this case. Accordingly, the Plaintiff’s defense of evidence is without merit.

(2) The following facts are acknowledged in addition to Gap evidence Nos. 2, 4-8, Eul evidence Nos. 1, 5-8, 12, and 13 (including the number of each unit), the president of the Korean Medical Association of this Court, and the president of the National Research and Investigation Institute of Science for the overall purport of the arguments as to the fact-finding results.

(A) The Deceased was married to the Plaintiff in 1993 and 1 South and North Korea. The Deceased’s children were 16 years of age (excluding 3 years of age), 13 years of age (excluding 4 years of age), and 10 years of age (excluding 5 years of age). The Plaintiff is a master without a certain occupation.

(B) The Deceased worked from thenamte to 08:30 on an ordinary day to 20:30 on an ordinary day, and arrived at the company around 07:40 on an ordinary day at around 06:30.

(C) On October 9, 2009, the deceased was the only CAM progs in the southtech, and when the CAM data was shotly operated in the process of printing CAM data in the Burditech on October 9, 2009, the deceased decided to supply the heads of semiconductor production parts in the southtech to the Burditech, and around 15:00 of the same day, the deceased was going to travel to the Burditech in the Daejeon-gu.

(D) From 17:30 to 23:45, the deceased arrived at the Burditech, and 17:30 to 23:45, the deceased called “the head of Burdic, Nonparty 6 and the Plaintiff for the CAM data,” and called the Plaintiff at around 22:00, that “the Plaintiff is able to live in her body. .. .. Hashe must see the company prior to the new wall, so it is not possible to go back to the house.”

(E) On October 10, 2009, the Deceased completed his duties on October 10, 2000, and took part in Nonparty 6 and also in the restaurant. On the same day, the Deceased took part in the restaurant from 01:50 to 02:00.

(F) On March 15, 2012, Nonparty 6 stated to the Plaintiff on March 15, 2012, that “the deceased was dnicking about 2-3 residues while drinking dys of rice and drinking medicinal drugs as it was no longer good, and the body was unable to dyke alcohol and did not have the right to do so.”

(G) Although Burditech had the deceased settled △△△△△△△△△△△△△ in the vicinity of the company, the deceased, upon receiving instructions from Nonparty 7, the representative director of the Climate Tech, who started work on October 10, 2009 before the commencement of the work, and completed the COM data program hosting work,” shall return to the marc in the marc where the marc was located in Pyeongtaek-si from October 10, 2009. As such, he did not accommodation in the above mar, and immediately driven the said marc by driving the said marc immediately after driving the said marc.

(h) On October 10, 2009, the Deceased called the Plaintiff at the vicinity of the human body of 04:02,02,000, and the Plaintiff was able to receive the phone from the Deceased and used to drive his own franxG car with his own franxG’s own franchisor, franchisor and franchisor.

(E) On November 29, 201, the Deceased stated that “The Deceased did not have any snick, snick, and snick, but did not think of drinking because he had any snick, snick, snick, and snick, and dMB. At the time, the Plaintiff had a sexual intercourse with the Plaintiff. At the time, on November 29, 201, the Plaintiff stated that “On the part of the Defendant, on the part of the Plaintiff, the Deceased did not think that he was under the influence of alcohol, and there was no snick, but no snick.” The Plaintiff did not think that the Deceased was under the influence of alcohol, and that he would not drive if the Deceased was snick.”

(j) On October 10, 2009, the Deceased was involved in the instant accident that caused the Plaintiff to drive the said marina car by “06:00.00.” On October 10, 2009, the part of the freight (vehicle number omitted), which was parked on the right side of the instant accident, to the end of the instant accident, in front of the instant marina car. At the time of the accident, the Deceased was 0.213% of the blood alcohol concentration of the Deceased at the time of the accident. At the time of the accident, the Deceased was 0.213% of the blood alcohol concentration of the Deceased, and the location of the instant accident was 0.2% of the inside.

