[1] Whether an occupational accident under Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act can be deemed as a case where a worker is injured or killed due to an accident that occurred in the course of commuting by the ordinary route and method (affirmative)

[2] The case holding that it constitutes an occupational accident under Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act in case where a worker was injured due to a traffic accident while serving in one's own car by waiting for another worker in response to the car pool book of the business owner

[1] Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act defines the "occupational accident" as one of the occupational accidents, and does not stipulate that the "occupational accident" means the injury, disease, physical disability, or death of an employee due to his/her occupational reason, and does not mean that the occupational accident of an employee who uses the safe and convenient means of transportation provided by the employer in relation to the commuting under the control and management of the employer is considered to be the case under the control and management of the employer, and it is unreasonable not to recognize the occupational accident of an employee who uses the safe and convenient means of transportation against his/her occupational accident in light of the case under the control and management of the employer. Since the industrial accident compensation insurance system has the characteristics of social security to guarantee the employee's right to life, it is necessary to protect the occupational accident as one of the occupational accidents in addition to the special damages system of strict liability, it is necessary to consider the relationship between the occupational accident and the commuting accident without legislation, uniform interpretation of the law, equity application of the law, etc., and it is possible to interpret the occupational accident as one of the general public officials and employees's.

[2] The case holding that the above injury constitutes an occupational accident under Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act on the grounds that, in case where a worker was injured due to a traffic accident while attending his/her own car by waiting for another worker in accordance with the car pool book of the business owner, since the vehicle was a means of transportation corresponding to the vehicle offered to the worker's moving out and leaving from the workplace at least when the vehicle was set out and left from the workplace, and the right to use and manage the vehicle at the time of moving out and leaving from the workplace belongs to the business owner rather than exclusively belonging to the employee, since the worker was under the control and management of the business owner.

[1] Article 4 subparag. 1 of the Industrial Accident Compensation Insurance Act, Article 35(4) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act, Article 25 of the Public Officials Pension Act, Article 14 of the Enforcement Rule of the Public Officials Pension Act / [2] Article 4 subparag. 1 of the Industrial Accident Compensation Insurance Act, Article 35(4)

[1] Supreme Court Decision 93Nu24155 delivered on June 14, 1994 (Gong1994Ha, 1976) Supreme Court Decision 94Nu15523 delivered on March 14, 1995 (Gong195Sang, 1638)

[Defendant-Appellee] Defendant 1 and 2 others

Korea Labor Welfare Corporation

May 24, 2006

1. The defendant's disposition of non-approval of medical care rendered to the plaintiff on May 9, 2005 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On February 2, 2005, the Plaintiff worked for the Dongjin Textiles Co., Ltd. (hereinafter “Dongjin Textiles”). On February 2, 2005, Nonparty 1, an employee of Dong Jin Textiles, was on board a car (automobile registration number omitted) and was working for night duty, and she gets off a dog (one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-one-way-one-one-one-one-one-way-one-one-one-way-one-one-one-way-one-one-way-one-one-way-one-one-way-one-way-person, Busan-gun, while driving and working for his own car at night at night. The accident (hereinafter “instant accident”) suffers from the other-party 1 on the spot, and the Plaintiff suffers from the accident (hereinafter “the instant accident”) No. 4-5-one-7-one-one-one-one.

B. On April 11, 2005, the Plaintiff applied for medical care on the ground that the instant injury to the Defendant constituted occupational accident. However, on May 9, 2005, the Defendant applied for medical care on the ground that the Plaintiff did not fall under the work hours under Article 4 of the Industrial Accident Compensation Insurance Act and Article 35(4) of the Enforcement Rule thereof, and the Defendant did not approve medical care on the ground that the Plaintiff did not fall under the work hours beyond the work hours under Article 4 of the Industrial Accident Compensation Insurance Act and Article 35(4) of the Enforcement Rule.

[Grounds for recognition] The descriptions of Gap 1, 2, Gap 3-1, 2, 1, 2, and 4

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The case of injury or death caused by an accident that occurred while going out of the military route and in a normal way constitutes “occupational accident” under Article 4 subparag. 1 of the Industrial Accident Compensation Insurance Act. However, the Plaintiff suffered from the instant accident that occurred while going out of the military by normal route and method, and thus, the instant accident constitutes occupational accident and the Defendant’s disposition that did not regard the instant accident as an occupational accident is unlawful.

