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

Korea Labor Welfare Corporation

Seoul Administrative Court Decision 2010Guhap32570 decided November 25, 2010

August 26, 2011

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition on March 4, 2010 against the Plaintiff’s survivor’s benefits and funeral site pay shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. Disasterr: The Plaintiff’s husband’s husband’s ○○○○ (hereinafter “the deceased”).

(b) Labor relations;

On March 19, 1997, the deceased joined the Dongyang Construction Industry Co., Ltd. (hereinafter “Nonindicted Company”) and from January 18, 2006, the deceased worked for the head of △△△△△△△ in the construction site (hereinafter “the construction site of this case”) performed by the Nonparty Company from January 18, 2006.

(c) Disaster guard;

1) On February 20, 2009, the Deceased: (a) driven by the vehicle (vehicle number omitted); and (b) worked at the construction site of the instant vehicle (hereinafter “instant vehicle”); (c) around 07:47, Jinju-si, Jinju-si (hereinafter “2 omitted); (d) discovered and immediately operated the cular vehicle which was towed due to the preceding traffic accident on the national highway of Jinju-si; (b) but (c) caused an accident by the string of the vehicle and shocking the rear part of the vehicle (hereinafter “the instant accident”), and died at around 08:10 while the vehicle was sent.

2) Private person: pre-explosionr - de facto showe, middle-line shower - intra-explosion, pre-explosionr - Blood thicken

D. The defendant's bereaved family's bereaved family's benefits and funeral site pay disposition (hereinafter "the disposition of this case").

1) Date of disposal: March 4, 2010

2) Ground for site payment

Considering the fact that the instant motor vehicle owned by the Deceased was in exclusive charge of the Deceased, that there was no circumstance to see that the business owner provided, such as commuting to and from work by the East Workers, due to the characteristics of the workplace, there was no allowance for oil expenses and other expenses in the company separately for the Deceased who must commute to and work within a long distance from the workplace, and that the actual attendance situation on the day of death cannot be deemed as having a close and poor relationship with the business to the extent that it is close to the workplace according to social norms, and that it is the general attendance situation, the instant accident cannot be deemed to have occurred due to occupational reasons under the control and management

[Ground of recognition] Unsatisfy, entry of Gap 1 to 10 evidence, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The construction site of this case is located in an area where traffic is difficult, and thus, it was difficult for the non-party company to take care of the situation of leaving or leaving the construction site. The non-party company did not operate a separate transit vehicle for leaving or leaving the construction site. Thus, there was no room for other choice except for leaving or leaving the construction site using the instant vehicle owned by it. Therefore, it cannot be deemed that the method and route of leaving the construction site was reserved to the deceased. In other words, the deceased's death is an occupational accident because the accident in this case occurred during the time of leaving the construction site under the control and management of the non-party company. The disposition of this case on different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) When the deceased had worked at the construction site of this case, he was supported by the non-party company with two wife and children as well as the head of the non-party company, and moved into the Guro-gu Seoul Metropolitan Government Guro-gu Gakdong-dong Gakdong-dong Gakdong-dong Gakdong-dong apartment (hereinafter “the apartment of this case”) and resided therein, and he was driving the instant automobile, and went out and drop out to the construction site of this case.

2) The Deceased worked at the construction site of this case from January 18, 2006 to the head of △△△△△△△, and the ordinary working hours were 7:0 to 18:00, and the contents of the work site were visiting the work site and conducting safety inspection and attending the office.

3) In line with the time to work at the deceased’s residence, there was no means of public transportation operated at the construction site of this case. Furthermore, due to the characteristics of the construction site of this case, there was no means of public transportation directly coming from the deceased’s residence to the construction site. Accordingly, eight out of the total 13 workers at the construction site of this case, eight out of the total 13 workers at the construction site of this case used accommodation prepared at the site of the non-party company and five others including the

4) The non-party company did not separately provide a transit vehicle, and did not pay to the deceased an amount of money in the name of travel or retirement expenses or oil expenses. However, the non-party company has paid KRW 280,00 per month for the relationship between the deceased and his/her work at the construction site.

5) On the day immediately before the instant accident occurred, the Deceased was 22:00 of snow removal work due to heavy snow, and the instant accident occurred while driving the instant vehicle on the following day and working as a usual route at the construction site.

[Ground of recognition] Facts without dispute, Gap 11, 12, 14, Eul 1, and the purport of the whole pleadings

D. Determination

1) With respect to a disaster that occurred during departure or retirement, in cases where the method of transportation provided by an employer, including where an employee uses the means of transportation or where an employer allows an employee to use the means of transportation corresponding thereto, appears to have been entrusted to the employee in external shape, but the selection of the route is not likely to choose the method of transportation or retirement due to the characteristics of the work or the characteristics of the work place, etc., and it cannot be deemed that it actually been reserved to the employee, and where it is deemed that there is a close and close relationship between the disaster and the work that occurred during such departure or retirement, and such disaster is deemed to have occurred due to an occupational reason under the control and management of the employer (see, e.g., Supreme Court Decisions 2010Du184, Apr. 29, 2010; 2006Du15660, Apr. 24, 2008).

2) In full view of the following circumstances revealed by the facts of recognition and the purport of the entire pleading in light of the above legal principles, the instant accident occurred during the deceased’s work process cannot be deemed as having been actually reserved against the deceased. Therefore, it is reasonable to view that the instant accident occurred during the work as an occupational accident under the objective control and management of the non-party company on the ground that there is a direct and close relationship between the work and the non-party company’s objective relationship (Article 29 of the Enforcement Decree of the Industrial Accident Compensation Insurance Act is merely an accident that occurred during the work out or out of the work using a means of transportation provided by the business owner under Article 37(1)1(c) of the Industrial Accident Compensation Insurance Act or a similar means of transportation, and therefore, it cannot be deemed that the accident that occurred during the work out or out of the work does not fall under the category of “accident that occurred under the control and management of the business owner.”

A) In light of the geographical location at the construction site of this case, there was no means of public transportation, such as buses travelling on the construction site of this case, and there was no reason for the deceased to work at the construction site of this case by 07:00, the deceased to work at the construction site of this case, and there was no reason to expect the deceased to commute to and from work by using means of public transportation, such as buses, as the conditions for

B) Since the Deceased worked at night beyond the retirement hours prior to the date of the instant accident, it is deemed that the Deceased worked late more than the normal attendance hours on the day of the instant accident, and it cannot be deemed that the Deceased worked at a different time than the normal attendance hours on the day of the instant accident and the instant accident occurred.

C) In light of the deceased’s receipt of support from the non-party company to work at the construction site of this case, it was difficult to expect the deceased to use his accommodation at the construction site of this case, in view of the deceased’s living in the apartment site of this case and commuting to and from the construction site of this case. From the standpoint of the non-party company that provided the director’s expenses, the deceased was aware that he was living in the apartment site of this case while living in the apartment site of this case and

D) The instant accident appears to have occurred while the Deceased worked for a reasonable route to which he would normally work using the instant vehicle.

3) Therefore, the deceased’s death constitutes occupational accidents, and thus, the instant disposition taken from another point of view is unlawful.

3. Conclusion

Thus, the plaintiff's claim shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is unfair on the grounds of its conclusion, so it is revoked, and it is so decided as per Disposition by the cancellation of the disposition of this case.

[Attachment Form 5]

Judges Kim Jae-sik (Presiding Judge)