(카) 망인은 2008. 12. 6. 건강검진 결과 감마지티피가 240 U/L이었고, 2009. 1. 14. 건강검진 결과 식전 혈당이 322㎎/㎗로 당뇨질환이 있는 것으로 나왔다. 망인은 2009. 1. 28.부터 2009. 9. 3.까지 당뇨병으로 6차례의 건강보험 요양급여를 받았다.

(l) Medical opinions

1) Results of inquiry into the president of the Korean Medical Association

A) As to whether a physical disease, if any, can fall into the ability of alcohol harming the body

There is no objective evidence that there was a disease between the deceased. In the records of the deceased’s health examination, the effect related to the general disease between AST and ALT, not Alphan, within the normal range. The increase of the mathalty by 240 U/L is likely to be caused by frequent drinking habits, overflow, or urine, or urology. There is no objective evidence that the mathality of alcohol decomposition is low in the diseases between chronicly active hepatitis or chronic hepatitis B, etc. This is because there is no objective material, etc. that measured alcohol decomposition ability, and there is no clear evidence that the above mentioned effective system has lost its function in chronic hepatitis. However, if the mathal function has deteriorated seriously, the possibility of decomposition can not be ruled out at all at the latest after the maximum alcohol rate, but there is no possibility that alcohol might be lowered.

B) Whether the ability of alcohol piracy can be diminished compared to normal cases where drinking is done under a lack of water surface and extreme depression

There is no clear relation about the effect of de-degradation of alcohol concentration in the blood of the shortage of water surface.

C) Whether it is possible to drive normally from 0.213% to 0.23% of alcohol concentration in blood.

In a case where the blood alcohol concentration is 0.213%, symptoms, such as loss of the nearby land harmony movement, substantial confusion in the direction disorder, etc. Accordingly, normal driving is impossible. In conclusion, even if the blood alcohol concentration is 0.213%, the possibility of driving cannot be ruled out at all even if the blood alcohol concentration is 0.213%.

2) The result of each fact-finding with respect to the Director of the National Scientific Investigation Research Institute of this Court

A) If there is a liver disease (e.g., local livers, livers, livers, livers, etc.), the alcohol ambassador capacity is known to fall below normals. However, as for a chronic alcohol user, the alcohol ambassador capacity is rather increased by adaptation, so it is true that the event is higher than normals. In this case, the results of the health examination presented as an appraisal (not later than 1 year and eight months before the date of the occurrence of the case) conducted on February 14, 2008, the matioids are increased by 240 U/L and the other livers function is occurring in normals. The possibility of having the alcohol prior to the examination was high, and the possibility of other livers is not known as the result of the relevant examination. In the case of the deceased, it is not reasonable to determine whether the e.g., the deceased’s body was formed at the time of the occurrence of the e.g., the deceased’s body at the time of the instant accident.

B) If the blood alcohol content is 0.15 to 0.25%, it is easy to conduct traffic accidents due to the fact that there are many persons whose eye is 0.15 to 0.25%, whose eye is visible, the sense of skin is lowered, the ability of care is calculated, the ability to pay attention is calculated, and the accident is easily assessed.

D. Determination

(1) As to the circumstances of the instant accident

The defendant, who was driven by the deceased to complete his duties in Burditech and return to the Vietnam, does not have been affected by the accident, but rather, he completed his duties in Burditech and returned to work in his house and took a rest, and therefore, he asserts that it is highly likely that drinking of the deceased would have been done at his own home, and therefore, the defendant will examine it.

According to the statement in Eul evidence No. 4, the plaintiff was investigated by the police on October 10, 2009, after the occurrence of the accident in this case, and it was recognized that "the deceased reported the representative team axis game at home and worked there after diving." The fact that the representative team of the Republic of Korea and Eul's representative team of the Republic of Korea from around 23:30 on October 9, 2009, and the relay broadcasting of the youth representative team of the Republic of Korea and Eul from around 20:30 on October 23, 2009 is not a dispute between the parties or can be recognized by the purport of the whole pleadings.

