In a case where a worker retired from a car due to an essential business necessity of the company, and died of a traffic accident, the case holding that the method of retirement and the selection of the path cannot be deemed as having been actually reserved against the deceased, and that it constitutes an occupational accident under the Industrial Accident Compensation Insurance Act, on the ground that the employer was under the objective control and management of the company.

Article 4 subparag. 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007) (see Article 5 subparag. 1 of the current Act)

Plaintiff (Law Firm Future, Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

Busan High Court Decision 2005Nu4076 delivered on January 27, 2006

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

Article 4 subparag. 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373, Apr. 11, 2007; hereinafter “Industrial Accident”) refers to an accident caused by the business owner’s control and management under the employment contract between the workers and the business owner, or an ordinary activity incidental thereto. Generally, even if the number of workers’ departure and retirement are closely and partly related to the business of providing labor, it cannot be deemed that the number of workers’ departure and retirement methods and the route are ordinarily 20. 20 times, and it cannot be deemed that there is a close relation between the two workers’ departure and retirement methods and the route 20. 20 times, and it can be deemed that there is no special relation between the two workers’ removal and retirement methods and the route 20. 20 times, and it can be deemed that there is a close relation between the two workers’ removal and retirement method and the workplace 20. 20 times, and thus, it can be deemed that there is an occupational accident (see Supreme Court en banc Decision 2000Du1475, Sept. 25, 208, etc.

According to the reasoning of the judgment below, the court below determined as follows: (a) the deceased, who was a general secretary of the non-party company on October 10, 2004 and was in charge of various duties as indicated in the judgment, such as wages and sending documents, after entering the office on October 10, 2004; (b) the deceased went to the office around 21:0 to 23:00; and (c) the deceased went to the office on October 29 of the same year (it is obvious that the judgment was 10.28) and went to the office on October 29 of the same year; and (d) the deceased did not go to the office at around 22:00 on the same day; and (e) the deceased's mother's accident was caused by transfer in the name of the deceased's mother; and (e) the deceased's death did not constitute a traffic accident involving the deceased's death during his/her night-time work and management of the deceased's vehicle at around 20:208.

However, according to the evidence and records adopted by the court below, the deceased has worked almost every day including holidays since his membership and continued to work for night time. This is due to the non-party company's occupational needs before his opening of work. The work performed by the deceased at the time was objectively excessive, and was planned in advance to take part in the company opening ceremony prior to his previous accident. The deceased's appearance prior to his previous opening of work is an official meeting of the company that was planned in advance, and it can not be seen that the work performed by all four employees including the deceased, including the head of the general affairs division, went back to the company under the direction of the head of the general affairs division after his attendance without drinking, and it can be seen that there was no possibility of using the deceased's vehicle at night in order to use the deceased's vehicle at night in preparation for the above accident in light of the above facts and the legal principles, it can be seen that there was no room to view that the work conducted by the deceased was necessary to use the deceased's vehicle at night.

Furthermore, under such circumstances, it cannot be readily concluded that the instant traffic accident occurred solely due to the driver’s negligence regardless of the deceased’s duties.

Nevertheless, the lower court’s determination that the instant accident was not an occupational accident or there was no proximate causal relation with the business by failing to exhaust all necessary deliberations as to the existence of exceptional circumstances necessary for the determination of an occupational accident in the course of departure or retirement as seen above, is erroneous in the misapprehension of the legal doctrine on an occupational accident under the Industrial Accident Insurance Act, which led to failure to exhaust all necessary deliberations.

The ground of appeal pointing this out is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)