[Plaintiff, Appellee]
[Defendant, Appellant] Korea Workers' Compensation & Welfare Service (근로복지공단)
[Lower Court Judgment] Seoul High Court Judgment 2005Nu13324, decided December 29, 2005
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[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 Insurance Act") refers to an accident caused by the performance of work duties, or the usual activities incidental thereto, carried out under the employer's direction and control based on the employment contract between the worker and the employer. However, even though a worker's commuting to and from work is closely and inseparably related to the duty of providing labor, the choice of method and route of commuting is generally left to the worker, and thus cannot ordinarily be said to be under the employer's direction and control. Since the Industrial Accident Insurance Act does not contain any special provision recognizing an accident occurring while a worker commutes by the usual method and route as an occupational accident, an accident occurring during commuting cannot be deemed an occupational accident merely because the method and route of commuting chosen by the worker were the usual ones. Therefore, in order for an accident occurring during commuting to be deemed an occupational accident, it must be the case that the worker's commuting process can be regarded as being under the employer's direction and control, such as where the worker uses transportation provided by the employer, or the employer arranges for the use of transportation equivalent thereto (see Supreme Court Decision 2005Du4458, decided September 29, 2005; Supreme Court en banc Decision 2005Du12572, decided September 28, 2007, etc.).
In light of the foregoing legal principles and the record, the lower court, citing the reasoning of the first instance judgment, found that, in view of the circumstances as adjudged that were established by the evidence it adopted, it could not be said that the choice of the method and route of commuting had, in effect, been left to the deceased, the husband of the Plaintiff (hereinafter the "Deceased"), regarding the accident in this case that occurred during the Deceased's commute to work, and it was reasonable to view that the Deceased's commuting process was under the direction and control of the employer, Nonghyup, the National Agricultural Cooperative Federation (농업협동조합중앙회). On this basis, the lower court determined that the accident in this case constituted an occupational accident under the Industrial Accident Insurance Act. This determination is justified and may be upheld, and there is no error of law, such as a misunderstanding of the legal principles concerning occupational accidents under the Industrial Accident Insurance Act, as alleged in the grounds of appeal.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order with the unanimous consent of the participating Justices.
Justice Yang Seung-tae (Presiding Justice), Park Si-hwan, Park Il-hwan (Justice in Charge), Kim Neung-hwan