산재보험법 제87조 제1항 본문에 따른 구상권 행사에서 ‘제3자’ 판단기준: 위험공유론 — 대법원 2026. 1. 22. 선고 2022다214040 전원합의체 판결을 소재로 —

초록

Article 87(1) of the Industrial Accident Compensation Insurance Act allows the Korea Workers' Compensation and Welfare Service (COMWEL) to be subrogated to an injured worker's damages claim where an occupational accident is caused by a “third party.” The Supreme Court long understood this “third party” as one having no direct or indirect insurance relationship with the injured worker - an approach criticized for producing inconsistent outcomes where parties share the same workplace risk yet lack a formal insurance relationship, as in the lease of construction machinery with an operator's labor. In the Decision 2022Da214040 (Jan. 22, 2026), the Court abandoned this insurance- relationship theory for a “risk-sharing theory,” under which third-party status turns on whether the tortfeasor and the injured worker share the same risk inherent in the business or workplace, thereby unifying the criteria of the main text and the proviso. Analyzing the decision's opinions, the relevant scholarship, and the German theory of risk, this article argues that the theory applies consistently to self-employed workers, agency workers, and platform workers. It nonetheless criticizes the Court's reliance on “incorporation,” which in agency worker law denotes integration into the work organization - distinct from whether the risk arising in the same work is jointly borne. The proper criterion is the latter; on this view the proviso becomes merely confirmatory, warranting reconsideration of its retention.

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