[Plaintiff, Appellant] Plaintiff (Attorney Park Jong-woo, counsel for the plaintiff)
[Defendant, Appellee] Korea Workers' Compensation and Welfare Service
[Judgment Below] Seoul High Court Decision 2004Nu25689 rendered on April 7, 2005
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. Summary of the fact-finding and judgment of the court below
The court below, comprehensively considering the evidence it adopted, found the following facts: the deceased, the husband of the Plaintiff (hereinafter referred to as the "Deceased"), entered into an employment contract with the Head of Yeongwol-gun on February 15, 2004, and worked as a daily wage forest fire watchman; while commuting to work at the Jucheon-myeon Office of Yeongwol-gun by motorcycle from his home at Yongseok 2-ri, Jucheon-myeon, Yeongwol-gun at approximately 08:37 on February 21 of the same year, he failed to properly negotiate a right curve on Gundo (county road) No. 3 at Badukgol, located in Geumma 4-ri of the same myeon, and slid, crossing the center line together with the motorcycle, colliding with an oncoming 5-ton truck, and died from multiple skull injuries and other injuries; the Plaintiff, on March 8, 2004, claimed bereaved family benefits and funeral expenses from the Defendant, asserting that the Deceased's death constituted an occupational accident, but the Defendant, on April 1 of the same year, issued a decision denying payment on the ground that the Deceased's death did not fall under "an accident occurring while using a means of transportation provided by the business owner for an employee's commuting to and from work" as provided in Article 35(4)(1) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act (산업재해보상보험법 시행규칙); the Deceased, as a forest fire watchman, performed forest fire watch duties using his own motorcycle from 09:00 to 17:00 without holidays (except on snowy or rainy days), receiving a daily wage of 33,000 won; although there was a route bus, it did not run frequently, so he commuted to the Jucheon-myeon Office using the above motorcycle, recorded and reported the previous day's work in a work log, received instructions on that day's work from the person in charge, and then went by the above motorcycle to Geumma 1-ri and 2-ri of Jucheon-myeon, his assigned forest fire watch area, where he performed forest fire watch duties using the motorcycle, patrolling a route of about 12km multiple times until the end of work at 17:00, and then, without returning to the Jucheon-myeon Office, went directly home from the site using the above motorcycle; meanwhile, the Deceased was hired on the condition that he would perform forest fire watch duties using his own motorcycle, and because the forest area subject to fire watch was very extensive, performing the duties using means of transportation such as walking or a bicycle was quite difficult; however, Yeongwol-gun or Jucheon-myeon did not involve itself at all in whether the Deceased commuted to and from work (if the method and route of commuting are restricted by social norms to the extent that it would be difficult to expect the employee to choose another method and route of commuting, then commuting under such circumstances is generally considered to be under the control and management of the business owner, since the choice of commuting method and route cannot be said to be reserved to the employee) using the above motorcycle, and did not separately pay the Deceased fuel costs or other vehicle maintenance expenses. Based on these findings, the court below determined that, even though the use of a vehicle such as a motorcycle was essential for the Deceased to perform his forest fire watch duties in an area where it was not easy to use public transportation, and accordingly, even if the Head of Yeongwol-gun, at the time of hiring the Deceased, made it a condition of employment that the person be an owner of a motorcycle or the like capable of performing duties using it, this fact alone could not be deemed to mean that the motorcycle was provided by the business owner or equivalent to a means of transportation provided by the business owner; moreover, since the authority to manage and use the above motorcycle belonged to the Deceased, and the choice of commuting method and route was entirely left to the Deceased, it was reasonable to view that, under these circumstances, this accident, which occurred when the Deceased crossed the center line at a location considerably distant from his assigned area, could not be said to have occurred under the control and management of Yeongwol-gun; and the mere fact that the method of commuting to work involved using a means of transportation essential to the performance of duties in order to arrive at the place of work performance could not be deemed to constitute an act of preparation for work incidental to the performance of duties; therefore, the court below determined that the Deceased's death due to this accident could not be considered an occupational accident.
2. Judgment of the Supreme Court
However, the judgment of the court below is difficult to accept as it stands, for the following reasons.
An occupational accident under Article 4(1) of the Industrial Accident Compensation Insurance Act (산업재해보상보험법) refers to an accident that occurs due to work performed by an employee, based on an employment contract with the business owner, under the control and management of the business owner, in the course of performing the relevant work duties or the usual activities incidental thereto. Regarding accidents occurring during an employee's commute to and from work, even though commuting is closely and inseparably related to the work of providing labor, the choice of commuting method and route is generally reserved to the employee, and therefore commuting cannot ordinarily be said to be under the control and management of the business owner. Accordingly, for an accident occurring during commuting to constitute an occupational accident, it must be a case where the employee's commuting process can be said to be under the control and management of the business owner, such as where the employee uses a means of transportation provided by the business owner, or the business owner has the employee use a means of transportation equivalent thereto (see Supreme Court Decision 99Du9025 rendered on December 24, 1999).
According to the facts lawfully established by the court below and the record, the following points can be noted: the Deceased was hired on the condition that he would perform forest fire watch duties using his own motorcycle; moreover, the commuting distance from the Deceased's home to the Jucheon-myeon Office was about 15km, and there was no public transportation available that could get him there in time for his work schedule, so he had no choice but to commute using the motorcycle; the Deceased did not commute directly to his assigned area but commuted to the Jucheon-myeon Office, recorded and reported the previous day's work status in the work log, received instructions on that day's work from the person in charge such as the industry section chief, and then rode the above motorcycle to Geumma 1-ri and 2-ri of Jucheon-myeon, his assigned area, where he performed forest fire watch duties using the motorcycle; the forest fire watch area assigned to the Deceased was very extensive, with a single patrol route of about 12km, making it difficult to perform the duties using means of transportation such as walking or a bicycle; the Deceased was to go directly home using the above motorcycle from the work site upon finishing his duties at the end of work time, 17:00, without returning to the Jucheon-myeon Office; and the route the Deceased chose in commuting from his home to the Jucheon-myeon Office was the shortest route between his home and Jucheon-myeon and can be considered a reasonable route. Comprehensively considering these points, it is difficult to expect, as a matter of social norms, that the Deceased would have chosen a commuting method or route other than the motorcycle; moreover, the Deceased's use of the motorcycle to commute to work was, at the same time, his method of commuting and also constituted an act of preparation for work, in that it involved preparing a means of transportation essential to the performance of his duties in order to arrive at the place of work performance. Accordingly, under these circumstances, it is reasonable to view that the process by which the Deceased commuted to work using the motorcycle by the shortest route was under the control and management of Yeongwol-gun, the business owner, and since the Deceased suffered this accident and died in the course of that process, the Deceased's death constitutes an occupational accident.
Nevertheless, the court below, contrary to this, determined for the reasons stated in its judgment alone that the Deceased's death did not constitute an occupational accident; such determination by the court below contains an error of law in misunderstanding the legal principles concerning occupational accidents or commuting accidents under Article 4(1) of the Industrial Accident Compensation Insurance Act, and the Plaintiff's ground of appeal pointing this out has merit.
3. Therefore, the judgment below is reversed, and the case is remanded to the court below for further deliberation and judgment. This judgment is rendered as stated in the Order, with the unanimous consent of the participating Justices.
Justice Ko Hyun-cheol (Presiding Justice), Yoon Jae-sik, Kang Shin-wook (Justice in charge)