2010Guhap2934 Revocation of revocation of the payment of bereaved family's benefits and funeral expenses

Plaintiff:

Jeon Jin-gu Jin-gu, Jeon Jin-gu

The full-time operation of the city prior to the place of service;

Korea Labor Welfare Corporation

Yeongdeungpo-gu Seoul Metropolitan Government Yeongdeungpo-dong 2 94 - 267

- 51 - 6

Representative Shin Young-chul

For the last use of the litigation performer

March 22, 2011

April 19, 2011

1. On December 3, 2009, the defendant revoked the disposition of bereaved family's benefits and funeral site pay to the plaintiff on December 3, 2009.

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

The order is as set forth in the text.

1. Details of the disposition;

A. On July 24, 2007, the Plaintiff’s husband (hereinafter referred to as “the Deceased”) was employed as a security guard on July 24, 2007 by the Plaintiff as the Plaintiff’s husband, and from June 1, 2009, the Plaintiff was in charge of verifying and monitoring whether the medical equipment, etc. was taken out of the hospital that was attached to the non-party bank XX (hereinafter referred to as “non-party hospital”).

B. On October 27, 2009, at around 30, the deceased completed a meal service at the non-party hospital's house located in the Jinjin-gu, Jeon-gu, Jeon-si for the purpose of the occupation-building at around 11:12: Around 10, the deceased died of the accident (hereinafter referred to as the "accident in this case") that had been faced with the right-hand quith from the front side of the funeral hall at around 12:0, the deceased was under the diagnosis of the "busone, pulmonary damage" and was under the diagnosis of the "busone and pulmonary damage", and around 20:0 on November 9, 2009, the deceased died as the "prison function" of the non-party hospital.

C. Accordingly, on November 12, 2009, the Plaintiff claimed bereaved family benefits and funeral expenses against the Defendant on the ground that the instant accident constituted an occupational accident. However, on December 3, 2009, the Defendant rendered the instant disposition rejecting it on the ground that “the death of the deceased was caused by an accident that occurred during a recess period during which he/she may freely use outside the employer’s direction and supervision, and does not constitute an occupational accident.”

【Uncontentious facts, Gap evidence 1-1 to 6, Gap evidence 2 and 3, Eul evidence 1-1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The allegations and issues of the parties

1) The Plaintiff asserts that the instant accident that occurred while the Deceased did not have the right to use the restaurant of the non-party hospital, and the non-party company did not have the right to use the restaurant designated by the non-party hospital, and it did not have any other designated restaurant at the general restaurant of the workplace because it was not possible for the non-party company to sell the restaurant at the non-party hospital, the Defendant’s disposition of this case was unlawful on a different premise, as long as the Plaintiff continued to and repeatedly approved the business owner’s implied approval and continued to use the o’s house at o’s home and went back to the workplace and returned to the workplace.

2) On the other hand, the Defendant asserts that the act of an employee during a recess is under the control and management of the ordinary business owner, as the hours of recess are guaranteed to be freely used by the employee, and that the act of the employee during the recess is not possible. However, as long as the work form of the deceased was relatively freely available, and the place and method of the occupational accident were the discretion of the deceased, the accident in this case cannot be viewed as an "accident that occurred due to the act that may be deemed to be under the control and management of the business owner during the recess hours," and that the accident in this case is not a "accident that occurred due to the act that may be deemed to be under the control and management of the business owner" and thus

3) Therefore, the issue of this case is whether the death of the deceased constitutes an occupational accident, and in particular, whether the accident of this case constitutes "accident that occurred due to an act that may be viewed as being under the control and management of the business owner during recess hours" under Article 37 (1) 1 (e) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 9794 of Oct. 9, 2009; hereinafter "former Industrial Accident Compensation Insurance Act").

(b) Relevant statutes;

As shown in the attached Form.

(c) Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the following facts and the whole purport of the statements and arguments as set forth in the evidence and evidence set forth in Gap's evidence set forth in subparagraph 4-2, 3, 4, Gap's evidence set forth in subparagraph 5-2, 3, 4, Gap's evidence set forth in subparagraphs 7 and 10, Eul's evidence set forth in subparagraph 4-1, and Eul's evidence set forth in subparagraph 4-2.

1) The deceased’s main duty is to confirm and monitor whether corporeal movables, such as medical equipment, etc., within the hospital attached by the non-party XX bank, are taken out of the hospital attached by the non-party XX bank each day, and there was no separate office space, such as the office, so the deceased worked in the first floor of the non-party hospital at the non-party hospital at the time of the day, and the hours of his duty was 9:0 to 18:00 on a day, and the hours of his duty was 11:30 to 13:0 on a Saturday, and the hours of his daily duty was able to use one hour on a voluntary basis between 11:30 to 30 on a day.

2) On the other hand, the non-party company did not designate an external restaurant where the deceased would be able to pay a separate food stand to the deceased or to carry out a braille, and allowed the deceased to resolve the death by himself. The non-party hospital, a place where the deceased works, takes out the visit of the hospital itself in the non-party hospital, which is the place where the deceased works.

