[Plaintiff, Appellant] Plaintiff (Counsel: Attorney Lee Deok-gi)
[Defendant, Appellee] Korea Workers' Compensation and Welfare Service
[Judgment Below] Seoul High Court Decision 2012Nu37489 decided June 21, 2013
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
Generally, in a worker's commute to and from work, the choice of method and route of commuting is left to the worker, and thus the commute cannot ordinarily be said to be under the control and management of the employer. Since the Industrial Accident Compensation Insurance Act (산업재해보상보험법) does not contain any special provision recognizing an accident occurring while a worker commutes by an ordinary 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 ordinary. Accordingly, in order for an accident occurring during commuting to constitute an occupational accident, it must be a case where the worker's commuting process can be deemed to be under the control and management of the employer—such as where the worker uses transportation provided by the employer, or transportation that the employer has caused to be used in a manner equivalent thereto; or where, although outwardly it appears that the choice of method and route of commuting was left to the worker, the worker in fact performed work duties during the commute, or handled urgent business matters related to work before or after the ordinary commuting hours, or, due to the nature of the work or the particular characteristics of the workplace, had no real choice as to the method of commuting such that it cannot be said that the choice was actually left to the worker, and the commute is judged to be so closely and inseparably connected with the work, in a manner that is very close in the ordinary sense, as to be socially regarded as intimately related to the performance of duties (see Supreme Court en banc Decision 2005Du12572 decided September 28, 2007; Supreme Court Decision 2010Du184 decided April 29, 2010, etc.).
The court below determined, upon comprehensive consideration of the circumstances set forth in its reasoning, that Nonparty 2, who provided the vehicle in this case to Nonparty 1, the Plaintiff's husband, could not be deemed to be Nonparty 1's employer, and that there was no fact that Nonparty 3 Company caused Nonparty 2 to provide the vehicle in this case to Nonparty 1 and others; therefore, it is difficult to view the accident in this case as an accident that occurred while using transportation provided by the employer for commuting purposes or transportation that could be deemed to have been provided by the employer, and accordingly held that Nonparty 1's death does not constitute an occupational accident.
In light of the legal principles set forth above and the record, the court below's fact-finding and determination as above are justified, and there is no error, as argued in the grounds of appeal, of exceeding the bounds of the principle of free evaluation of evidence in violation of the rules of logic and experience, or of misapprehending the legal principles concerning occupational accidents.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This decision is rendered by the unanimous opinion of the participating Justices as set forth in the Order.
Justice Kim Shin (Presiding Justice), Min Il-yeong, Lee In-bok (Justice in charge), Park Bo-yeong