The revocation of revocation of the payment of bereaved family's benefits and funeral expenses, 208Gudan475

P. (54years/n)

Attorney Kim Don-do

Korea Labor Welfare Corporation

December 10, 2008

January 14, 2009

1. The part of compensation for survivors among the disposition of compensation for survivors and funeral expenses made by the defendant against the plaintiff on March 19, 2007, concerning compensation for survivors shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/9 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The defendant's disposition of compensation for survivors and funeral expenses against the plaintiff on March 19, 2007 shall be revoked.

1. Details of the disposition;

A. On November 12, 2006, the Plaintiff’s husband (hereinafter referred to as “the deceased”) served as an employee belonging to XX Co., Ltd. (hereinafter referred to as “Nonindicted Co., Ltd.”), died as “the emergency room of a P University Hospital” due to a traffic accident that conflicts with the central separation unit, where the Plaintiff passed through the Busan Dong-dong Busan, located in Busan, on November 23, 2006, while working at around 23:00 on November 14, 2006.

B. On March 14, 2007, the Plaintiff asserted that the death of the deceased constituted an occupational accident and filed a claim for the payment of compensation for survivors and funeral expenses to the Defendant. On March 19, 2007, the Defendant rendered a compensation for survivors and funeral expenses (hereinafter “instant disposition”) against the Plaintiff on the ground that it does not constitute an occupational accident recognition standard under Article 35(4) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act.

C. On the other hand, the Plaintiff filed a request for review and reexamination in succession, but all of which were dismissed.

【Reasons for Recognition】

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the deceased’s work form, the inevitable nature of commuting by using self-driving means, the permission of the non-party company, the fact that the non-party company is instructed to put specific work on holidays in the absence of time, and the work route and work means, etc., the deceased’s death should be viewed as occupational accident, but the defendant’s disposition of this case otherwise reported is unlawful.

(b) Fact of recognition;

(1) On August 3, 2006, the deceased joined the non-party company as a temporary position and converted to a regular position on October 1, 2006. The work performed was to walk on or fling on the land boom by using a vehicle that reduces the vessel at the time of entry and departure of a ship. The work performed in ordinary two persons. The deceased was paid wages of KRW 750,000 and KRW 50,000 for food expenses from the non-party company.

(2) The non-party company worked for six workers, including the Deceased, and the office of the non-party company is located in the central road of Jung-gu in Busan, but the office of the non-party company was located in the central road of Busan. The office of the non-party company was five copies of the site work. Workers of the non-party company including the Deceased, who work for the above site work office, are going out and leave the workplace to the above site work office, work for the cargo station in Busan Northern port from the wharf to the new wharf, and work for the cargo station in Busan port without additional working hours or holidays. The order of work is that the working team head goes to work for one hour prior to the working hour and place, and if assigned work for each vessel, he goes to work for the relevant wharf that is scheduled to work using the vehicle of the non-party company, and return to the site work office again.

(3) The employees of the non-party company were usually waiting in the field office until the next working hours, but they returned back to the field office after returning home at work intervals.

(4) The allocation of work by the Working Group head is carried out prior to the work, with workers leaving the site office and confirm the following work, and work at work by one hour following the following work hours without any separate contact. If the scheduled work hours change due to a change in the entry and departure time of a ship, the Working Group head shall notify workers of the plan by cell phone, etc.

(5) The non-party company did not provide its employees with a vehicle for commuting, or not separately pay expenses for commuting. The employees of the non-party company operated a passenger car or stoba, or shipped out and set off by means of public transportation, and the deceased was 100c c stobabba owned by himself/herself and went out and set out.

(6) On November 12, 2006, the Deceased completed work at around 10:30 on November 12, 2006, and confirmed and retired from the work. According to the work schedule at the time, SSho was planned to leave the port at the reduction wharf, which is 7:0 on the same day, at around 23:00, to leave the port, and at around 7:00 on the following day, there was a plan to leave the port, and the work following the departure of each vessel was left by other workers except the Deceased and B. However, at around 02:00 on the following day, C, the head of the working group, who was the head of the working group, notified the Deceased of the need to enter the port at around 7:0 on the cell phone at around 21:58, and notified the Deceased of the need to leave the port at around 01:0 on the next day, and ordered the Deceased to contact the Deceased with his mobile phone at around 20:25:27.

(7) Upon receiving the above contact, the Deceased went through the above Busan tunnel and died after being affected by traffic accident in the exit, from five parts of the site work site at his own house located in Busan Island. The Busan tunnel used at the time by the Deceased is a net route from the deceased’s own house to five parts.

(8) On the other hand, means of public transportation which can move at a five-lane wharfs are 5-1 and 109 city buses, and means of public transportation which can move at a seven-lane wharfs are 23 city buses.

If you go to five or seven parts of means of public transportation at the deceased's own home, they should move from the subway to the above buses in the middle of one-time service. On the other hand, the use of private cars takes about about 20 to 30 minutes.

【Reasons for Recognition】

C. Determination

(1) The term "occupational accident" under Article 4 subparagraph 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007; hereinafter referred to as the "Act") means an accident caused by an employee's performance of his/her duties under the control and management of the employer or his/her ordinary activities incidental thereto. Generally, even in an indivisible relationship with the business of providing labor, as long as the employee's choice is reserved in terms of the method of departure and retirement and the path of the employee's choice, the accident that occurred during his/her dispatch and retirement cannot be deemed as an occupational accident, on the ground that the choice of the employee is ordinary. However, if it is difficult to view that the worker's withdrawal and retirement process is under the control and management of the employer's work, it is not closely related to the worker's occupational accident, such as the method of departure and retirement and retirement, or it is not closely related to the worker's occupational accident that occurred during his/her dispatch and retirement process, such as the method of accident and retirement from work.

(2) With respect to the instant case, the following circumstances revealed by the above recognition: (i) the deceased’s work was conducted at the time of entry and departure of a ship without the prescribed working hours and holidays; and (ii) the time between the work could repeat several times a day; (iii) the deceased retired from work due to the absence of scheduled work, but he was ordered to work by the Working Group’s work due to the sudden change of the time of entry into the ship; (iv) the time when the deceased received instructions from 21:58; and (v) the time when the deceased was instructed to work until 24:00; (v) the time when he/she was instructed to work is around 22:25; (v) the deceased’s work at his/her own home to move to the city bus; and (v) the time of the deceased’s work would not have any close relation with the deceased’s work at the time of entry into and departure from the workplace; and (v) it would be difficult to expect the deceased’s work at the time of entry into and departure from the taxi.

(3) Meanwhile, Article 45(1) of the Act provides that "the funeral expenses shall be paid in the event that an employee dies on the ground of his occupational reason, and the amount equivalent to the average wage for 120 days shall be paid to the person who performs the funeral." According to the statement of No. 9 and the witness C's testimony, the non-party company can recognize the fact that the funeral has been executed against the deceased by bearing all funeral expenses. Thus, the plaintiff has no right to claim the payment of funeral expenses to the defendant.

(4) Ultimately, the part on compensation for survivors of the instant disposition is unlawful, and the part on funeral expenses is lawful.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Yang Dong-soo