출퇴근 재해 헌법불합치결정의 소급효 — 대법원 2021. 6. 10. 선고 2016두54114 판결을 중심으로 —

Abstract

The Supreme Court ruled on April 14, 2014, before a commuter accident was newly established under the former Industrial Accident Compensation Insurance Act (hereinafter referred to as the “Industrial Accident Insurance Act”) on June 10, 2021. According to the Industrial Accident Insurance Act at the time, in order for an accident that occurred while commuting to work to be recognized as a work-related accident, it had to be “an accident that occurred under the control of the employer, such as using transportation provided by the employer or equivalent.” The Plaintiff filed an application for medical care benefits with the Korea Workers’ Compensation and Welfare Service (Defendant) based on Article 37(1)1(b) of the Industrial Accident Insurance Act (accident caused by defects in facilities), but was denied medical care by the Defendant on May 28, 2014. The Ulsan District Court (April 28, 2016) and the Busan High Court (September 28, 2016) also dismissed the accident on the grounds that it was difficult to regard it as a defect in the company’s facilities or during commuting under the company's control. The Supreme Court acknowledged the case as a retroactive effect of the constitutional nonconformity decision on Article 37(1)1(d) of the Constitutional Court's former Industrial Accident Insurance Act on September 29, 2016 (accident that occurred under the control of the employer). In this paper, I first look at the process of describing the case outline and summary of the Supreme Court ruling in this case, and then changing the issue to a commuting accident after the Constitutional Court’s decision on September 29, 2016. Subsequently, by analyzing the contents of the Constitutional Court’s decision on constitutional inconsistency on September 29, 2016 and the decision on constitutional inconsistency on September 26, 2019, the issue of the retroactive effect of commuting accidents is raised. For this argument, the type and effect of the Constitutional Court’s constitutional nonconformity decision are examined, focusing on the theory of the retroactive effect of the constitutional nonconformity decision, and then the validity of the retroactive effect of the judgment in this case is reviewed.