S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 40, Number 2 (2000)
업무상 재해의 인정기준에 관한 판례의 경향 -판례요지의 쟁점별 정리를 중심으로-
Review of the Supreme Court`s Test for Occupational Accident
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.40 No.2, pp. 182-206
- This Article attempts to clarify the initial determinant of the Supreme Court's test for occupational accident(OA) especially with respect to controversial issues, i.e., occupational injuries, commuting injuries, injuries on business trips, death caused by excessively heavy burden, occupational illnesses, and to suggest alternative judicial test for OA to effectively guarantee worker's right to receive OA insurance benefits under rapidly changing industrial workplace-environment. Through examining relevant the test for OA during 1990-1999 in the light of the statutory goal of the Industrial Accident Compensation Insurance Act(FACIA), the author points out the coherent tendency of the test for OA as follows : In order to meet requirements for OA “resulting from employment” in the FACIA(Art. 4, 1.), it must be both “caused by duties” which means that the one case has a proper casual relationship with the worker's duties and occur “in the course of employment” which means that the worker is under the employer's control and management. The above formula could be more flexibly applied depending on the facts of each case ; in case of occupational injuries, its “occurring in the course of employment” might be initial determinant for OA and in case of occupational illnesses or death caused by excessively heavy burden, its “being caused by duties” should be decisive factor for OA. The author analyzes that background-thinking of the test which makes “the employer's control and management” to be basic criteria of judging whether occupational injuries occur “in the course of employment” is originated from the principle of liability based on fault, and this kind of orientation of the test is contradicted to fundamental doctrine of liability without regard to negligence under FACIA. Therefore, he argues that the criteria of “the employer's control and management” should be replaced by new concept of “inevitability in pursuing employment” or “inseparableness from employment” according to legal principle of social security law. From perspective of the test, commuting injuries except when the employer's business is engaged in during the commutation should not be recognized as OA, because commutation is beyond “the employer's control and management. However, the author contends that commuting injuries by a reasonable route and means should be regarded as OA, because nowadays commutation is not only indispensable for pursuing employment in reality but also “inseparable from employment” in terms of new criteria. Futhermore he underscores that, contrary to the test, the employer should prove against occupational illnesses and in case of unclear cause of death on or near the job, the appropriate casual relationship with the duties should be judged not on the simple medical basis but on the legal basis considering need of protection in the light of spirit of social security law.