[Plaintiff, Appellant]
[Defendant, Appellee] Korea Workers' Compensation & Welfare Service
[Judgment Below] Seoul High Court Decision 2008Nu11091 rendered on September 24, 2008
[Order]
The judgment below is reversed, and the case is remanded to the Seoul 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 on April 11, 2007) refers to an accident occurring due to the relevant work performed by an employee, based on the employment contract between the employee and the business owner, in the course of performing such work or the ordinary activities incidental thereto, under the control and management of the business owner. In general, even though an employee's commuting to and from work is closely and inseparably related to the work of providing labor, insofar as the method of commuting and the choice of route are left to the employee's discretion, an accident occurring during the commute cannot be deemed an occupational accident. However, in cases where it can be found that the employee's commuting process is under the control and management of the business owner, such as where the employee uses transportation provided by the business owner or is made to use transportation equivalent thereto, an accident occurring during the commute may also constitute an occupational accident (see, e.g., Supreme Court en banc Decision 2005Du12572 rendered on September 28, 2007).
The court below, citing the reasoning of the first instance judgment, rejected the Plaintiff's argument that the injuries such as hemorrhagic brain contusion suffered by the Plaintiff in the traffic accident that occurred on January 2, 2006, around 07:30, while driving the vehicle in question owned by the non-party company to work, constituted an occupational accident, for the following reasons. That is, since the Plaintiff caused the accident while driving to work in the vehicle in question, which had been provided to him by the non-party company for free use for both business purposes and commuting, the method of the Plaintiff's commuting and the choice of route were left to the Plaintiff's discretion; therefore, even though the vehicle in question was a business vehicle of the non-party company and the non-party company bore the maintenance costs of the vehicle, it is difficult to view the Plaintiff's commuting process as having been under the control and management of the non-party company, and thus this accident does not constitute an occupational accident.
However, such determination by the court below is difficult to accept for the following reasons.
According to the facts found in the first instance judgment cited by the court below and the record, the following facts are established: the Plaintiff joined the non-party company around December 7, 1999, and at the time of this accident was working as the sales manager, overseeing the sales business of the non-party company; the non-party company is located at Hyangnam-myeon, Hwaseong-si (details omitted), and the Plaintiff's residence is located at Jeongnam-myeon, Hwaseong-si (details omitted); route buses operate only up to about the midpoint between the Plaintiff's residence and the non-party company, with no route bus service for the remaining section, making commuting by public transportation very inconvenient; the vehicle in question is a two-seater van/cargo vehicle owned by the non-party company, which was originally used for the non-party company's business purposes, but after the non-party company's location was relocated from Suwon-si to Hwaseong-si around 2003, it was provided by the non-party company to the Plaintiff, the sales manager, as a vehicle for commuting and business use, for the purpose of increasing the Plaintiff's mobility in performing his duties and resolving the difficulty of using public transportation; the non-party company bore the entire cost of maintaining the vehicle in question, including insurance premiums, fuel costs, and public charges, and the Plaintiff used the vehicle in question for commuting as well as for sales business such as managing clients and supplying products; besides the Plaintiff, a Mr. [Non-party], who was the management deputy director of the non-party company, also separately possessed a key to the vehicle in question, and during business hours other employees of the non-party company also used the vehicle in question for business purposes; the route via the site of this accident, which the Plaintiff chose in order to commute from his residence to the non-party company, is the shortest route between the Plaintiff's residence and the non-party company, and the Plaintiff took this route every day for commuting to and from work; and this accident occurred while the Plaintiff was driving the vehicle in question as usual along the shortest route to work.
Given the above, the vehicle in question constitutes, at least during commuting hours, a means of transportation provided by the non-party company for the Plaintiff's commuting, and moreover, the Plaintiff's commuting to work using the vehicle in question simultaneously constitutes the preparation of a means of transportation essential to the performance of the non-party company's sales business and the arrival at the place of work performance; therefore, under these circumstances, it is reasonable to view the process of the Plaintiff's commuting to work by the shortest route using the vehicle in question as having been under the control and management of the non-party company, the business owner, and this accident, which occurred in the course thereof, constitutes an occupational accident.
Nevertheless, the court below determined, contrary to the above, that this accident does not constitute an occupational accident, based solely on the reasoning set forth in its judgment. Such determination by the court below is unlawful in that it misapprehended the legal principles concerning occupational accidents, thereby affecting the outcome of the judgment. The argument in the grounds of appeal pointing this out is well-founded.
Therefore, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination, and it is so decided as set forth in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Lee Hong-hun, Justice Kim Young-ran, Justice Ahn Dae-hee, Justice Yang Chang-soo (Justice in charge)