휴게시간과 업무상 재해

Abstract

Under the current law, in order to recognize an accident that occurred during ecess hours as an occupational accident, the accident is required to occur under the control and management of the business owner. However, factors such as ‘social notions’ and ‘reasonable and necessary acts’ that have been suggested by theories and precedents as detailed factors to judge this are standards that can be interpreted in an extremely abstract and diverse way. Therefore, it is often seen that different results are produced by different courts in similar cases, or that the contents of decisions made by higher courts and lower courts are opposed to each other in particular cases. As a result, this irrationality not only causes the parties to work to lose predictability, but may eventually result in a flaw in legal stability. Based on this problem awareness, the purpose of this study was to summarize and analyze the criteria set forth by theories and precedents so far to recognize accidents during recess as occupational accidents and to review their validity. The principle of free use of recess hours is not to prohibit the employer's involvement or restriction in breaks. Rather, it should be said that restrictions are possible on the basis of the worker's duties, especially the various obligations under the rules of good faith. Therefore, on the basis of this principle, accidents that occur during recess cannot be regarded as occupational accidents. On the contrary, considering the nature of the disaster compensation system, the purpose of the recess hour system, and similarities with accidents on commuting, it is necessary to further ease the existing criteria for judgment. On the other hand, various criteria can be presented in addition to the various judgment criteria that have been presented so far to recognize accidents that occurred during recess as occupational accidents. However, it is not possible to select only a few criteria and use them as a fixed and uniform basis, given the culture of the workplace, the size of the entity, the occupation of the workers, and the diversity of duties. However, no matter what criteria are presented in the future, the social necessity of “the principle of free use of recess hours and the possibility of restriction”, “the limitation of the principle of liability without fault of employer”, and “the guarantee of workers' right to survive” should be considered simultaneously in the process.