In order to prevent the deceased from using the hospital restaurant. Considering the circumstances, the deceased did not have a place where meals should be performed even if he prepared urban communities, the non-party company allowed the deceased to do so at his own home and to be able to do so, and the deceased was working as a room for the deceased to return to the hospital at his own house at his own house at his own house at the time of Pyeongtaek-gu Seoul Special Metropolitan City, and the deceased was working as a room for the deceased's own house at his own house at his own house at his own house at his own house at his own house at his own house at the time of his usual

3) On the day of the instant accident, the Deceased got out of the place of business during the time of the instant accident, after going to his own house, and after going to his own house, he was killed in the first place of business, and immediately returned to the hospital without going through normal patrol.

D. Determination

Article 37 (1) 1 (e) of the former Industrial Accident Compensation Insurance Act provides that an occupational accident shall be one of the cases where a worker dies as “an accident that is caused by an act that is deemed to be under the control and management of the business owner during the recess hours.” In general, since an ordinary worker is permitted to freely act during the recess hours, it cannot be said that the worker is under the control and management of the business owner, but the act of the worker during the recess is related to the provision of labor after the end of the recess hours. As such, if the activity is deemed to be under the control and management of the business owner, such as the act of the worker during the hours of recess, the act of the worker during the hours of recess, the act of preparing or arranging for the work, or the act of the worker during the hours of recess, and the act is deemed to be accompanied by social norms, it can be recognized as an occupational accident (see Supreme Court Decision 2004Du6549, Dec. 24, 2004).

With respect to this case, the following circumstances revealed by the facts of recognition as mentioned above, that is, the non-party company did not pay the deceased a separate heavy food room or designate an outside restaurant capable of carrying out corrosioning, and had the deceased find out and resolve it. At that time, the non-party hospital prevented the deceased from using the cafeteria restaurant within the hospital, and it does not have a place to drink it even if the deceased’s urban landscape, the deceased worked in the form of returning to the non-party hospital, which is the working place, after coming out of his own house, and he was well aware of these circumstances. Thus, the non-party company’s act of removing the deceased’s own house and did not appear to have been outside of the view of the non-party company’s accident management, and the deceased’s act of returning to the hospital without his own mind or mind that it constitutes an act of returning to the hospital in light of the fact that the deceased’s industrial accident occurred on the day of this case’s accident, it should be deemed that the deceased’s act of returning to the hospital without his own mind or mind.

E. Sub-committee

Therefore, under different premise, the defendant's disposition of this case, which ordered the payment of the plaintiff's survivors' benefits and funeral expenses, should be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges Kim Jong-hwan

Judges Yoon Dok-gi

Judges Kim Jong-young

Relevant statutes

/Gu Industrial Accident Compensation Insurance Act (amended by Act No. 9794 of October 9, 2009)

Article 5 (Definition)

The terms used in this Act shall be defined as follows:

1. The term "occupational accident" means an injury, disease, disability or death of a worker caused by an occupational reason;

Article 37 (Standards for Recognition of Occupational Accidents)

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

1. An occupational accident:

(a) An accident that happens while a worker performs a duty under an employment contract or any other act incidental thereto;

(b) An accident that happens due to a defect or negligence in management of a facility, etc. provided by a business owner while using such facility, etc.;

(c) Any accident that happens while leaving the service under control and management by the business owner, such as using the means of transportation provided by the business owner or means of transportation equivalent thereto;

(d) An accident under the supervision of the business owner or during preparation for an event or event in compliance with the direction of the business owner;

(e) An accident that happens due to an act deemed under the control and management of the business owner during recess hours;

(f) Other accidents in connection with the business affairs.

(2) The intentional injury, self-injury, or criminal act committed by a worker or an injury, disease, disability, or death caused by such act shall not be deemed an occupational accident: Provided, That an injury, disease, disability, or death caused by an act conducted while the injury, disease, disability, or death is clearly deteriorated and where any ground prescribed by Presidential Decree exists, such act shall be deemed an occupational accident.

(3) Specific criteria for recognition of occupational accidents shall be prescribed by Presidential Decree.

former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 22060, Feb. 24, 2010)

Article 27 (Accidents During Performance of Duties)

(1) An accident that happens while a worker is carrying out any of the following acts shall be deemed an accident on duty under Article 37 (1) 1 (a) of the Act:

1. Performing duties under an employment contract;

2. An act of biological necessity, such as a roadside, etc. performed in the course of performing his/her duties;

3. Preparing for or finishing up work and other necessary acts incidental to his/her duties;

4. Acts that are expected by social norms, such as emergency evacuation and rescue due to an unexpected accident that happens inside the place of business, such as a natural disaster or fire;

(2) An accident that happens while a worker is performing his/her duties outside the workplace by following instructions from the employer shall be deemed an accident on duty under Article 37 (1) 1 (a) of the Act: Provided, That an accident that happens when the worker is carrying out an act in violation of specific instructions from the employer, the worker's private act, or the worker is off his/her normal business trip course shall not be deemed an accident on duty.

(3) Any accident that happens in connection with the business from the time an employee who has no fixed place of business due to the nature of his/her business arrives at the first place of business to the time his/her business is completed and then leaves the last place of business, shall be deemed an accident on duty under Article 37 (1) 1 (a) of the Act.