임신 중 여성 근로자의 장애아 등 출산에 대한 사회법적 보호 — 법원의 판결례와 국회 입법안을 중심으로 —

The accident such as the birth of children, who have congenital heart defects occurring in toxic substance of establishment, shows a serious deficiency in the current Industrial accident compensation insurance act. The current act is applied exclusively to only workers who are alive and so have the capacity of enjoyment of rights, so that the children born to be ill because of the harmful environment, where their mothers worked, can not receive the benefits of the industrial accident insurance. The workers who are mothers of the children suffered in the congenital heart defects claimed the compensation of the industrial accident insurance to the Korea workers’ compensation and welfare service, and the service agency rejected the claims because the children were not the workers when the industrial accident occurred in their mothers. The administrative court annulled the decision of the service agency because the children were workers in their mothers’ wombs as the one entity and if the claims of the mothers of children were not received, the mothers’ rights to equality in the Constitutional law would be violated. The high court, however, reversed the judgement of the administrative court because the current industrial accident insurance law definitively regulates that the beneficiary is the worker alive, and there are no comparison target so that the violation of rights to equality in the Constitutional law was not admitted. Thus, the best solution to this conundrum is to amend the Industrial accident compensation insurance act to recover the blind spot. There are three legislation bills, one of which was discarded. They can be very useful references to direction of development in the industrial accident insurance law, and Lee Jung-Mi bill are specially notable. That bill admits the fetus’ capacity of enjoyment of rights and recognize the children as workers legislatively. In addition, the industrial accident insurance is the subsequent remedial measures, so that there have to be the far-reaching reform to improve the maternity protection in the labour and social security acts.