[Plaintiff, Appellant]
[Defendant, Appellee] Korea Workers' Compensation & Welfare Service (근로복지공단)
[Judgment Below] Seoul High Court Judgment 2006Nu660, decided December 28, 2006
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
"Occupational accident" under Article 4, Item 1 of the former Industrial Accident Compensation Insurance Act (산업재해보상보험법; before its full amendment by Act No. 8373 on April 11, 2007, hereinafter the "Industrial Accident Compensation Insurance Act") refers to an accident that occurs, based on the employment contract between the employee and the employer, in the course of performing the relevant work duties or engaging in ordinary activities incidental thereto, under the employer's control and management, and that arises from such duties. However, even though an employee's commuting to and from work is closely and inseparably related to the duty of providing labor, generally the choice of method and route of commuting is left to the employee, and it cannot ordinarily be said to be under the employer's control and management. Since the Industrial Accident Compensation Insurance Act contains no special provision recognizing, as an occupational accident, an accident that occurs while an employee is commuting to or from work by the ordinary method and route, an accident occurring during commuting cannot become an occupational accident merely because the method and route of commuting chosen by the employee were ordinary. Therefore, in order for an accident occurring during commuting to constitute an occupational accident, it must be a case where the employee's commuting process can be regarded as being under the employer's control and management, such as where the employee uses transportation provided by the employer or uses transportation equivalent thereto as arranged by the employer
(see Supreme Court Judgment 99Du9025, decided December 24, 1999; Supreme Court Judgment 2005Du4458, decided September 29, 2005; Supreme Court en banc Judgment 2005Du12572, decided September 28, 2007, etc.).
Examining the record in light of the foregoing legal principles, the court below, having cited the reasoning of the first instance judgment and found the facts as stated therein, determined that, even though the Plaintiff, who is the secretary general of the non-party foundation, went to the office on a holiday using public transportation to prepare for a board of directors meeting, since the choice of commuting method and route was left to the Plaintiff, and considering that the Plaintiff was the person in charge of the office, the subway line used by the Plaintiff for commuting cannot be regarded as transportation under the employer's control and management, and accordingly concluded that the injury and illness in this case cannot be deemed an occupational accident. This determination by the court below is justified, and there is no illegality therein, such as violation of the rules of evidence or misapprehension of the legal principles regarding occupational accidents, as alleged in the grounds of appeal.
Therefore, the appeal is dismissed, and this judgment is rendered as stated in the Order with the unanimous consent of the Justices participating in the decision.
Justice Park Il-hwan (Presiding Justice), Kim Yong-dam (Justice in charge), Park Si-hwan, Kim Neung-hwan