사회보험피보험자로서의 근로자개념

Abstract

Industrial Accident Insurance is the first social insurance in Korea, first legislated on November5th 1963 and has implemented since July 1st 1964. When it was first introduced, the insurance program was applied only to the business in mining and manufacturing sectors with 500 or more employees, which amounted to about 80,000 business places. In 1992, the coverage expanded to the business with 5 or more employees. In July 2000 it finally covers all businesses with one or more employees. A major change of <Industrial Accidents Compensation Insurance Act> is made on December 14th 2007 in reflection of the tripartite agreement. The changes include adding grounds for the rehab benefit, coverage of special type workers and clear standards of recognition of occupational accidents.  Enforcement Decree and Enforcement rules for the Act are also amended. According the amendment, the exception provisions under its Enforcement Decree was enacted for those who supply labor services similar to workers and need protection from occupational accidents because <Labor Standard Act> is not applicable to them. Like as, Insurance planner, Driver of concrete mixer truck, Teachers of the study aid and Golf caddy. But concrete definition of worker is not presented at <Industrial Accidents Compensation Insurance Act>. It has to be discussed whether it is the same concept as the worker in the Labor Standard Act. (eg. Regardless of the type of job, those who provide businesses with labor to earn wage)While the accident compensation rule under <Labor Standards Act> requires the number of regular workers, <Industrial Accidents Compensation Insurance Act>’s criterion is not based on the fact that they are workers, but follows the risk rate intrinsic in the business. For instance, a special type worker, who are not commonly considered a regular worker might be covered under Labor Standards Act when he is recognized as a worker belongs to the business. Meanwhile, Industrial Accidents Compensation Insurance Act considers the riskiness of the business as well as the characteristic of the worker. The notion of employee as the insured needs to be reexamined considering that the establishment of legal elements of employment in accordance with <Industrial Accidents Compensation Insurance Act>. It is not limited to the individual labor contracts. On the contrary, the common norm of employee in social laws derives from the actual work relations as to the one in labor laws does from the work contracts. The accident in <Industrial Accidents Compensation Insurance Act> is the subject of protection for the applicable party by distributing his accountability to others, not the subject of personal liability by having the said party held responsible. This joint liability principle is explained with the social welfare aspects of the workers’ compensation. The Industrial Accidents Compensation Insurance Act will continue to call for consistent changes and responses to them to meet the practical needs. In such changes, this study also contemplates on the norms of employee as the insured of <Industrial Accidents Compensation Insurance Act>. When the legal definitions of the workers as the insured answered, the genuine protection from the industrial accidents, the original statutory purpose of the <Industrial Accidents Compensation Insurance Act>, may be far-fetched.