(2) If the Defendant’s disposition that did not recognize the instant accident as an occupational accident is unlawful, since it did not entirely withhold the Plaintiff the method and route of departure and retirement, or the right to manage and use a vehicle, but the process of going out and going out by a passenger including the Plaintiff is under the control and management of the business owner, it constitutes an occupational accident.

B. Relevant statutes

Industrial Accident Compensation Insurance Act

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 caused by an occupational reason. In such cases, the criteria for recognition of occupational accident shall be determined by Ordinance of the Ministry of Labor;

2, 3 (Omission)

Enforcement Regulations of the Industrial Accident Compensation Insurance Act

Article 35 (Accidents during Work Hours) (1) to (3)

(4) Where any worker is killed or wounded due to an accident that happens in the course of leaving or leaving office and the following requirements are met, 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 his/her

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

2. No worker shall have exclusive responsibility for the management and use of the means of transport provided by the business owner;

Public Officials Pension Act

Article 25 (Benefits) Short-term benefits under Article 34 shall be paid for any disease, injury and accident caused by the public official's official duty, and long-term benefits under Article 42 shall be paid to the retirement, disability and death of public officials.

Enforcement Regulations of the Public Officials Pension Act

Article 14 (Bodily Injury, Death, etc. Resulting from Accidents During Withdrawal) Where a public official leaves or leaves his/her service in a normal way and in a normal way, or where he/she suffers an injury or dies due to a traffic accident, drilling accident, or other accidents that occur while leaving or leaving a forest, such injury or death shall be deemed an injury or death

C. Facts of recognition

(1) On February 24, 1997, the Plaintiff entered a production management position for the copper Textiles, and worked as a field manager in a factory (hereinafter “instant factory”) located in the Busan-gun’s Articles of Incorporation 940-29 (hereinafter “instant factory”) and has been in charge of the duties as three instructors with other parks.

(2) The instant plant is located in the plane Dog-gun’s articles of incorporation, the outer area of Busan Metropolitan City, and the said Japan belongs to the Gyeongnam-do in 1995, and is located in the area of the Corporation that was incorporated into Busan Metropolitan City in 1995 and was created by relocating industrial facilities of Busan Metropolitan City, and its surrounding areas did not have a residential complex, and most employees except the number of persons residing in a dormitory are going out and going out by using the vehicle.

In the city of Busan, a bus that can go through at one time to the near of the factory of this case is 37 times, and the bus that must go at two times is 2, and the bus No. 37 is operated for one hour. The first vehicle is 06:15, and the stop is 22:15, and workers cannot get off and leave the taxi unless they get off the bus.

(3) Examining the current status of the departure and retirement of the factory employees of the instant case, there are 18 persons using car pool (a car accompanied by a car), 15 persons using private cars, 25 persons living in a dormitory, and 3 public transportation users, 3 persons leaving a Do and 3 persons leaving a Do.

From among the employees of the factory of this case, A is serving three times of work, from 07:0 to 14:00, from 14:00 to 22:00, from 22:00, and from 22:00 to 07:00 on the following day.

(4) While, from around 192 to around 1999, Dongjin Textiles operated 12 passengers shut down for the instant factory workers for the purpose of moving out and leaving the country, it only has one way of operation with no way to live by the employees, and as a result, the number of employees operating his/her own car has decreased due to the increase in the number of employees operating his/her own car, the bus operation was suspended, and no particular measure was taken for the moving out and leaving of the employees after the suspension of the operation of the shuttle bus.

Since most workers of the plant in this case were suffering from big inconvenience due to the company's geographical conditions, difficulties in using public transportation under the three-dimensional work system, suspension of operation of shuttle buses, etc., workers began voluntarily in the first place, but the dust fiber was also far away from the dwelling of workers and the factory in this case after the suspension of operation of shuttle buses, and workers have to go out and leave when the public transportation was sent out due to the three-dimensional work, so it is difficult for workers to go out and leave the public transportation, while recommending workers to go out and leave the public transportation, one oil station in the vicinity of the company is designated by the company and put in oil in the company.

If two or more workers report to the head of the factory that he/she will leave a car pool to the head of the factory, he/she supported the car pool if it is confirmed that he/she is a car pool after examining whether he/she is subject to the car pool, and among the factory workers of this case, he/she did not fully provide oil ticket, oil ticket, and other subsidies for the maintenance of the car.

At the time of the accident, the factory workers of this case operated a car pool with four ordinary vehicles at the time of the accident, and the total of 13 persons used a car pool.

In addition, if a worker is involved in a car pool when organizing a work group, he or she is working in the same group as a substitute.

