[1] In Section II of a motor vehicle mutual aid agreement, "no compensation shall be made to a person who is an employee of a partner liable for compensation and is entitled to accident compensation under the Industrial Accident Compensation Insurance Act," and the person who bears the burden of proving that the act constitutes the purpose of the exemption clause and the requirements to apply the said exemption clause (=the side of the mutual aid association

[2] In a case where Gap employee Eul, a partner of the transportation company, died due to a traffic accident that occurred due to the operation of a bus which was joined in the automobile mutual aid agreement of the Federation of Korea Bus Transport Business Associations, and there was a exemption clause in B of a mutual aid agreement to the effect that "an employee of the partner who is liable for damages, who is entitled to accident compensation under the Industrial Accident Compensation Insurance Act" was not compensated, the case holding that the court below erred in the misapprehension of legal principles as to the burden of proof and degree of proof when applying the automobile mutual aid exemption clause to Eul's compensation amount

[1] Article 1 of the Industrial Accident Compensation Insurance Act, Article 288 of the Civil Procedure Act/ [2] Article 1 of the Industrial Accident Compensation Insurance Act, Article 288 of the Civil Procedure Act

[1] Supreme Court en banc Decision 2003Da2802 Decided March 17, 2005 (Gong2005Sang, 586)

Plaintiff (Law Firm Cho & Lee, Attorneys Jeong Jin-jin, Counsel for plaintiff-appellant)

The National Federation of Bus Transport Business Cooperatives (Attorney Jeong Sung-sung, Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2011Na16201 Decided July 12, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In Section II of the automobile mutual-aid contract, where a clause provides an exemption from liability to the effect that “if a person is an employee of the association member liable for compensation who is entitled to the accident compensation under the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Insurance Act”), he/she shall not compensate for the damage (However, excess compensation exceeding the scope of compensation under the Industrial Accident Compensation Insurance Act),” the purport of the provision is to stipulate various employer’s liability for compensation for the damage caused by an occupational accident caused by an industrial accident in the labor-management relationship between the employer and the employee, while setting the industrial accident insurance system under the Industrial Accident Insurance Act governing the labor-management relationship, to secure such liability, the industrial accident insurance system is established to ensure that the damage caused by an occupational accident subject to the industrial accident insurance is compensated by the industrial accident insurance, and as such, to the extent possible, it is reasonable to interpret that the provision is to exclude the damage to a third party within the scope of damage compensation, which is the substitute of the automobile insurance (see Supreme Court en banc Decision 2003Da2802, Mar. 17,

Therefore, if a mutual aid association is able to compensate for an industrial accident insurance benefit among damages to be compensated by a mutual aid agreement, it shall be exempted from liability for damages of the mutual aid association and transferred to industrial accident insurance benefits pursuant to the above exemption clause, barring any special circumstance. However, it shall not be deducted if it is unclear whether the compensation amount is actually paid or the decision on payment of industrial accident insurance benefits is not necessary in order to deduct the amount equivalent to the compensation amount from the amount of compensation amount, on the ground that it falls under the "an employee of a partner who is liable for compensation and is entitled to accident compensation under the Industrial Accident Insurance Act" which is the requirement to apply the exemption clause.

2. Based on its adopted evidence, the lower court: (a) died of the deceased non-party, who is an employee of the Bo Young Transportation Co., Ltd. (hereinafter “Nonindicted Company”) due to occupational traffic accidents caused by the Defendant’s automobile mutual aid contract (hereinafter “instant mutual aid contract”); and (b) under the mutual aid agreement II, the Plaintiff is the heir; (c) in the case of “an employee of the deceased who is liable for compensation and is entitled to accident compensation under the Industrial Accident Insurance Act,” the non-compensation clause (hereinafter “instant exemption clause”); (d) the deceased’s operation of bus around 23:43 on the date of the instant accident; and (e) the deceased’s retirement from his office around 0:005 on the day of the instant accident; (e) the deceased’s death from his office to another driver of the non-party company; and (e) the deceased’s death from his office to the non-party’s death or retirement from the deceased’s office within the scope of 00:05 days on the following day; (e) the deceased’s death or retirement from his office.

However, according to the records, the deceased was employed as a waiting article for the non-party company on September 1, 2006. At the time of the accident, the deceased's residence was located at a place less than three kilometers away from his workplace. The plaintiff was notified by the Korea Workers' Compensation and Welfare Service that "the deceased's death is not an occupational accident, and thus, he cannot be paid survivors' benefits, etc." and then filed a lawsuit against the defendant for damages of this case against the defendant. The first instance court rejected the allegation on the application of the exemption clause of this case from the first instance court to the application of the exemption clause of this case. In light of the above legal principles, it is difficult to view that the circumstance stated by the court below alone alone is sufficient to prove that the payment of industrial accident insurance benefits or the requirements for the application of the exemption clause of this case, namely, the deceased's employee who is liable to compensate for losses, constitutes an employee under the Industrial Accident Insurance Act.

Nevertheless, the lower court accepted the Defendant’s assertion solely on the grounds stated in its holding, and excluded the Plaintiff from the amount of industrial accident insurance benefits, such as survivor benefits, whose compensation is uncertain in the amount of compensation for damages. In so doing, the lower court erred by misapprehending the legal doctrine on the burden of proof and degree of proof in applying the motor vehicle mutual aid agreement exemption clause, which led to failure to exhaust all necessary deliberations. The allegation in the grounds of appeal

3. Therefore, without examining the remaining grounds of appeal, 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.

Justices Yang Chang-soo (Presiding Justice)