In a case where Party A’s spouse B claimed for survivors’ benefits and funeral expenses, and the Korea Workers’ Compensation and Welfare Service (“Korea Workers’ Compensation and Welfare Service”) made a decision on survivors’ benefits and funeral expenses on the ground that “A’s spouse cannot be deemed as the representative director of the construction company C with no driver’s license, and the above accident was caused by an illegal act for which Party A’s primary reason for driving without a driver’s license, and thus, cannot be recognized as an occupational accident,” the case holding that Party A died of the above accident while performing his duties as an employee of the construction company C, and that there was a proximate causal relation between the performance of duties and the above accident, and thus, the above disposition made by the Korea Workers’ Compensation and Welfare Service on a different premise was unlawful.

As Gap died due to an accident involving the transition of the digging pool while driving the digging pool at the construction site, the case where Gap's spouse Eul filed a claim for survivors' benefits and funeral expenses, but the Korea Workers' Compensation and Welfare Service (Korea Workers' Compensation and Welfare Service) made a decision on survivors' benefits and funeral expenses on the ground that "It is difficult to see Gap as the representative director of the construction of the limited liability company Byung, and the above accident was caused by an illegal act which mainly caused unlicensed driving, and thus, cannot be recognized as an occupational accident."

The case holding that, although Gap is registered as the representative director of Byung Construction Company, in substance, it is reasonable to view Gap's act of driving so as to provide labor and receive remuneration in its own nature under the specific and individual direction and supervision from the actual manager, and since Gap operated the so-called so-called so-called "the above construction site," it is reasonable to regard Gap's act of driving the so-called "the duties of controlling and managing the business owner," Gap's act of driving the so-called "the without a driver's license" as an accident while driving the so-called the so-called "the without a driver's license," and the situation of the above construction site and the risk of driving the so-called "the above construction site" were inherent in the contents of the work separate from holding a driver's license, the above disposition is unlawful on the ground that Gap's act of driving the so-called "the above accident" and the above accident was caused by the accident without a driver's license, and it is hard to say that there was a proximate causal relationship between Gap's duty and the above accident.

Article 5(1) and Article 37(2) of the Industrial Accident Compensation Insurance Act

Plaintiff (Attorney Lee Jae-won, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

July 22, 2020

1. The determination of bereaved family benefits and funeral expenses rendered by the Defendant to the Plaintiff on August 28, 2018 shall be 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. The Plaintiff is the spouse of the deceased Nonparty 1 (hereinafter “the deceased”).

B. On June 29, 2018, around 14:30 on June 29, 2018, the Deceased was involved in an accident in which the excavation season is recovered while driving the excavation season at the site of “○○ Maintenance and Repair Work” (hereinafter “the construction site of this case”). Accordingly, around 17:00 on the same day, the Deceased died on multiple occasions.

C. On August 13, 2018, the Plaintiff filed a claim for survivors’ benefits and funeral expenses against the Defendant on August 13, 2018. On August 28, 2018, the Defendant rendered a decision on survivors’ benefits and funeral expenses (hereinafter “instant disposition”) on the ground that “The deceased cannot be deemed as the representative director of the Construction Company, and the instant accident was caused by a tort on the ground that the deceased, who did not have a driver’s license, was caused by an unlicensed driving. Therefore, it cannot be recognized as an occupational accident.”

D. On January 30, 2019, the Plaintiff filed a request for reexamination, but the Industrial Accident Compensation Insurance Reexamination Committee rendered a ruling dismissing the Plaintiff’s request for reexamination on May 30, 2019.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 4, 24, the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

Although the Deceased is registered as the representative director of the Middlewon Construction Company, the actual representative of the said company and the business operator are Nonparty 2. The Deceased is an employee of the said company, who was operating the digging gear at the construction site of this case executed by the said company according to Nonparty 2’s instruction, and was affected by the instant accident. As such, the Deceased’s death caused by the instant accident constitutes occupational accident, and cannot be deemed as arising from the tort that mainly caused the Deceased’s unlicensed driving. Accordingly, the instant disposition taken by the Defendant on a different premise is unlawful.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Whether the deceased is a worker of the intermediate construction of a limited company

A) The Industrial Accident Compensation Insurance Act does not have any provision regarding an employee entitled to insurance benefits under the same Act as "worker under the Labor Standards Act", and therefore, an employee entitled to insurance benefits falls under only a "worker under the Labor Standards Act". Thus, whether an employee is a "worker under the Labor Standards Act" should be determined depending on whether the employee provides labor in a subordinate relationship with the employer for the purpose of wages at the business or workplace in substance, or whether the employee is registered as an executive in the corporate register. Meanwhile, the representative director of a corporation must represent the company externally and externally have the authority to perform the business affairs of the company, and barring any special circumstance, the employee is not a worker under the Industrial Accident Compensation Insurance Act. However, even if a person is registered as the representative director of a corporation, the status as the representative director is merely a formal and clear purpose, and it is executed under the name of the company, as well as in external performance of business, and the actual manager is a separate person entitled to insurance benefits, and whether the employee is a person entitled to insurance benefits under the Industrial Accident Compensation Insurance Act.

