출퇴근 재해에 관한 판결의 부당성-대상판결 ― 대법원 2007.9.28. 선고 2005두12572 전원합의체 판결 ―


Unfairness of the Supreme Courts’ Judgement on Commuting Accidents


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Recently, the importance of introducing legal provision that ensures the compensation for commuting accidents is now emerging as one of the hottest issues in policy making. For a long time scholars have been in agreement on admitting commuting accident as occupational accidents, but legislations and court cases consistently have shown differences from them. For example, most of precedent cases firmly denied the commuting accidents as occupational accidents with one exception where he/she is in under the status of employer's control and management. Later, the control and management theory was broadened into “limited interrelate impartiablity” and “conventional passage and methodology” was suggested. Among them, dissenting opinion made a great advancement in this case supporting that “principle interrelate impartiablity”. In the meantime, the actual ruling has been stuck to the “employer's control and management status”, which has been the yardstick with which Supreme Court use which needs to be examined further. First of all, the problems of this case so far is as follows: 1. violation of interpreting the positive law 2. ignoring the interpreting of interrelate impartiablity 3. misunderstanding the social security right 4. ruling based on policy 5. misunderstanding the principle of equality 6. lack of consistency in its logic. As the cases mentioned above are serious, this study examines the unjust cases and presents rational alternatives. To examine further, this case violated the positive law as they ignored the interpreting the positive law itself. And this case admitted that commuting is related with duties but denied its relation with the occupational accidents as it is not under the control or management of employer. Accordingly, employees' family is entitled to have compensation and funeral expenses as they are basic necessities for life guaranteed by the Constitution and Industrial Accident Compensation Insurance Act. Plus, even though government can add beneficiary optionally in terms of welfare right but the cases must be dealt by the same standard unless they are in the same category. Finally, although commuting, business trip are not occupational work, it is certain that they are closely related with it. Accordingly, we should apply the law based on the universal validity, not by enforcement regulations which are invalid.


Ⅰ. 서론
 Ⅱ. 대상판결의 내용
 Ⅲ. 대상판결의 부당성
 Ⅳ. 결론


  • 박승두 Park, SeungDu. 청주대학교 법과대학 교수.


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