209Nu1611 Revocation of Disposition of Non-approval for Medical Care

○ Kim

Seoul ○○-gu ○○○ ○○

Public-service Advocates Kim Hong, Doz., Counsel for defendant-appellant

Korea Labor Welfare Corporation

Yeongdeungpo-gu Seoul Metropolitan Government Yeongdeungpo-gu 2 Korea Labor Welfare Corporation 94-267

1127 Cit Bank Building 17 stories in Nam-gu, Incheon Metropolitan City

Representative President Kim○-○

For a litigation performer, a line:

Seoul Administrative Court Decision 2008Gudan13586 decided May 19, 2009

May 26, 2010

June 23, 2010

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of refusal to grant medical care to the Plaintiff on September 17, 2007 is revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. From October 10, 2006, the Plaintiff worked as a daily worker in the construction site of Section 2, Section 2, apartment construction site (hereinafter “the construction site of this case”) which was subcontracted by △△△ Co., Ltd. from around 10, 2006.

On October 25, 2006: (a) the Plaintiff was at the above construction site on around 25, 2006 to a lodging place located far away from approximately 4-5 km; (b) the Plaintiff, a worker of the same day, who was a worker of the same kind of dump, was on board the dumba, which was driven by dumb, and the Plaintiff was suffering from the injury of 'the alley executive member of the guard dumba who was not able to go beyond the near of the Plaintiff's lodging place (hereinafter referred to as the "accident of this case").

B. On July 11, 2007, the Plaintiff filed an application with the Defendant for medical care by asserting that the instant accident constitutes an occupational accident as a commuting accident, and the Defendant rendered the instant disposition that rejected medical care on September 17, 2007 on the ground that the instant accident does not constitute an occupational accident.

【Ground for Recognition: Evidence No. 1, Evidence No. 2-1, and No. 2-2, and the purport of the whole pleadings】

2. Whether the disposition is lawful;

A. The plaintiff's assertion

위 오토바이는 □□의 작업반장 또는 팀장인 정●●가 위 공사현장의 일용노무자인 이요♧과 원고에게 출 · 퇴근용으로 사용하라고 하면서 제공한 것이고, 원고가 위 오토바이를 타고 퇴근하다가 이 사건 사고가 발생하였으므로, 이 사건 사고는 □□의 지배 · 관리 아래에 있다고 볼 수 있는 퇴근 중에 발생한 업무상 재해에 해당한다. 따라서 이 사건 처분은 위법하다 .

(b) Fact of recognition;

The following facts may be acknowledged in full view of the evidence Nos. 3-2, 8, 3, 4, 6, 7, 10, 12, 5, 13-1, 2, and 13-2 of evidence Nos. 3-2, 8, 3-2, and 3-2 of evidence Nos. 5 and 13-2 of evidence Nos. 1 and the purport of the whole testimony and arguments

1) At the instant construction site, the new debt manager, who is the head of △△ City, was in general in charge of the work, and the head of △△ Group or the head of the team in △△ Group in relation to the toilet temperature work in relation to the above toilet temperature work, which was subcontracted by △△ City.

From October 10, 2006, the Plaintiff came to work at the construction site of this case through the due process of Ebrypty, and upon receiving the direction from the head of the above site, the Plaintiff worked together with the due process of Ebrypty.

△△ paid a daily allowance to the workers of the team, which has been managed by the Blue House of Blue House, and determined it.

The actual tax amount was paid to each worker after deducting 5,000 won per day under the name of introduction fees, etc.

2 ) 정●●는 이 사건 공사현장에서 일하는 화장실 보온작업 관련 근로자를 위하여 위 공사현장에서 약 4 ~ 5km 떨어져 있는 곳에 숙소를 마련하였고, 위 숙소에는 원고가 먼저 들어온 후, 나중에 이♧♧, 심◎◎이 함께 사용하게 되었는데, 위 숙소비용은 정●●가 부담하였다 .

