Whether Article 29 (1) 1 (c) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act explicitly prescribes “accidents that occurred during commuting to and from work under the control and management of the employer” (affirmative)

In full view of the contents, form, and legislative purport of Article 37(1)1(c), (f), and (3) of the Industrial Accident Compensation Insurance Act (hereinafter “Act”) and Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act (hereinafter “Enforcement Decree”), Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act provides that the accident that occurred during commuting to and from work satisfying all the requirements of each subparagraph constitutes “accident that occurs during commuting to and from work under the control and management of an employer, such as the use of a means of transportation provided by an employer or any similar means of transportation, etc.” under Article 37(1)1(c) of the Act, Article 37(1)1(c) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act (hereinafter “the Act”), it cannot be deemed that all other accidents

Article 37 (1) 1 (c), (f) and (3) of the Industrial Accident Compensation Insurance Act, Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act

Plaintiff (Attorney Lee In-bok, Counsel for plaintiff-appellant)

Korea Labor Welfare Corporation

Seoul High Court Decision 2011Nu909 decided October 21, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are also examined.

1. Article 37(1) of the Industrial Accident Compensation Insurance Act (hereinafter “Act”) provides that “An employee shall be deemed an occupational accident if an injury, disease or disability occurs or dies due to any of the following causes: Provided, That this shall not apply where there is no proximate causal relation between his/her work and accident: Provided, That the same shall not apply where an employee has caused an accident from his/her workplace under the control and management of the employer, such as using a means of transportation provided by the employer or a means of transportation equivalent thereto, etc.” In addition, Article 37(3) of the Act provides that “an accident that happens in connection with other work” in subparagraph (f) of the same Article provides that “An accident that occurs during his/her workplace shall be determined by Presidential Decree” and Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act (hereinafter “Enforcement Decree”) provides that “An employee shall not be deemed to have provided his/her exclusive means of transportation or means of transportation to and from his/her workplace:

In full view of the contents, form, and legislative intent of the above provisions, it appears that Article 29 of the Enforcement Decree stipulates that an accident that occurred while commuting to or from work meeting all the requirements of each subparagraph falls under “accident that occurred during commuting to or from work under the control and management of an employer, such as using a means of transportation provided by an employer or a means of transportation equivalent thereto, etc.,” and does not stipulate that all accidents that occur during commuting to or from work are excluded from those subject to occupational accidents. Therefore, it cannot be seen as a provision that excludes all accidents that occur during commuting to or from work. Therefore, the method and route of commuting to or from work cannot be seen as having been assigned to the employee. However, there is no room to choose the method of commuting to or from work due to an urgent handling of affairs during commuting to or after normal commuting to or after work hours or the characteristics of the workplace, etc., and it cannot be deemed that it actually is closely related to or closely related to the employee’s workplace by 200 percent (see, e.g., Supreme Court Decision 2008Du168.

2. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the adopted evidence, and determined that the deceased's death constitutes an occupational accident on the ground that the accident of this case occurred while the deceased, who is the husband of this case, was driving a motor vehicle owned by him and worked at the construction site of this case, cannot be deemed as actually reserved to the deceased on the method of commuting and the selection of the route, etc., and that there was a direct and close internal relationship between his work and the work

In light of the evidence duly admitted, the judgment of the court below is based on the above legal principles. In so doing, it did not err by misapprehending the legal principles on Article 37 (1) 1 (c) of the Act and Article 29 of the Enforcement Decree, or by misapprehending the legal principles on the determination of whether an accident occurred due to an occupational reason under the control and management of the employer, thereby affecting the conclusion of the judgment.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)