공제급여 산정시 피공제자의 기왕증 참작 및 과실상계를 허용한 「학교안전사고 예방 및 보상에 관한 법률 시행령」 제19조의2 제1항 내지 제3항의 효력

Article 19-2(1) or (3) of the Enforcement Decree of the Act on the Prevention of and Compensation for Accidents at School (hereinafter “the pertinent provisions of the Enforcement Decree”) grants consideration of a mutual aid beneficiary’s medical history and comparative negligence when calculating the amount of mutual aid benefit pursuant to the Act on the Prevention of and Compensation for Accidents at School (hereinafter “School Safety Act”). The Supreme Court previously held that consideration of medical history or comparative negligence was impermissible unless otherwise specified by law on the ground that the underlying purpose differed between the mutual aid benefit system under the School Safety Act and the tort damages system under the civil law (see Supreme Court Decision 2011Da111961, Dec. 13, 2012). Provided, however, in the 2012 Supreme Court Decision, supra, it did not appear as if the Court rendered judgment on whether the pertinent provisions of the Enforcement Decree were in fact invalid without delegation by the primary law applicable, due to the school safety-related accident having occurred prior to April 1, 2012 when the relevant provisions came into effect. Accordingly, notwithstanding the aforementioned judicial precedent, the School Safety Mutual Aid Association (hereinafter “SSMA”) had been granting consideration of a beneficiary’s medical history and comparative negligence when calculating the amount of mutual aid benefit, and up until the subject case, the lower court judges were divided on the matter. In the subject case, the key issue was to determine whether the pertinent provisions of the Enforcement Decree were either prescribed without delegation by the applicable law or exceeded the scope of the delegated applicable provisions and therefore deemed invalid. The dissenting justices stated that the said provisions were valid inasmuch as the School Safety Act, being the primary applicable law, provides that “[t]he purpose of the Enforcement Decree shall be to prescribe matters as delegated by the Act” (see Article 1 of the School Safety Act). However, as set forth in the Majority Opinion, the pertinent provisions of the Enforcement Decree were regarded as going beyond the scope of the delegated applicable provisions and thus deemed as invalid provisions based on the following reasoning: (i) the mutual aid benefit system and the damages system are inherently different; and (ii) direct compensation under the system by the SSMA for any injury, etc. suffered by a mutual aid beneficiary involving a school safety-related accident constitutes a type of performance of legal obligation, thereby supporting schools in maintaining a safe environment that is conducive to learning. Meanwhile, in his concurrence, Justice Kwon Soon-il expressed that the legal nature of payment of mutual aid benefits under the School Safety Act contained a mixture of public and private law elements, and that the lawsuit seeking such payment by focusing on the elements of public law constituted a party litigation under the public law. Nonetheless, as stated in the Majority Opinion, the Supreme Court affirmed the judgment of the lower court that followed the existing practice of law and accordingly tried the instant case as a civil suit.