[1] Requirements and criteria for determining whether an accident occurred during departure or retirement constitutes “occupational accident” under Article 4 subparag. 1 of the Industrial Accident Compensation Insurance Act

[2] The case holding that it constitutes an occupational accident in case where a worker was suffering from an accident while leaving or leaving a private car at night at a place of work located outside of the public transport at night

[1] The term "occupational accident" under Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act refers to an accident caused by an employee's performance of duties or ordinary activities incidental thereto under the control and management of the employee's labor contract with the employer. The accident that occurred at the time of departure or retirement of the employee is closely and unreasonably related to the business of providing labor, but it cannot be said that the employee's selection of the method and route is reserved to the employee, so it cannot be said that the accident that occurred during departure or retirement is under the control and management of the employee's ordinary business. Thus, it should be determined not only by the employee's selection of the method and route, but also by the employee's selection of the means of transportation provided by the employee for the purpose of becoming an occupational accident, such as the employee's use or retirement of means of transportation or other means of transportation equivalent thereto, but also by the employee's selection of other means and management methods.

[2] The case holding that, in case where a worker was suffering from an accident while leaving or leaving a private car at a place of work where the public transport was located at night when the worker was cut off, it is reasonable to view that the process of leaving or leaving a car was under the control and management of the employer, considering various circumstances, such as the worker's going out and going out, going out, going out, going out, and going out, even if the employer did not provide the worker with the means of transportation for going out and going out or subsidize the oil expenses, and the vehicle maintenance expenses, etc.

[1] Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act, Article 35 (4) subparagraph 1 of the Enforcement Rule of the Industrial Accident Compensation Insurance Act / [2] Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act, Article 35 (4) subparagraph 1 of the Enforcement Rule of the

[1] Supreme Court Decision 97Nu13009 delivered on November 14, 1997 (Gong1997Ha, 3880) Supreme Court Decision 99Da2474 delivered on September 3, 1999 (Gong1999Ha, 2049Ha, 2049) Supreme Court Decision 2005Du4458 delivered on September 29, 2005 (Gong2005Ha, 1698)

Plaintiff

Korea Labor Welfare Corporation

November 8, 2006

1. On April 18, 2006, the defendant revoked the disposition of non-approval for medical care granted to the plaintiff.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On September 1, 2004, the Plaintiff joined Sam-gu and carried out the duties of camping at the restaurant of staff members of the U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. L. S. S. S.S.s. L. S. S. S.s.s

B. On Jan. 20, 2006, the Plaintiff was diagnosed as “influencies and slopings, the left-hand fluencies, and the influencies in the face of the water pumps located in Ulsan-gun, U.S., and applied for medical care in accordance with the Industrial Accident Compensation Insurance Act against the Defendant, and on Apr. 18, 2006, the Defendant determined on Apr. 18, 2006 that the said vehicle was not provided by the business owner, but did not constitute occupational accidents on the grounds that the business owner did not have paid oil expenses or maintenance expenses for the said vehicle (hereinafter “instant disposition”).

[Ground for recognition] Unsatisfy

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was at a place where the public transport, such as buses, which the Plaintiff worked, is located in the open space at around 20:40, and thus it was difficult for the Plaintiff to use the car. Nonparty 2, who is the site manager of the restaurant work at the above Bondop, recognized the situation of going out and going out by using the above car, and paid more wages than other day workers. Thus, the injury caused by the traffic accident that occurred during the course of going out and going out by using the above car, shall be deemed an occupational accident.

B. Facts of recognition

(1) The labor contract entered into between the Plaintiff and Sam-gu is from 21:00 to 06:00 the next day. However, there was no employee who drinks from the Endo Scars restaurant to 06:00, and the Plaintiff went to work at around 21:00 for the day of the occurrence of the said accident, and went to work at around 02:30, after completing the work of night-time and going to work at around 00:0 for the day of the said accident, for the night-time for the night-time to provide the married night-time, and then going to work at around 21:0.30. However, there was a change in the number of night-time hours depending on the type of the day provided. Nonparty 2, a person in charge of the operation of the Endos restaurant under the Plaintiff’s employer, was aware of all such circumstances.

