[Defendant-Appellee] Defendant 1 and 2 others

Korea Labor Welfare Corporation

April 14, 2009

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's disposition of non-approval for medical care rendered to the plaintiff on January 3, 2008 is revoked.

1. Details of the disposition;

A. On November 14, 2007, the Plaintiff was an employee of Nonparty 2 Co., Ltd. (hereinafter the “Nonindicted Company”) who was awarded a subcontract for part of the construction work of the Literacy Training Institute (hereinafter the “Nonindicted Company”) and was working for Nonparty 3 Co., Ltd. on or around November 14, 2007, when driving a vehicle owned by Nonparty 3 Co., Ltd., a human resources presentation company, and worked for the work, the Plaintiff was subject to the instant traffic accident, which caused the Plaintiff to enter the “No. 2 pulvers and 12, etc., of the No. 12 in terms of his/her academic lusium located in the Gyeonggi-do.

B. Accordingly, the Plaintiff applied for medical care for the instant injury to the Defendant. On January 3, 2008, the Defendant rendered the instant disposition to refuse medical care on the ground that the instant traffic accident occurred in the course of the Plaintiff’s work at his home to work at the workplace, and that the process of departure and retirement cannot be deemed as being under the control and management of the business owner, and that it does not constitute occupational accidents.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 3-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff’s daily workers employed by the non-party company, like the Plaintiff, should work in the workplace located in Gyeonggi-gun from 07:00 a.m. to 07:00 a.m., and the workplace from Seoul to the above workplace was provided with vehicles owned by the non-party 3, who entered into a labor contract for the provision of daily work with the non-party company, and operated their workplace according to the time and route set each day by the Plaintiff, and the non-party company allowed such commuting to and from work by paying 40,000 won a day through the labor company at the cost of transportation. Since the location of the instant traffic accident was located on the normal route of commuting, the instant traffic accident was found to have occurred under the control and management of the non-party company, which is the business owner, despite the fact that the instant accident constituted occupational accidents, the instant disposition made by the

(b) Fact of recognition;

(1) On June 2007, the non-party company agreed to provide the non-party 3 corporation with skilled workforce necessary for concrete strawing to apply new technology upon receiving a subcontract for part of the construction work of the Eunpyeong Training Institute built by the non-party 1 corporation, and to provide the non-party 3 corporation through the non-party 3 corporation, taking into account the circumstances in which it is impossible to provide transportation vehicles necessary for long-distance commuting to and from work, the above non-party 3 corporation prepared the means of transportation such as vehicles, and the non-party company will pay 40

(2) Accordingly, workers, including the Plaintiff, were gathered at the office of the above non-party 3 corporation around 5:00 each day from June 2007, and went to and from work (round 07:00 p.m., around 05:0 p.m., around retired 05:0 p.m.) at the construction site of the Gyeonggi Youth Training Institute (round 07:00 p.m., around retired 05:0 p.m.) using the studs (vehicle number omitted) provided by the non-party 3 corporation. After retirement, the aforementioned non-party 3 corporation received the amount calculated by deducting the fee from the daily allowance (round 120,000 per person, KRW 125,00 per person) through the above non-party 3 corporation.

(3) The non-party 2 corporation provided accommodation to workers commuting to and from the workplace in the vicinity of the new construction site. However, the above non-party 3 corporation including the plaintiff did not use the above accommodation for those who worked as a daily employee at the new construction site.

[Ground of recognition] Gap evidence Nos. 1 through 28 (including paper numbers), Eul evidence Nos. 1 through 5 (including paper numbers), part of the witness non-party 4's testimony, fact-finding with respect to non-party 2 corporation, the purport of the whole pleadings, as a whole.

C. Determination

The term “occupational accident” under Article 5 subparag. 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8694 of Dec. 14, 2007) refers to an accident caused by a worker’s work performance or ordinary activities incidental thereto under the control and management of the employer based on an employment contract between the worker and the employer. Thus, it shall be deemed that the worker’s commuting process is under the control and management of the employer, such as the worker’s use of the means of transportation provided by the employer or the worker’s use of a similar means of transportation if the accident occurred during his/her commuting to and from work due to an occupational accident (see, e.g., Supreme Court en banc Decision 2005Du12572, Sept. 28, 2007).

However, in this case, in consideration of the circumstances that the non-party 3 corporation would be provided with human resources necessary for concrete building through the non-party 3 corporation while executing a subcontract with the non-party 1 corporation's new construction of the Eunpyeong Training Institute, and the non-party 3 corporation could not provide commuting vehicles necessary for commuting to and from work, the non-party 3 corporation agreed to additionally pay 40,000 won per day for transportation in addition to daily allowances. Accordingly, the non-party 3 corporation, including the plaintiff, was gathered to the office of the non-party 3 corporation at around 5:00 on June 2007, and used the above non-party 3 corporation's new construction of the Gyeonggi Youth Training Institute (vehicle number omitted) to get out of and off the work site by using the above non-party 3 corporation's daily transportation team at which the non-party 3 corporation would not be provided with the non-party 3 corporation's daily transportation distance, and the non-party 3 corporation did not directly get from and off the work site.

Therefore, the disposition of this case is legitimate for the reason that the accident of this case does not constitute occupational accidents, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Full Order