산업재해 인정기준의 현대적 과제 ― 산재보험법상 업무범위와 심리적 부하의 기준을 중심으로 ―

Industrial Accident Compensation Insurance Act (hereinafter “IACIA”) is the foremost challenge that we face to keep social security laws abreast of the changes in the labor market. Moreover, 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. 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. The legal definition of “occupational” is the performance of the insured and 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. Due to the idiosyncrasy of new occupational diseases, the burden to establish the legal elements of “occupational” in the IACIA has been graver. Accordingly, the necessity to apportion the burden to prove the recognized statutory standards has been profoundly compelled. At least, when the cause is hard to ascertain as in tort litigation in which the offender is not known or as in environmental litigation, the burden of proof can be mitigated or shifted. Worker’s compensation is also a form of insurance after all so that the Workers’ Compensation and Welfare Service, as an insurer, has duty to adjust or allocate the burden of proof for the employer, the insured and the employee, the subscriber. The notion of employee needs to be reexamined considering that the establishment of legal elements of employment in accordance with IACIA 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. As a result, it is possible to recognize work-relatedness in the cases of new occupational diseases only if such norm is established. Not only that but also the established statutory notion of “employee” helps adjusting the employer’s personal liability which bases on the principles of civil damages.