(5) In order to work in the public transport, the Plaintiff was required to leave the bus three times, and in particular, it was practically difficult to select other means of attendance or route in addition to using the shortest distance road at one’s own car because it was required to work in the C at the night at the latest for three-dimensional work, and since Nonparty 1 and his wife are similar to the Plaintiff, it was practically impossible to leave and leave without a car pool.

(6) Nonparty 2, who was living in the Gan-gun of Busan, was 3 months in 198, and Nonparty 3, who was living in the Busan Shipping Daegu, was 1998 to 2000, and Nonparty 4, from September 200 to March 2002, was able to use the Plaintiff’s vehicle from September 200 to March 202, and all these were working in the same Article as the Plaintiff.

The plaintiff was living in the house of the non-party 1, who was living in Busan Shipping Daegu 2 Dong-dong (Sab omitted), and did not go once from the beginning of the Dongjin Fiberg's membership to the day of the accident in this case, and went out and went out as the non-party 1, and the non-party 1 also worked in the same workplace as the plaintiff.

(7) The Plaintiff participated in the car pool in accordance with the policy of the copper Textiles, and thus, it is not allowed to change the method of attendance due to the use of public transportation, etc. as necessary. Since the Plaintiff was organized in the same Article with the employees belonging to the car pool, he/she could not choose the way of leaving and leaving the car pool in mind.

The plaintiff has repeated his/her departure and retirement without any omission for the last eight years according to the time and route set according to the place of residence of the club worker using car pool, the hours of service under the three comparisons, etc.

On the day of the instant accident, the Plaintiff suffered the instant accident on the way in which the Plaintiff worked for a house at ordinary times at the same time as that for night duty starting from 22:00 on the day of the instant accident, and the dwelling used by the Plaintiff and the company to work for the shortest distance going out and going out of the company.

[Grounds for recognition] Gap's evidence 1, 7, Eul's evidence 1, 2, and 3, each of Gap's evidence 1-10, each of Gap's evidence 6-1 and 10, each of the fact-finding for Dongjin Textiles Co., Ltd, the purport of the whole pleadings

D. Meaning of the commuting accident and view as to whether the commuting accident constitutes occupational accident

(1) The meaning of the commuting accident

Today, as the distance of the commuting path and the increase in the traffic accident rate increase, there is an increase in the number of workers suffering from accidents during the commuting to the commuting. The number of accidents during the commuting to ordinary workers is faced with the risks of these accidents at all times as an essential act for the work to be performed, and there are many cases where workers cannot avoid such accidents even at any time. As such, the situation where workers are going to go to work in relation to the provision of labor, and the situation where workers are going to work in the commuting to the workplace through the normal route or method is a common accident.

(2) Opinion of the Honorary Professors of the Hanyang University

(A) The requirements of occupational accidents are not limited to the acts performed under the direct command and order of the employer, and they are naturally included in the act for the purpose of running and leaving office inevitably incidental to the work, so it can be recognized as occupational accidents under the Industrial Accident Compensation Insurance Act, foreign legislation is the same, and most scholars in Korea are the same position.

(B) The criteria for recognition of the Supreme Court on occupational accidents under the Industrial Accident Compensation Insurance Act are recognized as occupational accidents for workers using convenient and safe means of transportation provided by business operators. On the other hand, workers using public transportation more protected by recognizing them as occupational accidents. Article 35(4) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act discriminates against workers using public transportation. The meaning of “the provision by business owners” under Article 35(4) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act may lead to unstable legal life that flows out by judgment, which is defined by the business owners’ intention, thereby violating the principle

(C) In the case of public officials, recognizing the commuting accidents as an occupational accident and not recognizing them as an occupational accident in the case of ordinary workers is unfair to conduct different evaluations on the same factual act. In the case of public officials, it is unreasonable to treat different public officials and ordinary workers differently, since the payment of contributions is not based on the payment of certain contributions, but on the basis of the judgment of occupational accidents, the payment of contributions cannot be the basis of rational discrimination since the State or local governments are fully responsible for the expenses incurred in the occupational accidents, and therefore, the Supreme Court’s judgment that “an accident during preparation or extension for public duties” with respect to the withdrawal or retirement of public officials can be the basis for recognizing the withdrawal or retirement of ordinary workers as an occupational accident.

