통근재해에 대한 헌재결정 분석― 2012헌가16 헌재 제37조 제1항 제1호 다목 위헌제청 ―

Constitutional Court of Korea decided that the regulation of commuing accidents in workers' compensation law is accordance with the Constitutional law based on the nature of workers' compensation law that has the nature of liability insurance. This article analyse the problems of this decision made by Constitutional Court of Korea. First, from a view of social rights, the nature of workers' compensation law is the nature of social security that protects the life of employee and the other members of family. When the commuting accident happens to employee, this accident should be protected by workers' compensation law for being in accordance with the nature of social security. Second, If the workers' compensation law has the nature of liability insurance. the employee has the status of the insurant and the insured. So the employee is paying the contributions for the institution of workers' compensation. Therefore, the employee has the authority to decide the scope of social risk. The scope of social risk contains the commuting accidents because they are close associated with the employment.