(2) The Plaintiff was in fact unable to use a route bus at around 20:40, while the number of night workers in the U.S. S. S. S. S. S. S. are not much, there was no transit bus for commuting to the Plaintiff’s departure and retirement during the time period during which the Plaintiff leaves the port. Accordingly, the Plaintiff was aware that the Plaintiff directly driven a car in the name of Nonparty 1, and went out and drop out, and that the said Nonparty 2 was going out and drop out by the method of driving a car directly by the Plaintiff due to the characteristics of the Plaintiff’s business, and approved the use of the said vehicle as a commuting vehicle in lieu of separate vehicle support.

(3) However, Sam-gu did not provide the Plaintiff with oil expenses or not separately pay the automobile maintenance expenses for the Plaintiff’s moving out and leaving from the above car, and did not take measures such as supervising or controlling the Plaintiff’s moving out and leaving. Meanwhile, the Plaintiff was going to work in Jung-gu’s office by using the national highways of Jungyang-gu, Ulsan National Highway, Ulsan National Highway, under the Jungyang-gu Office, Ulsan National Highway. On the other hand, the Plaintiff was going to work in the Dongdong apartment located in Jung-gu, Ulsan-gu, Ulsan National Highway.

(4) On November 2005, the Plaintiff received basic pay of KRW 675,070, annual allowances of KRW 32,300, annual allowances of KRW 83,980, late-time allowances of KRW 313,310,00, annual allowances of KRW 1,104,660, annual allowances of KRW 675,070, annual allowances of KRW 32,300, late-time allowances of KRW 80,750, and late-time allowances of KRW 316,540, respectively, and stated that the Plaintiff received total amount of KRW 1,104,660, KRW 310, KRW 104, and KRW 1040, KRW 108, KRW 305, May 13, 2005, and KRW 108, KRW 1040, KRW 1040,000, KRW 105,205, May 13, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 8, Eul evidence 1-2, 3, Eul evidence 2, witness non-party 2 and the purport of the whole pleadings

(c) Markets:

(1) For the purpose of Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act, the term "occupational accident" means an accident caused by the worker's performance of duties or ordinary activities incidental thereto under the control and management of the employer based on his/her employment contract with the employer. Although an accident caused by the worker's departure or retirement is closely and unreasonably related to the business of providing his/her labor, it cannot be said that the worker has reserved the choice of the worker, and it cannot be said that the worker has been under the control and management of the ordinary employer because the worker has reserved the means of transportation, such as the worker's use of the means of transportation or other similar means of transportation, to determine whether the worker's removal or retirement is under the control and management of the employer (see, e.g., Supreme Court Decision 2005Du4458, Sept. 29, 2005).

(2) In the instant case, the Plaintiff’s right to manage and use a passenger car or choice of a route was exclusively attached to the Plaintiff with respect to the Plaintiff’s moving-out and leaving-off by using a passenger car in the name of Nonparty 1, a senior mother, and the Ku-gu did not pay fuel expenses or pay vehicle maintenance expenses by separately stating Sam-gu. Thus, it may be deemed that the instant accident was not caused by the employees’ using a means of transportation provided by the business owner or using a similar means of transportation.

However, considering the form of work or the characteristics of the night work, the Plaintiff’s work at a time less than that prescribed in the actual labor contract (from 21:00 to 02:00 or up to 03:00) was approved by the company and received wages of the same level as the day workers, so it can be deemed that the Plaintiff was paid a lot of wages compared to other workers. This can be seen as including a certain amount of daily work expenses out of the wages. Ultimately, the Plaintiff’s work at the head of Ulsan-gun, U.S., the Plaintiff’s work place, and there was no means of public transportation for the Plaintiff to leave the work at a remote time, and thus, it was inevitable to leave the work by using the Plaintiff’s car. Although the Plaintiff’s work at the Dong-gu, Ulsan-gun, U.S., working place, and the Plaintiff’s work at the same time and at the same time, it was difficult to see that the Plaintiff’s work at the above time and at the same time during the above hours of work to leave the above 2000.

3. Conclusion

Therefore, the claim of this case is justified and it is so decided as per Disposition.

Judges Go Jong-ju (Presiding Judge) Kim Jong-sung's teaching resources