In a case where a Chinese employee working as an employee of the electricity machinery and electrical parts assembly company, and a Chinese employee fells from the second floor office window of the company to avoid the crackdown on illegal aliens by the Immigration Office and suffers from an injury, such as a two-frames, the case holding that the above worker's act constitutes an occupational accident on the ground that the process of the act is under the control and management of the business owner, and thus the accident is an occupational accident.

In a case where a Chinese employee working as an employee of the electricity machinery and electrical parts assembly company was faced with illness, such as a two-story office windows of the company in order to avoid the crackdown on illegal aliens, the case holding that the above worker's act constitutes an act for an individual to avoid various disadvantages that he suffers, but on the other hand, the above worker's act constitutes an act for an individual to avoid multiple disadvantages that he/she suffers, on the other hand, if he/she was unable to employ a Korean employee at the recruitment advertisement more than several times to operate a stable and continuous business (in addition, the employer who employs a non-resident shall be punished by imprisonment or imprisonment without prison labor for not more than three years or by a fine not exceeding 20 million won (Article 94-5-2 and Article 18 (3) of the Immigration Control Act), and this act is an act for the employer), and the head of the management division directly regulates the above worker's accident and thereby, the employer's act constitutes an act under the direction of the above Immigration Control Office, including the above worker's act.

Article 4 subparag. 1 of the former Industrial Accident Compensation Insurance Act (wholly amended by Act No. 8373 of Apr. 11, 2007) (see current Article 5 subparag. 1) and Article 32 of the former Enforcement Rule of the Industrial Accident Compensation Insurance Act (wholly amended by Ordinance of the Ministry of Labor No. 304 of Jul. 1, 2008) (see current Article 27 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act)

[Judgment of the court below]

Korea Labor Welfare Corporation

Changwon District Court Decision 2006Gudan3262 decided January 15, 2008

May 23, 2008

1. Revocation of the first instance judgment.

2. On June 13, 2006, the defendant revoked the disposition of non-approval for oriental medical treatment against the plaintiff.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in each entry in Gap evidence 2 through 5, Eul evidence 1, Eul evidence 2-1, and Eul evidence 2-2.

A. At around 15:30 on May 2, 2006, the Plaintiff was serving as a worker of the chemical electronics, who is an electrical device or an electrical and electronic component assembly company, and applied for approval of medical care for the above injury and disease to the Defendant on May 8, 2005, when the Plaintiff was suffering from an injury or disease, such as a ductal ductal ductal ductal ductal ductal ductal ductal ductal ductal ductal ductal ductal ductal ductal dulle, and a masan Immigration Office’s second floor office window installed to avoid the crackdown on illegal aliens.

B. However, on June 13, 2006, the Defendant rendered a disposition not to grant medical care for the above injury and disease (hereinafter “instant disposition”) on the ground that the instant accident occurred in the course of escape to avoid crackdown on illegal aliens, and thus does not constitute occupational accidents.

2. Whether the instant disposition is lawful

A. The parties' assertion

The plaintiff asserts that the accident in this case constitutes an occupational accident, and the defendant asserts that the accident in this case occurred in the course of escape to avoid crackdown on illegal aliens, and thus does not constitute an occupational accident.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Facts of recognition

The following facts may be acknowledged when each of the evidence mentioned above is included in Gap evidence Nos. 1, 7, 8, 6-1 through 5, Eul evidence Nos. 3, 5, 7, 8, Eul evidence Nos. 4-1 through 12, Eul evidence Nos. 6-1, 2, Eul evidence Nos. 9, 10-1, 2, 3, and the testimony of non-party Nos. 1 and non-party No. 2 are added.

(1) On March 5, 2005, the Plaintiff, China, entered the Republic of Korea as a faculty member studying abroad, and received language training at the Seobabol University located in Seocho-si. On February 2006, the Plaintiff left the above university without permission and worked as a staff member of the e-mail from the 6th day of the same month.

(2) On May 2, 2006, at least 15:30 on May 2, 2006, the control group of the Muschi Immigration Office entered the emulit electronic system for the control of illegal aliens. Nonparty 3, the management department of the emulit electronic system, known of this fact, reported this to Nonparty 1, the business owner of the emulit electronic system, who was going to the outside at the time, and Nonparty 1 instructed Nonparty 1, including the Plaintiff, to escape all illegal aliens, and ordered the Plaintiff to escape from the emulit electronic system office with two other illegal aliens.

(3) In accordance with the direction of Nonparty 3, the Plaintiff was sent to the above second floor office with two other illegal aliens. However, the control group of the Mapo Immigration Office attempted to enter the above second floor office to search the illegal aliens. The Korean workers under the name of the Ministry of Masung electronic department were informed to the Plaintiff, etc. by receipt. The Plaintiff attempted to take out the building with the second floor office windows of the outer wall, along with two other illegal aliens, to take out the air-conditioning pipe of the outer wall through the second floor office, and the disaster of this case where the Plaintiff fell to the cement floor of the first floor, which fell to the wind of the air-conditioning pipe, among the roads that the Plaintiff moves out of the building.

(4) Meanwhile, the non-party 1 placed a recruitment advertisement on several occasions to employ Korean workers while operating the e-mail, and eventually failed to do so, the non-party 1 was employed as an employee of illegal aliens including the plaintiff. At the time of the accident of this case, the non-party 1 was four illegal aliens among the 30 workers of the entire e-mail at the time of the accident of this case.

D. Determination

(1) In order for a worker to be recognized as an occupational accident, the process of the worker's act should be deemed to be under the control and management of the business owner, such as the worker's act of performing a certain act and preparing or arranging the worker's work, the physiological act which is deemed to be incidental to the worker's social norms, or the act of participating in an event held in accordance with the employer's instruction or hosting, rules of employment, collective agreement, or other practices (see Supreme Court Decisions 91Nu3314, Nov. 8, 1991; 9Nu14633, Aug. 23, 1996; 9Du1899, Apr. 9, 199).

(2) As to the instant case, the Plaintiff suffered from the instant accident in the course of escape to avoid the control of the Mapo Immigration Office, i.e., to avoid the crackdown. The Plaintiff’s act of contact constitutes an act for the Plaintiff to avoid various disadvantages suffered by the Plaintiff, but on the other hand, it is a room for the Plaintiff to control the Plaintiff’s act in the process of regulating the Plaintiff’s act of personal escape, including the Plaintiff’s act of regulating e-mail in the process of regulating e-mail in a series of circumstances where the Plaintiff’s act was conducted without any choice to maintain stability and continuous operation of e-mail [the business owner who employs a non-resident who has no status of sojourn for not more than 3 years or a fine not exceeding 20 million won (Articles 94 subparag. 5-2 and 18(3) of the Immigration Control Act). Thus, the Plaintiff’s act of regulating the Plaintiff’s act of personal escape through the head of the management department of e-mail to regulate e-mail in the process of regulating the Plaintiff’s act of disaster escape.

(3) Therefore, it is reasonable to deem that the instant accident constitutes an occupational accident, and thus, the instant disposition was unlawful on a different premise.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance which has different conclusions is unfair, and it is so decided as per Disposition by cancelling this and ordering the cancellation of the disposition of this case.

[Attachment]

Judges Kim Shin (Presiding Judge)