(1) However, as seen earlier, the deceased went to a restaurant near Daejeon on October 10, 200 to 02:50. According to the evidence No. 4, the deceased’s residence at the time was recognized to be the (location omitted) of the YY. Thus, the deceased’s arrival at the above restaurant at the above restaurant start at the above restaurant and going to rest at the above house at the above house at the above 04:40,00, the time and distance from the above house is difficult. ② According to the evidence No. 5 and No. 8, the deceased’s arrival at the above house at the above 04:50 on October 10, 2009. According to the above evidence, the deceased’s cell phone call from the Plaintiff on October 10, 2009 to 02: if the deceased was in the above residence, it cannot be seen that there was no reason to call the Plaintiff, and ③ The plaintiff’s assertion that he was made within the police police station’s answer to the accident No. 8. 1941.

(2) Whether the instant accident constitutes an occupational accident

According to Article 37(1)1(a) of the Industrial Accident Compensation Act and Article 27(2) of the Enforcement Decree of the Industrial Accident Compensation Act, an accident that occurred while an employee is performing his/her duties outside his/her workplace under the direction of the employer shall be deemed an accident on duty unless it falls under an accident that occurs when the employee is in violation of the specific direction of the employer, his/her private act, or is off his/her normal business trip route, and if the employee dies of an accident on duty, it shall be deemed an accident on duty, but if there

Meanwhile, according to the main sentence of Article 37(2) of the Industrial Accident Compensation Act, death caused by an employee's criminal act does not constitute an occupational accident. In light of each of the above statutes, in cases where an accident occurred due to competition between the employee's criminal act and his/her duties or other circumstances, whether the accident is within the scope of danger ordinarily accompanying in the course of performing his/her duties and whether the criminal act unrelated to his/her duties has reached the degree of cutting the proximate causal relation between the occurrence of the accident and the occurrence of the accident, shall be examined (see Supreme Court Decisions 2000Du5562, Jul. 27, 2001; 2009Du508, Apr. 9, 2009).

The deceased was involved in the accident of this case while driving a car to return the vehicle to the Vietnam test at the direction of the business owner. The deceased cannot be deemed to have left the normal course of business trip solely on the ground that he met the plaintiff on the way on which the deceased moved to the Vietnam test, or that the deceased was sexually related with the plaintiff on the way on which the deceased moved to the Vietnam test. Thus, the accident of this case constitutes an occupational accident.

However, the deceased was driven under the state of alcohol concentration of 0.213%, which is a criminal act that imposes imprisonment of not less than one year but not more than three years or a fine of not less than 5 million won but not more than 10 million won pursuant to Articles 148-2(2)1 and 44(1) of the Road Traffic Act, and according to the above medical opinion, it is determined that there is a causal relationship between the crime of drunk driving and the occurrence of the instant accident.

Furthermore, we can see whether the above act of drinking driving has reached the degree of cutting the proximate causal relation between the deceased's work and the occurrence of the accident in this case. ① The deceased's act of drinking while drinking with Nonparty 6 was a private group, not an official common sense, and thus cannot be seen as extension of work. ② According to the above medical opinion, the disease and urology of the deceased cannot be seen as a rise in blood alcohol concentration. ③ According to the above medical opinion, the deceased presumed to drink a large amount of drinking alcohol. ③ According to the above medical opinion, there were symptoms such as loss of the Hemical movement, significant mental confusion, direction disorder, etc. If the blood alcohol concentration is 0.213%, there were symptoms such as the loss of the Hemal harmonious movement, and the blood alcohol concentration at least 0.05% but less than 0.1%, less than 0.1%, less than 0.2%, and the death's main cause for drinking and more than 2% of the accident in this case can not be viewed as a causal causal relation between the deceased's work and the accident.

Therefore, the deceased’s death is not an occupational accident, and thus, the preceding disposition of this case is an unlawful disposition that is defective.

(3) Whether each disposition of this case is unlawful

(A) The instant disposition constitutes revocation ex officio of the beneficial administrative act, and the collection of the instant disposition is to collect an amount equivalent to the amount of insurance benefits erroneously paid to the Plaintiff on the premise that the instant revocation disposition was duly made. Therefore, if the instant disposition is unlawful, each of the instant dispositions becomes unlawful, and thus, we examine whether the instant disposition was unlawful.

