2016Du5414 Revocation of Disposition of Non-approval for Medical Care

Plaintiff

Attorney Yoon In-bok et al., Counsel for defendant-appellant

Korea Labor Welfare Corporation

Busan High Court Decision 2016Nu21107 Decided September 28, 2016

June 10, 2021

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

The grounds of appeal are examined.

1. The ruling of inconsistency with the Constitution and the scope of provisional application

Article 37(1)1(c) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 14933, Oct. 24, 2017; hereinafter “Industrial Accident Compensation Insurance Act”) (hereinafter “former Act”) provides that “an accident that happens during commuting to and from work under the control and management of the business owner, such as the use of a means of transportation provided by the business owner or a means of transportation equivalent thereto, shall be deemed an accident that happens during commuting to and from work, and such accident shall be deemed an occupational accident.” Thus, it did not recognize an accident that happens during commuting to and from work as an ordinary route and method that cannot be deemed under the control and management of the business owner.

In the Constitutional Court Decision 2014Hun-Ba254 Decided September 29, 2016, the Constitutional Court declared that the former provisions of the Act are applied continuously until the legislator amends the principle of equality on the ground that the provisions of the Act violate the principle of equality by discriminating against workers from industrial accident insurance subscribers who are provided by employers or commuting to and from work by means of similar means of transportation, or workers who ordinarily commute to and from work by means of Do newsletter, own means of transportation or means of public transportation, etc. without reasonable grounds (hereinafter referred to as the "Unconformity with the Constitution of the Republic of Korea").

According to the unconstitutionality of the provisions of the former Act, the Constitutional Court’s ruling of inconsistency with the Constitution and the grounds for provisional application of the provisions of the former Act, the order to continue the application of the provisions of the former Act to a certain time even though the Constitutional Court confirmed the unconstitutionality of the provisions of the former Act is due to the need to maintain the minimum legal basis that recognizes commuting accidents as occupational accidents. However, even though commuting accidents are not controlled and managed by the employer under the former Act, it cannot be deemed to continue to maintain the status of infringement of fundamental rights until the time when the legislation to improve the basic rights is implemented.

Therefore, the part of the order to continue the application of the former Act in the decision on inconsistency with the Constitution of the Republic of Korea has an effect only on the part regarding commuting accidents under the control and management of the business owner, such as using means of transportation provided by the business owner or means of transportation equivalent thereto, etc. In other words, the part that does not include "accidents that occur while commuting to and from work by means of helper, own means of transportation or means of public transportation, etc." in the former Act should be deemed to have a status

2. Amendment of the Industrial Accident Insurance Act and retroactive effect of the decision of inconsistency with Constitution;

A. According to the instant decision of inconsistency with the Constitution, the Industrial Accident Insurance Act, amended by Act No. 14933, Oct. 24, 2017, newly established the "accident from commuting to and from work" as a type of occupational accident under Article 37(1)3, and deleted the "accident from work to and from work by ordinary route and method" (hereinafter "new law provision") and the former law provision. Meanwhile, Article 2 of the Addenda to the Industrial Accident Insurance Act (amended by Act No. 14933, Oct. 24, 2017) provides that the new law provision shall apply from the first accident after this Act enters into force (by January 1, 2018).

In the Constitutional Court Decision 2018Hun-Ba218 Decided September 26, 2019, the Constitutional Court declared that the provision of the above supplementary provision is inconsistent with the Constitution on the ground that the failure to apply the new provision retroactively violates the principle of equality, thereby ordering the suspension of its application. Accordingly, the supplementary provision was amended on June 9, 2020, and the new provision of the new law was applied retroactively from the disaster that occurred after September 29, 2016.

B. As long as the Constitutional Court makes a decision of inconsistency with the Constitution and delegates the legislative authority to the legislative authority to revise or abolish the provision of the law constitutionally, the legislative authority’s discretion and the scope of retroactive application and retroactive application depends on the legislative authority in principle. However, considering the purport of the inconsistency with the Constitution as to the provision of the former Act or the specific normative control in the adjudication of inconsistency with the Constitution, at least the relevant case where the decision of inconsistency with the Constitution was made, and the relevant case where the former provisions are pending in the court as the premise of the judgment, even if the application of inconsistency with the Constitution was not made at the time of the inconsistency with the Constitution, the retroactive effect of the inconsistency with the Constitution as to the case where the former provisions are still pending in the court as the premise of the judgment (see, e.g., Supreme Court Decisions 2008Du1885, Sept. 29, 201; 2016Du4797, Jul. 11, 2018).

3. Determination on the instant case

The Plaintiff filed a separate request for the recommendation of unconstitutionality regarding the provision of the former Act in the instant lawsuit seeking the revocation of the disposition of non-approval of medical care as of May 28, 2014 with respect to commuting accidents that occurred on April 14, 2014. However, as the former provision of the Act at the time of the ruling of inconsistency with the Constitution is apparent in the record that the case is pending in the court as the premise of the judgment, it constitutes a case where the retroactive effect of the ruling of inconsistency with the Constitution becomes effective. Accordingly, the relevant provision on the criteria for recognition of occupational accidents under the amended Industrial Accident

Nevertheless, the lower court determined that the Plaintiff’s accident was difficult to be recognized as an occupational accident on the premise that the provisions of the former Act are applied, and the lower judgment was no longer maintained.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Tae-tae, Counsel for the defendant

Justices Cho Jae-chul

Justices Min You-sook

Justices Lee Dong-won