[Plaintiff (Retrial Plaintiff)] Plaintiff (Retrial Plaintiff)
[Defendant (Retrial Defendant)] Korea Workers' Compensation and Welfare Service
[Judgment Subject to Retrial] Supreme Court Decision 2011Du2385 Decided March 14, 2011
[Order]
The request for retrial is dismissed. The costs of the retrial litigation shall be borne by the Plaintiff (Retrial Plaintiff).
[Reasoning]
1. First, we examine whether grounds for retrial exist.
Where a document to be served is delivered to a cohabitant of the person to be served, and that cohabitant has the intellectual capacity to discern matters, service is effective even if the person to be served does not actually come to know the contents of the document. In this regard, in order to be found to have the intellectual capacity to discern matters, it is not necessary that the person have the ability to understand the judicial system in general or the effect of litigation acts; however, the person must at least have the capacity to understand the purport of service and to be expected to deliver the document received to the person to be served (see Supreme Court Order 99Mo225, dated February 14, 2000; Supreme Court Order 2005Ma1039, dated December 5, 2005, etc.).
According to the record, in the final appeal (Supreme Court Case No. 2011Du2385) of the lawsuit filed by the Plaintiff (Retrial Plaintiff, hereinafter "Plaintiff") against the Korea Workers' Compensation and Welfare Service seeking revocation of the disposition denying survivor benefits and funeral expenses, it can be seen that on January 31, 2011, a mail carrier went to the Plaintiff's address to serve the notice of receipt of the appeal record on the Plaintiff, but failed to meet the Plaintiff there, and instead delivered the notice of receipt of the appeal record to Non-party 1, the Plaintiff's daughter who lives with the Plaintiff, and obtained Non-party 1's signature on the certificate of service; and that Non-party 1, born on December 30, 2002, was a child of just over 8 years and 1 month of age at the time she received the notice of receipt of the appeal record.
In light of the above findings and, as can be ascertained from the record, Non-party 1's age and level of education, as well as the procedural significance and importance of the notice of receipt of the appeal record, unless there are special circumstances such as the mail carrier who served the litigation document having made Non-party 1 aware of the importance of the document being served and having requested that she deliver it to the Plaintiff, it cannot be expected that most children of that age would deliver such document to the person to be served. Therefore, it is difficult to find that Non-party 1, who received the notice of receipt of the appeal record, had the intellectual capacity to discern matters relating to the receipt of litigation documents. Accordingly, the supplementary service of the notice of receipt of the appeal record cannot be deemed lawful.
Nevertheless, it is clear from the record that the judgment subject to retrial, having found the supplementary service of the notice of receipt of the appeal record to be lawful, dismissed the Plaintiff's appeal on the ground that the Plaintiff's appellate brief was not submitted within the submission period, calculated based on the date of Non-party 1's receipt, pursuant to Article 8(2) of the Administrative Litigation Act (행정소송법), Article 429 of the Civil Procedure Act (민사소송법), and Article 5 of the Act on Special Cases Concerning the Procedure for Appeal to the Supreme Court (상고심 절차에 관한 특례법). This judgment subject to retrial thus contains an error of failing to render judgment on an important matter that could affect the judgment, and this constitutes a ground for retrial under Article 422(1)9 of the Civil Procedure Act.
2. We further examine the grounds for appeal.
"Occupational accident" under Article 5(1) of the Industrial Accident Compensation Insurance Act (산업재해보상보험법, hereinafter the "Industrial Accident Insurance Act") refers to an accident arising from work performed, based on an employment contract between an employee and an employer, in the course of carrying out the assigned work duties or the ordinary activities incidental thereto, under the employer's control and management. However, even though an employee's commuting to and from work is closely and inseparably related to the work of providing labor, since the choice of commuting method and route is generally left to the employee's discretion and thus generally cannot be said to be under the employer's control and management, and since the Industrial Accident Insurance Act does not contain a separate special provision recognizing accidents occurring during commuting by ordinary methods and routes as occupational accidents, an accident occurring during commuting cannot become an occupational accident merely because the commuting method and route 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 deemed to be under the employer's control and management—such as where the employee uses a means of transportation provided by the employer, or uses a means of transportation which the employer has caused to be used equivalent thereto; or where, although on its face the choice of commuting method and route appears to have been left to the employee, the employee actually performed work duties during the commute, or, due to urgent work-related matters before or after the ordinary commuting time, or due to the nature of the work or the particularities of the workplace, there was no room for choice in the commuting method, so that it cannot in fact be said to have been left to the employee's discretion, and it is determined that the commute is, in a socially accepted sense, extremely closely and inseparably related to the work (see Supreme Court en banc Decision 2005Du12572, decided September 28, 2007; Supreme Court Decision 2010Du184, decided April 29, 2010, etc.).
The court below found that the deceased Non-party 2 (hereinafter the "Deceased"), while driving his own passenger car at approximately 07:15 on November 3, 2008 to commute to the ○○ Sales Office of Lotte Confectionery Co., Ltd. where he worked, was involved in a traffic accident while heading toward the house of Non-party 3, a fellow employee with whom he was carpooling, in order to pick him up; that buses ran frequently between Non-party 3's house and the above sales office; that there were no circumstances suggesting it would have been unreasonable for the Deceased to choose a commuting method other than a personal means of transportation; and that even if the head of the above sales office had instructed the Deceased to commute by carpooling with Non-party 3, or had paid the Deceased and other team leaders 50,000 won per person once or twice a month from the sales office's operating expenses as a partial subsidy for fuel costs, such circumstances alone were insufficient to find that the management or right of use of the passenger car was exclusively vested in the Deceased, such that the accident occurred while using a means of transportation provided by the employer for commuting purposes, or a means of transportation that could be deemed to have been provided by the employer. On this basis, the court below determined that the above accident could not be deemed an occupational accident.
Examining the record in light of the above legal principles, the judgment below is justified, and it does not contain any error, as alleged in the grounds of appeal, in violation of the rules of evidence or in misapprehending the legal principles concerning occupational accidents.
3. Conclusion
Accordingly, since the judgment subject to retrial was justified in its conclusion dismissing the appeal, the request for retrial in this case is dismissed pursuant to Article 460 of the Civil Procedure Act, and the costs of the retrial litigation are to be borne by the losing party. This Judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Min Il-young (Presiding Justice), Kim Neung-hwan (Justice in Charge), Ahn Dae-hee, Lee In-bok