[Plaintiff, Appellee]
[Defendant, Appellant] Head of Busan Bukbu Labor Office (부산북부노동사무소장)
[Judgment Below] Busan High Court Decision 92Gu1957 delivered on October 14, 1992
[Order]
The judgment below is reversed, and the case is remanded to the Busan High Court.
[Reasoning]
The grounds of appeal are examined.
1. The court below lawfully established that the deceased, the husband of the Plaintiff (hereinafter "the deceased"), while commuting to Iljin Metal (일진금속), a mold-manufacturing business located in Hakjang-dong, Buk-gu, Busan, where he was employed, boarded a city bus at around 05:20 on August 26, 1991, got off at a bus stop near Iljin Metal, and was struck by a vehicle and died while walking to his workplace on a crosswalk. Based on this, the court below rendered the following determination as to whether the deceased's death constituted an occupational accident.
That is, generally, an accident occurring during commuting is not an accident occurring under the employer's control and management, and thus cannot be considered an occupational accident. However, since commuting is an act closely related to the provision of labor, in cases where an employee suffers an accident while engaged in an act closely related to his duties, it is necessary to afford thicker protection than in the case of an ordinary illness or death; therefore, exceptionally, where there are special circumstances such that the commute can be regarded as having been under the employer's control and management, it should be considered an occupational accident. According to the evidence examined, the deceased worked as a mold worker in the casting production division at Iljin Metal; Iljin Metal is a business that manufactures molds by melting iron in a furnace, and has 15 male and 3 female employees, with working hours from 08:30 to 17:10; however, in order for employees to be able to begin work immediately upon arrival, someone had to come early in the morning to light the furnace, so the four casting production employees, including the deceased, took turns coming in early one week per month, and on the day of the accident, it was the deceased's turn to perform this duty. At the time, the deceased resided with his family at (address omitted), Buk-gu, Busan, and commuted to and from Iljin Metal in Hakjang-dong in the same Gu; when going to work, since the company bus did not come, he used a city bus, and only used the company bus when returning from work. In order to go to work by city bus, the nearest bus stop to Iljin Metal was located near Juryeo Rotary in the same Gu, approximately 800 meters away, requiring him to walk across two crosswalks. The area around Hakjang-dong where Iljin Metal is located is the so-called Sasang Industrial Complex area of Busan, where there is almost no pedestrian traffic late at night or in the early morning, but vehicle traffic is considerable; from late at night, the stop signals at crosswalks are turned off and only flashing lights remain on, so vehicles drive very recklessly, making it difficult for pedestrians to cross; nevertheless, Iljin Metal took no measures such as paying taxi fares to enable employees who had to come in early in the morning to travel close to the workplace. On the day of the accident, the deceased set out for work at around 04:30, but since he could not afford to take a taxi, he took a city bus and got off at a stop near Juryeo Rotary, approximately 800 meters from Iljin Metal, crossed one crosswalk, and while crossing another crosswalk near Iljin Metal, was struck at around 05:20, at a point approximately 200 meters from Iljin Metal, by a vehicle that fled the scene, and died on the spot; at that time, there were almost no pedestrians, and even the vehicle responsible could not be identified. In light of the circumstances of this accident, the time and location of the accident, and other facts as found above, it must be considered that there existed special circumstances such that the deceased's death may be regarded, in substance, as an occupational accident of Iljin Metal.
2. An "occupational accident" as provided in Article 3(1) of the Industrial Accident Compensation Insurance Act (산업재해보상보험법) means an accident arising in the course of the performance of the relevant work duties, or the ordinary activities incidental thereto, under the employer's control and management, based on the employment contract between the employee and the employer. Therefore, although an employee's commuting act is closely and inseparably related to the work of providing labor, generally the choice of the method and route of commuting is left to the employee, and thus it cannot ordinarily be said to be under the employer's control and management. Accordingly, in order for an accident occurring during an ordinary commute to be recognized as an occupational accident, it must be a case in which the employee's commuting process can be regarded as being under the employer's control and management, such as where the employee uses transportation provided by the employer or uses transportation equivalent thereto as arranged by the employer (see this Court's Decisions 92Nu13073, delivered on January 19, 1993; 92Nu11497, delivered on January 26, 1993, etc.).
Looking back at this case, even if, as found by the court below, the deceased had to come to work early on a rotating basis due to work necessity, and on days when he came to work early it was inevitable for him to take the city bus from his home and then get off and walk to work as described above, such circumstances alone are insufficient to find that the deceased's commute was under the employer's control and management, and thus it is difficult to say that there existed special circumstances such that the accident during this commute could be regarded as having occurred under the employer's control and management. Accordingly, it cannot be recognized as constituting an occupational accident.
The judgment below, having held otherwise, is in error, having misapprehended the legal principles regarding occupational accidents under the Industrial Accident Compensation Insurance Act, and the ground of appeal pointing this out has merit.
3. Therefore, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the judgment.
Supreme Court Justice Kim Seok-su (Presiding Justice), Choi Jae-ho (Justice in charge), Bae Man-un, Choi Jong-yeong