[Plaintiff, Appellant] Plaintiff (Counsel Kim Yeon-su)
[Defendant, Appellee] Korea Workers' Compensation and Welfare Service
[Judgment Below] Daejeon High Court Judgment 2007Nu1840, decided December 21, 2007
[Order]
The judgment below is reversed, and the case is remanded to the Daejeon High Court.
[Reasoning]
The grounds of appeal are examined.
"Occupational accident" as defined in Article 4, Item 1 of the former Industrial Accident Compensation Insurance Act (산업재해보상보험법) (before its full amendment by Act No. 8373 of April 11, 2007) means an accident that arises from the performance of work duties, or from ordinary activities incidental thereto, carried out under the employer's control and management, based on the employment contract between the employee and the employer. Therefore, in order for an accident occurring during commuting to and from work to constitute an occupational accident, it must be the case that the employee's commuting process can be regarded as being under the control and management of the employer, such as where the employee uses transportation provided by the employer or uses transportation equivalent thereto as arranged by the employer (see Supreme Court en banc Decision 2005Du12572, decided September 28, 2007, etc.).
The judgment below, having comprehensively considered the evidence it adopted, found the facts as stated in its reasoning, and then determined that the accident in this case—in which the Plaintiff suffered injuries including spinal cord injury (cervical region) and cervical fracture as a result of a traffic accident that occurred around 08:00 on January 27, 2007, while the Plaintiff was commuting to work in his own passenger vehicle with a co-worker, Nonparty 1, riding along—did not constitute an occupational accident, on the ground that the Plaintiff's commuting process could not be regarded as having been under the control and management of Nonparty 2, the employer.
However, this determination by the court below is difficult to accept for the following reasons.
That is, according to the reasoning of the judgment below and the evidence lawfully adopted by the court below, the following facts may be found: the workplace of the (name omitted) company where the Plaintiff worked was located at (lot number omitted), Jeungyak-ri, Gunbuk-myeon, Okcheon-gun, Chungcheongbuk-do; when the Plaintiff, whose residence was at (villa name and unit number omitted), (lot number omitted), Dong-gu, Daejeon, commuted to the above workplace using public transportation, he had to transfer from a city bus to a village bus and the trip took a long time, such that commuting by public transportation was in fact difficult to expect; around November 1, 2006, Nonparty 2, the representative of the (name omitted) company, in the course of hiring Nonparty 1 as an employee, promised to resolve the transportation problem for Nonparty 1, who was hesitant to join the company due to the lack of a suitable means of commuting; Nonparty 2 instructed the Plaintiff, who lived in the same neighborhood as Nonparty 1, to give Nonparty 1 a ride in the Plaintiff's passenger vehicle for commuting, and agreed to pay the Plaintiff an additional 200,000 won per month on top of his salary as compensation therefor; accordingly, from around that time, the Plaintiff departed from his home every day, picked up Nonparty 1 at the crosswalk in front of the rear gate of Heungnyong Elementary School in Gaya 2-dong, Dong-gu, Daejeon, and drove him to the above workplace, and the Plaintiff received an additional 200,000 won per month from Nonparty 2 in addition to his salary; and the traffic accident in this case occurred while the Plaintiff, as usual, was commuting to work along the customary route with Nonparty 1 riding along in his passenger vehicle. Given these facts, since the Plaintiff was required to transport Nonparty 1 to and from work at a fixed time and along a fixed route each day and thus could not freely choose the time or route of commuting, it follows that the Plaintiff's passenger vehicle, which was provided, at the direction of the employer Nonparty 2, as a vehicle for commuting shared with Nonparty 1, was, at least during commuting, equivalent to a vehicle provided by the employer for the commuting of its employees; the right to manage and use the vehicle during commuting was not exclusively vested in the Plaintiff; and therefore there is room to find that the Plaintiff's commuting process was under the control and management of the employer.
Nevertheless, without fully conducting the necessary examination on this point, the court below readily determined that the injuries suffered by the Plaintiff due to the accident in this case, which occurred during his commute to work, did not constitute an occupational accident. The judgment below thus contains an error of law that misapprehended the legal principles regarding occupational accidents or failed to exhaust the necessary examination, thereby affecting the conclusion of the judgment.
Therefore, the judgment below is reversed, and the case is remanded to the court below for further examination and determination. This decision is rendered by the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Kim Neung-hwan (Presiding Justice), Yang Seung-tae, Park Si-hwan (Justice in charge), Park Il-hwan