업무상 재해 인정기준의 한계와 새로운 논의 - 업무상 재해의 개념과 업무상 질병의 인정기준을 중심으로 -

Abstract

In terms of the annals of legislations, more specifically, Industrial Accident Compensation Insurance Act (hereinafter "IACIA") becomes the root of the social insurance law and is naturally bound up with labor relations as called Workers’ Compensation Act. Moreover the development of industrial technology and the atmospheric shifts of labor market brought new kinds of industrial accidents. Hence, IACIA is the foremost challenge that we face to keep social security laws abreast of the changes in the labor market. To cope with these novel issues, social welfare system is now forced to innovate not only in its structures but also in its legal frames. Particularly, due to the idiosyncrasy of new occupational diseases, the burden to establish the legal elements of "occupational" in the IACIA has been graver. Besides, due to the mental or physical overloads, new species of disease surfaced. The pre-existing theories or the industrial standards of the occupational hazards have revealed the limitations. To meet the legal elements of occupational disease, including causation, a discussion on the new definition of "occupational" has been called for. To begin with, the norm of employment in the IACIA constructs the basis to the legal definition of "occupational," which is the performance of the insured what the law is to protect. Employment means the work for which one has been hired and is being paid by an employer. In other words, it indicates the performance arising out of a work contract, contributing to a workplace, carrying out the employer’s instructions, and what the IACIA meant to protect in the end. Unfortunately, it is not easy to discern whether the employment has been provided in pursuit of the employer’s benefit for the purpose of determining the new species of occupational diseases. Neither is it always clear to say that such action is foreseeable in the course of employment to the extent that both parties to the work contract would have agreed upon. Namely, the action of the insured, which is subject to the IACIA, should be considered differently from the employee’s responsibility for his decision or from the legal elements of his liability. This thesis shows that the accident in the IACIA 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 aspectsof the workers’ compensation, thereupon this study argues that the legal aspects of the IACIA also be coherently construed in that sense. The workers’compensation laws 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 apportioning manner of burden of proof and on the norms of employees an actor of the IACIA at the same time. Not until are these legal questions answered, the genuine protection from the industrial accidents, the original statutory purpose of the IACIA, may be far-fetched.