[1] The case where it can be deemed that a disaster that occurred during the period of departure or retirement has occurred due to an occupational reason under the control and management of the business owner

[2] In a case where an employee who driven a vehicle provided by a human resources company and worked at the construction site of a construction company suffered a traffic accident, the case holding that it is sufficient to deem that the method and route of attendance at the time of the accident was under the objective control and management of the construction company, which is

[1] With respect to a disaster that occurred during departure or retirement, in cases where it is judged that the method of transportation provided by an employer was used by an employee or a business owner was used by an employee, and that the method of departure or retirement and the selection of the route was entrusted to an employee, but there is no room for choice of the method of departure or retirement due to an urgent handling of affairs related to the work before or after the ordinary hours of departure or retirement or due to the characteristics of the workplace or other characteristics of the work, it cannot be deemed that it was reserved to an employee, and that there is a close and close relationship between the disaster and the work that occurred during such departure or retirement and that there is a direct and close internal relationship between the disaster and the work that occurred during the normal hours of departure or retirement and that the disaster occurred due to an occupational reason under the control and management of the business owner.

[2] In a case where an employee who operated a vehicle provided by a human resources company and worked at the construction site of a construction company suffered a traffic accident, the case holding that it is sufficient to view that the above vehicle is equivalent to the means of transportation provided by the construction company, and that even if an employee worked at the construction site after changing the construction site rather than daily work at the construction site of the construction company, it is difficult to regard the construction company's control and management of the work site on the day of the accident as the reason for denying the management of the construction company's work site on the day of the accident, and that there is no possibility to expect any reasonable choice other than the work site using the above vehicle at the time of the accident, and that there is sufficient room to view that

[1] Article 5 subparagraph 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8694 of Dec. 14, 2007) / [2] Article 5 subparagraph 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8694 of Dec. 14, 2007)

[1] Supreme Court Decision 2002Du12298 Decided November 25, 2004, Supreme Court Decision 2005Du4458 Decided September 29, 2005, Supreme Court Decision 2006Du2022 Decided March 27, 2008, Supreme Court Decision 2006Du15660 Decided April 24, 2008

Plaintiff (Attorney Han-soo et al., Counsel for plaintiff-appellee)

Korea Labor Welfare Corporation

Seoul High Court Decision 2009Nu14400 decided December 1, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

The term "occupational accident" under Article 5 subparagraph 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8694 of Dec. 14, 2007; hereinafter the "Industrial Accident Insurance Act") means an accident caused by an occupational accident resulting from the management and operation of the relevant employee or the ordinary activities incidental thereto under the employer's control and management based on an employment contract between the employee and the employer. Generally, even if the employment or retirement of a worker is closely and unreasonably related to the business of providing labor, as long as the choice of the employee is reserved by the method and route of such employment or retirement, the accident that occurred during the employment or retirement of the employee's choice can not be a occupational accident, on the ground that the choice of the employee is ordinary in terms of the method and route of employment or retirement, but otherwise, if it can be deemed that the process of employment or retirement of a worker is under the employer's control and management, it may also be an occupational accident that occurred during the employment or retirement (see, e.g., Supreme Court en banc Decision 2007Du5275, Sept. 28, 2007).

In relation to a disaster that occurred during departure or retirement, where an employee uses a means of transportation provided by an employer or a business owner allows the employee to use a means of transportation equivalent thereto (see Supreme Court Decisions 2004Du121, Apr. 23, 2004; 2004Du121, Apr. 25, 2004; 2005Du28465, Nov. 25, 2004; 200Du2685, Nov. 29, 2005; 206Du2065, Nov. 26, 208; 2008Du2065, Nov. 29, 200, etc.).

According to the reasoning of the judgment of the court of first instance as cited by the court below and the reasoning of the judgment below, the first instance court, based on the evidence adopted by the court below, decided that the first instance court, which was a subcontractor of Hansung Construction,, would receive skilled human resources through a skilled human resources recruitment company while performing part of the construction of the Eunpyeong-gun's Gamar Training Institute under a subcontract, and that the said human resources recruitment company would provide means for daily workers to leave and leave work, and that the said human resources recruitment company would additionally pay KRW 40,000 per day for daily transportation in addition to daily daily daily transportation expenses. From June 1, 2007, workers including the plaintiff were gathered to the office of the above human resources recruitment company and worked at the above new construction site using the salary class of this case provided by the above company, and the plaintiff would not work at the construction site of this case, but work at the construction site of this case on October 8, 207, and on November 5, 2007, the plaintiff did not directly retire from the construction site of this case.

However, according to the facts and records duly established by the court below, the plaintiff, who was residing in Yeongdeungpo-gu Seoul, should work at the construction site of this case, which is located in Gyeonggi-gu, Gyeonggi-gu until seven hours of the accident. Since it is difficult to work at the work site by means of public transportation, such as buses, etc., it seems that the vehicle of this case was not inevitable to use the vehicle of this case. It seems that, despite being aware of such circumstances, Green Construction would have paid transportation expenses in addition to the vehicle of this case, instead of directly providing daily workers with means of transportation for daily workers, it would have provided the vehicle of this case by means of the means of dispatch and retirement of workers. At the time of the accident, the plaintiff could have known the circumstances such as the fact that the plaintiff, who was living in Yeongdeungpo-gu, had daily workers aboard the vehicle of this case at the time of the accident, started from the office of the

Examining the facts acknowledged by the court below and each of the above circumstances in light of the legal principles as seen earlier, it can be deemed that the instant garage is equivalent to the means of transport provided by Green Construction. The Plaintiff did not work daily at the construction site of Green Construction at the instant construction site, and even if the Plaintiff frequently changed the construction site, it is difficult to regard it as a reason to deny the control and management of green construction for the work site on the day of the instant accident, and it is difficult to regard it as a ground for denying the control and management of green construction for the work site on the day of the instant accident. In addition, there are many cases where the Plaintiff is no possibility to expect any reasonable choice other than the work at which he worked at the instant bus, and barring special circumstances, such as that the Plaintiff cannot be deemed as having been actually reserved to the Plaintiff at the time of the instant accident, and that there is sufficient room to deem that the Plaintiff was an objective control and management of green construction, a business owner, at the time of the instant accident.

Nevertheless, the lower court’s determination that the instant accident was not an occupational accident under the Industrial Accident Insurance Act by failing to exhaust all necessary deliberations as to the existence of exceptional circumstances necessary for the determination of an occupational accident in the course of departure and retirement as seen above, is erroneous by misapprehending the legal doctrine on an occupational accident under the Industrial Accident Insurance Act, which led to failure to exhaust all necessary deliberations.

The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)