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(영문) 서울행정법원 2004. 11. 10. 선고 2003구합29286 판결
[유족급여등부지급처분취소][미간행]
Plaintiff

Plaintiff

Defendant

Korea Labor Welfare Corporation

Conclusion of Pleadings

October 13, 2004

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

On April 23, 2002, the defendant revoked the disposition of bereaved family's benefits and funeral site pay to the plaintiff.

Reasons

1. Details of the disposition;

A. The Plaintiff’s husband Nonparty 1 (hereinafter “the deceased”).

① On December 1, 1998, Nonparty 2 Co., Ltd. (hereinafter referred to as “Nonindicted Company 2”) who is located in the business of making a statement about the sports-based conference (number omitted) on December 1, 199, shall be in charge of the maintenance and repair of the company as its technical employee.

(2) Death on March 9, 2002, at Ethama hospital located in Eththa-dong 467-2, Leecheon-si, Leecheon-si on March 9, 2002, with the l9:20 Etha-si 467-2, the upper left-hand side of the middle-line event, such as the lupage lupage lupage lupe, etc.

B. Claim for compensation for survivors and funeral expenses to the defendant on April 10, 2002 on the ground that the death of the deceased constitutes occupational accidents.

C. The Defendant, on April 23, 2002, died of a traffic accident that occurred while the Deceased was on duty using a passenger car owned by the Deceased, and thus, the instant disposition rejecting compensation for survivors and funeral expenses to the Plaintiff on the ground that the deceased’s death does not constitute an occupational accident.

(d) Procedures of the previous trial; and

① The Plaintiff, July 8, 2002, a request for review

Defendant, August 23, 2002 (Dismissal of Request for Review)

② On December 17, 2003, the Plaintiff, and the Plaintiff’s request for reexamination.

Industrial Accident Compensation Insurance Examination Committee, February 18, 2003 (Dismissal of Request for Review)

[Ground of recognition] Facts without dispute, entry of Gap 5 evidence, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Deceased did not provide his employees with a vehicle for commuting to work at the workplace, and there was any inconvenience to leave the vehicle from the house to the workplace and to use public means of transportation, and thus, it was inevitable to leave the vehicle by using the passenger vehicle owned by the Deceased. Before the occurrence of the traffic accident, the Deceased instructed Nonparty 4, the representative of Nonparty 2, who is the representative of Nonparty 4, to work at the workplace. The Deceased purchased and transported the necessary goods of the company while working at the workplace under the instruction of Nonparty 4, and the said vehicle was allowed to use the said vehicle for business travel. The Deceased’s death was an occupational accident, and therefore, the instant disposition was unlawful.

(b) Related statutes;

[Industrial Accident Compensation Insurance]

Article 4 (Definitions) The definitions of terms used in this Act shall be as follows:

1. the term “occupational accident” means any injury, disease, physical disability or death of a worker which is caused by an occupational reason. In this case, the criteria for recognition of occupational accident shall be determined by the Ordinance of the Ministry of Labor;

[Enforcement Rule of the Industrial Accident Compensation Insurance Act]

Article 35 (Accidents During Work Hours)

(4) Where a worker is killed or wounded due to an accident that happens in the course of leaving or leaving office and falls under any of the following requirements, such accident shall be deemed an occupational accident: Provided, That this shall not apply where it is evident that there is no proximate causal relation between

1. An accident shall occur during the use of the means of transport provided by the business owner for commuting to and from work of his/her employees;

2. The worker's right to manage and use the means of transport provided by the business owner shall not be exclusively responsible for the management and use thereof;

C. Facts not recognized as recognized

(1) At around 08:10 on March 9, 2002, the deceased worked in the Gyeonggi-do (vehicle number omitted) No. EXA car owned by the deceased, and was faced with a traffic accident where Nonparty 3 was shocked by the left-hand shocker and the driver’s seat even on the vehicle driven by Nonparty 3 at the 2nd intersection in the Maba-Eup, Maban-si. The fact that the deceased died as above due to the above accident is not disputed between the parties, and in full view of the purport of the arguments as a whole, the deceased’s working hours were determined from 08:30 to 18:00 (on Saturdays, up to 15:00). After the deceased was employed by Nonparty 2, it can be acknowledged that the deceased was on his own by driving his own car until the above traffic accident occurred.

(2) There is no evidence to prove that the deceased was instructed by Nonparty 4 to purchase and transport goods necessary for the company at the time of the occurrence of the traffic accident, and to perform his duties.

D. Determination

(1) Article 35(4) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act provides that where an employee is killed or wounded due to an accident that occurred while his/her employee is going out or out of work, the business owner shall be deemed to be an occupational accident only if the accident occurred during the use of the means of transportation provided by his/her employees for their withdrawal or retirement and if the business owner’s right to manage and use the means of transportation provided by the business owner is not exclusively responsible

(2) Return to the instant case and first priority, the said traffic accident cannot be deemed an accident that occurred during the use of the means of transport provided by the business owner for the purpose of going out and going out. Furthermore, for any reason, it is insufficient to recognize it as such only on the basis of the following: (a) evidence Nos. 7, A10, A12, A13-1, and 2; (b) evidence Nos. 5, Nonparty 6, and Nonparty 2’s testimony; and (c) some fact-finding results on Nonparty 2’s non-party company, and there is no other evidence to acknowledge it otherwise.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim of this case seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.

Judge Han-gu (Presiding Judge)

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