출퇴근 재해에 관한 헌법재판소 판례 비평 - 대상판례: 헌법재판소 2016.9.29. 선고 2014헌바254 -

Abstract

Article 37, Cause 1, item 3, sub-item ‘Da’(hereafter, Target Article) in the current Industrial Accident Compensation Insurance Act (hereafter, IACIA) is described as follow: Clause 1 on Article 37: If a worker suffers any injury, disease, or disability or dies due to any of the following causes, it shall be deemed an occupational accident: Provided, That this shall not apply where there is no proximate causal relation between his/her duties and the accident: Sub-item ‘Da’: Any accident that occurs while he/she commutes to or from work using a transportation means provided by his/her business owner or other similar means under the control and management of his/her business owner. However, in 2016, Constitutional Court decided the Target Article is unconstitutional(hereafter, Target Decision) because it defines occupational accident only during the commuting under the control of the employer. According to this interpretation, the worker who has industrial accident compensation insurance, and commute on their foot, private/public transportation or the equivalent thereof (hereafter, non-benefit worker) tends to not being regarded as they are not under the employer’s control; thus the accident during the commuting(hereafter, ordinary commuting accident) cannot be categorized as the occupational accident, while they are same with other workers who commute by the transportation, which employer had provided or the equivalent thereof (hereafter, benefit worker). As such, discriminal treatment by the means of commuting seems economically afflict non-benefit worker, and against the Constitutional Principle of Equality. Target Decision appears to admit the unconstitutionality of Target Article, and enabled the possibility of reviewing rational interpretation by legislations on commuting accident. However, it failed to assess The Article on IACIA and Supreme Court’ Decision; hence, poses the limitation that it could not grasp the right on Constitution. At first, rules in IACIA say it is possible to cause the result of discrimination in considering the Target Decision; but, Constitutional Court, regardless IACIA has the comprehensive structure not just for the commuting accident, missed to review the possibility of supplementation with other rules in IACIA. In essence, the Target Decision simply captured that the Target Article is against to the Constitutional Principle of Equality, rather than analysed the structure of IACIA. When it comes to the Supreme Court’s Decision, although the distorted view on commuting accident by Supreme Court has been continued regardless of the existence of Target Article, not only theory could not support, but also Constitutional Court judged that restrictive interpretation is unfair because of the Target Article under the current IACIA without analysing the previous precedents by Supreme Court. Lastly, Article 34 in Constitution aims the right of life as a human being and effort by government in aspects of social security and welfare. Notwithstanding the details of its context is defined upon the process of legislations; however, it is a procedure to actualizing the spirit of Constitution, not creating. In this regard, the Target Decision seems to apply the Principle of Equality without any considerations on worker’s Constitutional Fundamental Human Right: Right of Social Security on commuting accident.