(D) In the case of Seo-gu, since the 1920s, the ILO decided to recognize an accident during the departure and retirement as an occupational accident, and the ILO decided to treat an accident during the departure and retirement in the same manner as an occupational accident through the Occupational Accident Compensation Convention and recommendations in 1964, and the European Free Landing State ( Germany, France, etc.) particularly protects the commuting accident by including it in the social security system, and the Anglo-American legal system (U.S., etc.) protects it through judicial precedents on the basis of the principle of equity. In the case of Japan, it protects the accident during the departure and retirement as a special protective commuting system under Article 7(1)2 of the Labor Standards Act.

(3) Opinion of the doctoral degree of personal data of the Korea Labor Institute

(A) The Industrial Accident Compensation Insurance Act has a preventive function to provide the economic incentives for the prevention of industrial accidents by granting the compensatory function for prompt and fair compensation to the victimized workers and the responsibility to the employer for industrial accidents. The Supreme Court’s precedents are reasonable in light of both the compensatory function and preventive function.

(B) A commuting is closely related to the provision of labor, not the provision of labor, but the provision of labor itself. Even if an employer is liable to an employer for an accident occurred in transit, there is no way that the employer actually reduces the risks of commuting to the area of the individual's control, and the acceptance of risks and compensation for commuting to the area of the individual's control can be performed by private insurance and actually performed, the Supreme Court's precedent takes due account of the preventive functions of the Industrial Accident Compensation Insurance Act.

(C) In the case of Japan, part of the cost of the commuting accident is borne by the employee (the employee at the time of the medical care benefit) and the insurance premium of 1/100 is uniformly imposed on all enterprises. In the case of Germany, the frequency of accidents caused by the commuting accident is not considered in calculating the insurance premium of each individual workplace, and in the case of France, the insurance premium rate for the general industrial accident and the insurance premium rate for the commuting accident is set up for the same commuting accident in all enterprises.

(D) In order to recognize a commuting accident as an occupational accident, it is necessary to reach an agreement on who is to bear the expenses for the commuting accident, to reorganize the industrial accident insurance premium settlement system in consideration of the finances of the industrial accident insurance, and to require reasonable adjustment under the Guarantee of Automobile Accident Compensation Act, etc., and to take into account the establishment effect of private insurance, moral hazard issues, etc. Therefore, legislative resolution is desirable.

(E) In the event of an occupational accident, it can be deemed that the State and a local government bear the cost, but the local government actually finances the national tax. In the case of an occupational accident, the employer bears the cost, which is ultimately a policy decision on whether it is reasonable to grant a public official more wide range of protection than the ordinary worker through the ordinary finance in the occupational accident.

[Recognition] The result of each examination of the witness's illness, the result of each examination of the witness's illness, the attitude of the appraiser's illness, the result of each appraisal of the personal injury, the purport of the whole pleadings

(e) Markets:

(1) Whether the commuting accident constitutes an occupational accident

(A) If there is no commuting accident, it is said that there is no commuting accident. However, the commuting accident is an act of unnecessary resolution for the performance of duties. Therefore, the commuting accident is closely related to the performance of duties. In the case of public officials, it is recognized that the commuting accident is a public official’s occupational accident. Article 14 of the Enforcement Rule of the Public Officials Pension Act recognizes it as an occupational injury or death in the event that a public official is injured or died due to an accident that occurred during his/her departure and removal by normal route and method. The commuting is deemed as an act of preparation or extension for the performance of official duties, and it is recognized as an ordinary route or method during his/her commuting, in principle. In the case of a private school teacher and a soldier, there is no doubt about the fact that a private school teacher is a worker, and Article 33(2) of the Constitution of the Republic of Korea assumes that a public official is a public official, who is a public official, is also a worker. In the case of a general public official or a private school teacher, the expenses of the State or a local government can fully explain the contribution system.

(B) In light of the preventive function of the Industrial Accident Compensation Insurance Act, the primary purpose of the Industrial Accident Compensation Insurance Act is to compensate workers for occupational accidents promptly and fairly, and promote the rehabilitation of workers suffering from occupational accidents and their return to society (Article 1). The part implementing a disaster prevention project in the same Article refers to accident prevention project at the night, and cannot serve as a ground that preventive functions can be performed by excluding commuting accidents from occupational accidents. Above all, Article 4 Subparag. 1 of the Industrial Accident Compensation Insurance Act defines the term “occupational accidents” as “occupational accidents” only refer to the injury, disease, physical disability, or death of workers due to occupational causes, and does not stipulate that occupational accidents are considered only when they are under the control and management of an employer. Moreover, it is unreasonable to recognize traffic accidents using safe and convenient means of transportation among commuting accidents under the control and management of an employer as those under the control and management of an employer’s control and management of an employee’s workplace, and it is unreasonable to recognize them as occupational accidents under the control and management of an employee’s workplace, rather than those under the control and it is unreasonable.