B) In the instant case, comprehensively taking account of the following circumstances that may be recognized by the respective statements in Gap evidence Nos. 4, 6 through 13, 15, and 2, and the testimony and arguments of non-party 2 of the witness, the deceased is registered as the representative director of Jungwon Construction Co., Ltd., but in substance, it constitutes a worker who provided labor under specific and individual direction and supervision by non-party 2, the actual manager, and received remuneration for his own nature as a target of labor.

(1) At the time of incorporation, Non-Party 2’s management of the company as the representative director, and Non-Party 2’s wife from November 29, 2012, and from August 23, 2016, Non-Party 2’s wife was registered as the representative director, and the deceased was registered as the representative director of the company from September 22, 2017, as between Non-Party 2 and Dongwest Branch.

(2) In fact, Non-Party 2 was a company established by investing the full amount of capital and actually managed after the establishment of Non-Party 2. Even after the deceased’s registration as the representative director, Non-Party 2 seems to have made a final decision in overall management, including personnel management, financing management, taxation, and accounting.

(3) Before September 22, 2017, the Deceased, registered as the representative director of the Construction Company, prepared the details of labor costs, work logs, and usage of site expenses in the margin operated by Non-Party 2, a limited liability company operated by Non-Party 2, and reported to Non-Party 2. On September 22, 2017, the Deceased managed the construction site of a limited liability company and a limited liability company, and reported to Non-Party 2.

(4) In the middle-class construction company, the Deceased received approximately KRW 4 million each month as a salary in the course of performing the above duties, and the said company paid the deceased after deducting the earned income tax, national pension, health insurance premium, etc. from the monthly wage for the deceased.

2) Whether the death was caused by the deceased’s criminal act

A) According to the main text of Article 37(2) of the Industrial Accident Compensation Insurance Act, death caused by an employee’s criminal act does not constitute occupational accident. In light of the contents of the above Act and subordinate statutes, in cases where an accident occurred by competition between the employee’s criminal act and his/her duties or other circumstances, whether the accident is within the scope of danger ordinarily accompanying in the course of performing his/her duties and the degree of contribution to the occurrence of the accident, and whether the criminal act unrelated to his/her duties has committed an occupational accident to the extent that proximate causal relation between the occurrence of the accident and

B) In full view of the following circumstances that can be recognized by the overall purport of the statements and arguments stated in Gap's evidence Nos. 8, 12, 21, 22, 24, Eul evidence No. 3, Eul evidence Nos. 4-3, 4, and Eul evidence Nos. 6-11, and all of the arguments, the deceased, as an employee of the limited liability company, was killed in the accident caused by the deceased's performance of duties and the accident of this case. It is difficult to view that the proximate causal relation has been lowered since the accident of this case occurred due to the cause of the deceased's non-licensed driving without permission.

(1) Nonparty 2 was prosecuted for having been sentenced to a suspended sentence of two years on July 8, 2020 by the Jeonju District Court on the following grounds: “The deceased died due to the instant accident without performing the duty to take necessary safety measures as the actual manager of construction of a limited company, and ordering the deceased to cut the wall near the entrance to the site work,” etc., and was sentenced to a suspended sentence of two years for a violation of the Occupational Safety and Health Act at the Jeonju District Court. The above judgment became final and conclusive as it is.

In civil or administrative trials, even if it is not bound by the finding of facts in a criminal trial, the fact that the criminal judgment already finalized on the same factual basis was guilty is significant evidence, and thus, it cannot be acknowledged that there is no special circumstance where it is difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the civil or administrative trials (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012). In full view of these legal principles and all the evidence submitted in this case, it is reasonable to deem that the deceased was driving the digging range to perform work in accordance with the instructions given by Nonparty 2 at the construction site in this case, and it is difficult to find any other circumstances to determine the facts, and therefore, it is reasonable to deem that the deceased's driving act is the conduct of duties under the control and management of the business owner.

(2) The Deceased was involved in the instant accident while driving a digging pool without a construction machine driver’s license. However, it cannot immediately deny the performance of duties as a criminal act on the ground that the Deceased was an unlicensed driver, and the possibility of an accident due to the on-site situation and the subject of work can be deemed to be within the scope of danger ordinarily accompanying.

(3) The Deceased was involved in the instant accident while driving a digging pool on a road that is formed into a reservoir, moving out of a road to the wall of the reservoir and moving out of the road to the wall of earth on the side of the reservoir. In such a case, the risk of spreading the digging season due to weak ground support power of earth and sand is inherent in the content of the work, separate from whether or not the driver’s license is held.

(4) It is difficult to find out an obvious circumstance to view the deceased as a person's and a private act, who is outside the control and management duties of the business owner, with driving of a digging gear or moving to the wall of a reservoir.

3) Sub-decisions

Therefore, the deceased died of the accident in the course of performing his duties as a worker of the Construction Company, and there is a proximate causal relation between the performance of his duties and the death of the deceased. Therefore, the disposition of this case by the defendant on other grounds is unlawful.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Separate] Relevant statutes: omitted

Judges Lee Jong-chul