업무상 질병의 인과관계 귀속 및 그 증명책임

In many countries the workers’ compensation systems replace employers’ tort liability. Now occupational injury or disease are compensable under worker’s compensation law, although there are some differences among the legal systems. As compared with occupational injuries, the burden of proof on causation will be more critical in the area of occupational disease. Because an injury by accident arises from a definite event and normally immediately, while the latter develops gradually over a long period of time. Despite some minor variations, all the worker’s compensation place on the claimant the burden of proof on causation. European, especially German and French systems of worker’s compensation provide a schedule of specific compensable diseases and accompanying job processes. If the disability or death is caused by one of the diseases mentioned in the schedule, and the disease is due to the nature of the corresponding employment as described in the schedule, some form of a presumption in favor of the claimant to shift the burden of production. In Japan such a presumption is not recognised by statute, but regulations of Ministry of Health, Labour and Welfare allow for in facto presumption, which is common in Korea. Although the relaxation of burden of proof is observed in all the country, shifting of burden of proof is continuously demanded. Also the dissention opinion of the Korean Supreme Court supported shifting of burden of proof. In this article it will be discussed whether estimation of causality and its burden of proof should be adjusted to employee’s advantage.