(C) The industrial accident compensation system has the nature of social security to guarantee the right to life of workers as well as the special damages system of strict liability. From the perspective of social security, it is necessary to protect certain range of accidents as one of industrial accidents.

(D) In order to recognize the commuting accident as an occupational accident, first of all, there is a view that legislative resolution is desirable rather than to recognize the commuting accident as an occupational accident. Of course, even if the legislation is prior to the legislation, it is possible to interpret that the commuting accident constitutes an occupational accident in light of the nature of the commuting activity, uniform interpretation of the law, equity in the application of the law, etc. It is not a matter of the principle of recognizing the commuting accident as an occupational accident, but rather a technical matter of which the cost is to be borne in order to compensate the commuting accident ordered by the Industrial Accident Compensation Insurance Act. It is nothing more than a technical matter of which the legislative failure of such technical matters can not be the basis for recognizing the commuting accident as an occupational accident. It also belongs to the establishment of an industrial accident compensation insurance system, such as the Act on Guarantee of Automobile Accident Compensation, etc.

In light of the implications of foreign legislation on the commuting accidents, it is merely a legislation on the technical matters of protection according to the circumstances under the premise that the commuting accidents cannot be protected as one of the industrial accidents unless there is a legislation simply, but the commuting accidents are recognized as related to work and the need for protection from the social security point of view. In Korea, on the basis of the difference in the commuting accidents between the general workers and public officials, even in cases where Article 35(4) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act and Article 14 of the Enforcement Rule of the Public Officials Pension Act are required, it can obtain implications that the difference in the Enforcement Rule of the Public Officials Pension Act itself is merely a difference in the interpretation rules, rather than the difference in the legislation itself

(1) Of the total amount of accident compensation insurance for 30,000 won x 30,000 won for 20,000 won for 30,000 won for 20,000 won for 30,000 won for 20,000 won for 30,000 won for 20,000 won for 30,000 won for 20,000 won for 30,000 won for 30,000 won for 20,000 won for 30,000 won for 30,000,000 won for 20,000 won for 30,000,000 won for 20,000 won for 36,00 won for 20,000 won for 30,000 won for 20,000 won for 36,000 won for 36,00

(E) In a case where a worker’s commuting accident is viewed as an occupational accident, the scope of protection may be problematic. Article 35(4)1 of the Enforcement Rule of the Industrial Accident Compensation Insurance Act can be seen as an example provision, and Article 4 subparag. 1 of the Industrial Accident Compensation Insurance Act violates the purport of Article 4 subparag. 2 of the Industrial Accident Compensation Insurance Act. Thus, in light of the legal system with Article 14 of the Enforcement Rule of the Public Officials Pension Act, the equity between a public official and a general worker, at least a case of injury or death caused by an occupational accident

(F) According to the above facts, the plaintiff suffered from the accident in this case due to the accident that occurred in the way that the plaintiff was working at the lowest distance of the company and the dwelling and company's shortest distance of the company to work at night on the day of the accident, and thus, the accident in this case constitutes occupational accident as a commuting accident by normal route and method.

(2) Whether the Plaintiff’s attending and leaving school can be deemed to be under the control and management of the employer.

Even according to the existing precedents, the instant accident constitutes occupational accidents. According to the above facts, the Plaintiff’s passenger car driven by the Plaintiff at the time of the instant accident is owned by the Plaintiff and the right to use and manage the car belongs to the Plaintiff at ordinary times. However, the Plaintiff’s provision of his/her passenger car to be used for the moving and leaving of the instant factory employees is not limited to the Plaintiff’s subparagraphs, but for the Plaintiff’s response to the car pool operated by the company for the convenience of the moving and leaving of the instant factory employees. Until the employees implement the car pool, the company operated the bus on behalf of the instant factory employees but it was difficult for the employees to leave and leave the bus on behalf of the Plaintiff due to the suspension of its operation, and thus, it was necessary for the company to use the car pool on behalf of the employees who were difficult to move and leave the bus on behalf of the Plaintiff, and the Plaintiff’s right to use and leave the car in accordance with the Plaintiff’s labor condition or the car pool by organizing the car pool to the Plaintiff’s employees who participated in the instant accident.

3. Conclusion

Thus, the defendant's disposition of this case is illegal and illegal, and the plaintiff's claim seeking its revocation is accepted on the ground of its reasons.

Judges Park Jong-chul (Presiding Judge)