During the work at the above construction site, the Plaintiff was going to walk between the above construction site and the lodging room, and was going to work at the above construction site from 00 am to 18 am. The Plaintiff worked at the above construction site from 00 am to 00 am, and then left to a lodging with other workers at the restaurant located at the construction site of this case.

Madlebalum was decided to work until October 24, 2009, but upon the request of the head of Si/Gun/Gu.

October 26, 2009.

3) In the vicinity of the instant construction site, a large scale of construction works for apartment construction was conducted (Evidence B No. 10), and among the workers working at the instant construction site, a large number of foreigners was living in a lodging place located near the Plaintiff’s lodging place.

At the construction site of this case, the way to go to a lodging house was not packaged (Evidence B No. 4), and in the case of foreign workers, it was not easy to use public transportation. As such, most of the workers in neighboring lodging centers were sent to the construction site using bicycles, sludge, etc.

The construction site of this case was aware that most foreign workers working at the site of this case were present at the accommodation provided by the head of the working group or the head of the team.

4 ) 정●●는 2006. 10. 24. 김포에 가서 위 오토바이 ( 정●●와 같이 근무하였던 중국 국적의 일용노무자가 사용하다가 방치한 무등록 오토바이 ) 를 직접 가지고 온 다음, 2006. 10. 25. 이♧♧에게 원고, 이 등의 출 · 퇴근용으로 이용하라고 하면서 기름이 넣어져 있는 상태로 위 오토바이를 건네주었다 [ 증인 정●●는 이, 심◎◎에게만 이 사건 오토바이를 타도록 하였다고 증언하고 있으나, 심◎◎은 이 사건 사고가 발생한 다음날 현장을 떠나기로 되어 있어 원고를 제외하고 심◎◎에게만 이 사건 오토바이를 타게 할 합리적 이유가 없는 점, 증인 정●●는 사실과 다른 취지의 확인서 ( 을 제8호증의 2 ) 를 작성한 사실이 있는 점, 정●●가 이 사건 사고 발생 전 날 이 사건 현장에서 김포까지 가서 이 사건 오토바이를 가져 온 경위로 볼 때 이 사건 오토바이는 이 사건 숙소에 있는 근로자 전체의 통근을 위하여 제공되었다고 추단되는 점에 비추어, 이를 믿을 수 없다 .

5 ) 원고는 2006. 10. 25. 평소와 마찬가지로 오후 6시경 일을 마치고서 위 공사현장 내 식당에서 정●●, 심◎◎, 이유 등과 식사를 하였다. 원고, 이 및 심◎◎은 식사 후, 원고는 이 사건 공사현장의 북쪽 출입문으로 나가 기다리고, 이♧♧과 심◎◎은 위 오토바이를 타고 이 사건 공사현장 중 차량 통행이 가능한 동쪽 출입문을 돌아 원고를 태워 숙소를 가기로 한 다음, 심◎◎이 차례로 이BB과 원고를 태우고 숙소로 가던 중 이 사건 사고가 발생하였다 ( 피고는 원고가 임의동승하였다는 취지로 주장하나 , 앞서 본 바와 같이 원고가 심◎◎, 이♧♧과 같이 식사를 하였고, 을 제12호증의 기재에 따르면, 원고가 이 사건 공사현장에서 가장 먼저 근무하기 시작하였고, 근무일수도 가장 많은 사실이 인정되고, 심◎◎은 이 사건 사고 다음날 다른 현장으로 떠나게 되어 있었으므로, 저녁 식사를 함께 한 원고, 이DB, 심◎◎ 중 원고를 제외한 나머지 심, 이요요만이 위 오토바이를 타기로 하였다고 보기 어렵다 ) .

