On September 29, the Constitutional Court of South Korea made a decision on unconstitutionality of Article 37-(1)-1-(c) of Industrial Accident Compensation Insurance (by 6 majority and 3 dissent) prescribing and at the same time restricting commuting accident as the reference provisions:
Article 37 (Standards for Recognition of Occupational Accidents)
(1) 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 relationship between his/her duties and the accident: <Amended by Act No. 9988, Jan. 27, 2010>
1. Accident on duty:
(c) Any accident that occurs while he/she commutes to or from workusing atransportation means provided by his/her business owner or other similar means under the control and management of his/her business owner
The decision by the Constitutional Court was made based on the following reasons:
1. A discrimination exists between workers who use public transportation and those who use transportation provided by the employer, considering that all workers are policyholder at the same time.
2. Importance of securing industrial accident victims and their families’ living is growing; Including commuting accidents to industrial accidents that can be covered by the insurance corresponds well to its objects.
3. The ILO advised to make provision for commuting accident in the definition of ‘industrial accident’ in ‘C121 – Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121).’ Germany and France has long been recognizing commuting accident as industrial accident, and Japan also has made provision for commuting accident.
4. There is indication of problems that may occur, such as aggravation of industrial insurance finance or increase of insurance fee paid by the employers. However the problem can be solved by recognizing commuting accident as industrial accidents restrictively based on a consideration whether the commuting was made by a reasonable route and transportation.
5. The current provision arbitrarily discriminates the non-benefits by causing economic disadvantage, and is against the Constitutional right of equality. Thus, the constitutional discordance adjudication is decided on the provision; The Court orders to apply the current provision until new legislation is made, due December 31, 2017.
Full Court Decision (Korean text) can be read at: http://search.ccourt.go.kr/ths/pr/selectThsPr0101List.do
- Case: 2014Hun-Ba254, September 29, 2016
** when searching type this case number: “2014헌바254”
Korean Labor Law - Briefs 