(B) If a citizen acquires a certain benefit and right through a certain administrative disposition, the administrative disposition revoking the previous administrative disposition must be a separate administrative disposition deprived of the existing interest and right of the person already acquired, and the public need to cancel the administrative disposition to be cancelled. Furthermore, even if there is a defect in the administrative disposition, the administrative disposition can be cancelled only if it is a strong measure to justify the disadvantage of the party to the public interest, such as the necessity of the public interest, protection of trust and infringement of the stability of legal life, etc., and then it is possible to cancel the disposition that infringes on the existing interest and right (Supreme Court Decision 2011Du2375 Decided March 29, 2012).

However, if the defect of the disposition was caused by the party's act of abolition or other fraudulent means, it shall be deemed that the party was aware that the benefit from the disposition was illegally acquired, and the party could have anticipated the revocation thereof. Thus, it cannot be invoked as well as the administrative agency's failure to consider it, even if it did not abuse its discretion (Supreme Court Decision 2001Du5286 Decided February 5, 2002).

(C) On December 16, 2009, as to whether the Plaintiff claimed the payment of bereaved family's benefits and funeral expenses to the Defendant on December 16, 2009, it is true that the Plaintiff used her bereaved family's benefits and funeral expenses, and whether the Plaintiff was using her fluorous or other fraudulent methods, the Plaintiff's phone call from the Deceased on October 10, 2009, and the Plaintiff met the Deceased, and it seems that the Plaintiff did not take the deceased. However, the Plaintiff appears to have failed to do so. Meanwhile, according to the evidence evidence No. 6, even if the Defendant prepared by the Leecheon Police Station on October 16, 2009, the Defendant did not have any obligation to inform the Plaintiff of her fluorous alcohol content, and there is no evidence to deem that the Plaintiff did not actively have any obligation to notify the Plaintiff of fluorous alcohol content at the time of the Plaintiff's request for an appraisal of fluorous alcohol content.

Therefore, the public interest needs to cancel the prior disposition of this case and the disadvantage suffered by the plaintiff due to the cancellation are compared.

Public interest needs to cancel the prior disposition of this case are to ensure the legality of administration by cancelling defective administrative dispositions, and to expand financial resources for industrial accident compensation insurance benefits.

① However, the Deceased’s business trip was caused by the accident of this case according to the business owner’s instruction, ② From October 9, 2009 to October 07:40, 2009 to October 10, 2009 to October 10, 204:40, the Deceased did not take a 21-hour quantity and did an act or act related to the duties or act in substitution until the accident of this case occurred. As such, the Deceased appears to have been in a considerable state. As such, the zone of the site for the accident of this case was inside, and the driver of the freight of this case was negligent in stopping the above vehicle on the side, and thus, the proximate causal relation between the duties and the accident of this case cannot be acknowledged, considering that the defect of the preceding disposition of this case cannot be deemed to have contributed to a certain degree to the occurrence of the accident of this case, it cannot be deemed that the defect of the preceding disposition of this case was serious, and thus, it cannot be deemed that the legality of the administrative disposition of this case would be achieved.

① On the other hand, the Plaintiff has no specific occupation, and the Plaintiff is the main agent to care for his children aged 20, 17, and 14, and ② the Defendant was unaware of the request for appraisal by the State and the number of people at the time of the instant prior disposition, and there was a cause attributable to the instant prior disposition, which was caused by the Defendant’s failure to know the request, and ③ the Defendant had to cancel the instant prior disposition more than 1 year and 11 months after the date of the instant prior disposition, it is deemed that there was a significant disadvantage such as the right to obtain, protection of trust, and infringement of legal stability, etc. caused by the cancellation of the instant prior disposition.

Therefore, since the public interest need to cancel the prior disposition of this case cannot be deemed to have been strong enough to justify the plaintiff's above disadvantage, the cancellation disposition of this case is unlawful, and the collection disposition of this case on the premise that the cancellation disposition of this case is lawful is also unlawful.

3. Conclusion

If so, the plaintiff's claim is justified and accepted.

[Attachment Omission of Related Acts]

Judges Lee Lee (Presiding Judge) (Presiding Judge)