C. Determination

1) With respect to a disaster that occurred during departure or retirement, where a worker uses the means of transportation provided by the business owner or where the business owner allows the worker to use such means of transportation (see Supreme Court Decision 2004Du121, Apr. 23, 2004). In appearance, the method of departure or retirement and the selection of the route is deemed to have been entrusted to the worker, and the work was performed during the departure or retirement. There is no room for choice on the method of urgent administrative affairs related to the work before or after the ordinary hours of departure or retirement or on the characteristics of the workplace or on the part of the workplace, it cannot be deemed that it was actually reserved to the worker, and it is closely and indivisible to the extent that it is close to the work (see Supreme Court Decision 2004Du121, Nov. 1, 2004).

Supreme Court Decision 2002Du12298 Decided September 29, 2005; Supreme Court Decision 2005Du4458 Decided September 29, 2005; Supreme Court Decision 2008

3. The Supreme Court Decisions 2006Du2022 Decided April 24, 2008; 2006Du15660 Decided April 24, 2008) and the disaster and business related to the accident that occurred during such departure and retirement have a direct and close internal relationship, and the accident is deemed to have occurred due to the following occupational reasons under the control and management of the business owner (see Supreme Court Decision 2010Du184, Apr. 19, 2010).

In addition, since it is practically impossible to use a means of public transportation or commuting bus for departure and retirement or it is necessary to assume a remarkable physical know-how and burden of daily life, it should be deemed that there is no room for choice by the method of departure and retirement even in the case of departure and retirement of a worker by driving his own urbine (see Supreme Court Decision 2007Du2784, May 28, 2009). In light of the above legal principles, according to the following circumstances acknowledged in light of the above facts, it cannot be deemed that the choice of the means and route at the time of the instant accident was actually reserved to the worker, it is deemed that the accident was under the objective control and management of △△, which is the business owner, or that the accident occurred in the situation where the worker uses the means of transportation provided by the business owner or enables the worker to use the means of transportation equivalent thereto.

1) ① Since the construction site near the instant construction site was a large-scale apartment construction site, the Plaintiff’s accommodation was located far away from about 4 to 5 km away from the construction site, and the road was also packed up to the lodging site. In the case of foreign workers including the Plaintiff, there was difficulty in using public transportation, so there was no possibility of reasonable choice other than going out and going out by the Plaintiff.

② The head of the Working Group, or the head of the team, at the instant construction site, the Plaintiff and foreign workers, including the Plaintiff, have provided the workers living in the Plaintiff’s accommodation with the purpose of night consumption by seeking a lodging at a place near to the maximum extent, and the employees living in the Plaintiff’s accommodation had been the means of transportation up to the construction site of the instant construction site. Since most of the workers at the construction site of the instant construction site were foreigners, it is important for the employees to secure, the △△, which was settled between the cost of night and the cost of care paid to the workers of the Plaintiff, (it can be deemed that the cost of care for 5,000 won per worker who was paid to the workers of the △△ branch, the head of the Working Group, or the head of the team of the team in △△ branch, or the head of the team, was settled among the cost of lodging and the cost of care for each worker of the instant construction site (it can be deemed that it was included in the cost of providing them to

29. Supreme Court Decision 2010Du184 Decided 29.

③ The reason why he provided the Plaintiff with accommodation and means of transportation, and that he provided meals at the restaurant at the construction site of this case is to objectively control and manage the Plaintiff’s accommodation, meal, and method of attendance, and the selection of the route of attendance, which is Chinese workers, and to provide the Plaintiff with convenience of residing, going out, and going out, so that the Plaintiff may continue to work at the construction site of this case (see Supreme Court Decision 2004Du121, Apr. 23, 2004). Therefore, the instant accident that occurred during the Plaintiff’s leaving office constitutes occupational accident.

3. Conclusion

Therefore, the judgment of the court of first instance which dismissed the plaintiff's claim on the ground of its reasoning is unfair, and it is so decided as per Disposition by cancelling the judgment of the court of first instance and accepting the plaintiff's claim.

Judges and equipment of the presiding judge

Judges Lee Jong-tae

Judges Researched Materials