임신 근로자 태아의 건강손상 시 산재보험 적용방안에 관한 연구 – 민법적 ‘상당인과관계설(Adäquanztheorie)’의 적용과 사회법적 ‘중요조건설(Theorie der wesentlichen Bedingung)’의 비교 관점에서 –

In 2009, a discussion was made about the “application plan for industrial accident insurance when a pregnant woman suffers a health loss” triggered by a “birth” or “heritage” of a congenital heart disease child who was pregnant while working as a worker in Jeju Medical Center. Last on the 2020. 4.29. The “interpretational” solution has reached a decisive turning point with the Supreme Court's “Judgment on the Complaint Disposal of Nursing Care Application (Supreme Court 2016두41071)”. The Supreme Court's ruling was one of the main issues related to this issue, and it was recognized in German law as a similar case when a fetal health injury occurred as a result of a disease that a mother acquired while she was pregnant. As it was said, it is important in that they judged them to be compensated according to occupational accidents under the Industrial Accident Compensation Insurance Act in view of ‘natürliche Einheit’. On the other hand, despite the ruling, in this situation, there are no relevant legislative provisions. The issue of proof (responsibility) remains an issue. In addition, related legislation is automatically abolished at the end of the 20th National Assembly, compensating for the limitations of the court's interpretative approach, and the ultimate legislative solution is required for legal stability. Unlike the ‘adequacy theory (Adäquanztheorie)’, which developed from the existing causal theory of causality in relation to ‘the application of industrial accident insurance when the health of a pregnant worker's fetus is damaged’, this paper has been widely applied in German and Austrian labor law and social law. From the point of view of the so-called ‘Theorie der wesentlichen Bedingung (theory of major condition criteria)’, we intend to present the new issue by ‘reorganizing’ the legislative measures that have been discussed. While civil causality theory is applied to limit the scope of compensation in causality that usually fulfills liability, workers' compensation is a worker's act as a business activity, is it within the scope of the risk area to be protected under the Industrial Compensation Insurance Act? There is a need to supplement the limitations and problems of the existing causality as a key point. It is believed that the Supreme Court's ruling showed the possibility of moving in that direction. Unlike the liability-insured ‘writhing theory (Zurechnungstheorie)’, which is derived from the legal relationship between the two parties, industrial accident insurance is primarily carried out in ‘Unfallskausalität’ in the causality of accidents (Unfallskausalität) according to the social norm ‘standard purpose teaching (Normenzwecklehre)’ The so-called responsibility-related causality (haftungsbegründende Kausalität) and the secondary ‘causality of damages’(Schadenskausalität) and the ‘compensation’relationship with it, that is, fulfillment of responsibility. It can be divided into causality (haftungsausfüllende Kausalität), and this paper intends to emphasize the need to approach this from a loss compensation perspective that fits the characteristics of the industrial accident insurance act and the purpose of the legal norm, beyond the compensation act. In particular, this study goes beyond the existing theory of causality in the civil law, which is an abstract and general law norm, in terms of compensation for occupational accidents in light of the case of the industrial accident insurance application method of the pregnant worker's fetus. We would like to compare and examine the application method of ‘theory of major condition criteria (Theorie der wesentlichen Bedingung)’ and its significance and issues.