(b) Occupational death;

(c) Violation of the Road Traffic Act;

2.(a)(c) B

3.(a) C Co.

Defendant A shall be punished by a fine of KRW 10 million; Defendant B shall be punished by imprisonment for August; and Defendant C shall be punished by a fine of KRW 3 million.

However, with respect to Defendant B, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

To order Defendant B to attend a compliance lecture for 40 hours.

To each order Defendant A and Defendant C to pay an amount equivalent to the above fines.

A. misunderstanding of facts or misunderstanding of legal principles

1) Whether the victim E bears the duty to take measures to prevent danger under the Occupational Safety and Health Act (the violation of the Occupational Safety and Health Act due to the death of the worker against the defendant)

The duty of business owners to take measures to prevent danger under the Occupational Safety and Health Act is recognized only for their employees. Defendant C Co., Ltd. (hereinafter referred to as “Defendant C”) committed an act in the workplace where the victim who is a construction machinery operator or his employee was dispatched to the workplace where the victim was located in Jcheon-gun D (hereinafter referred to as “instant workplace”). Since the victim was employed by G other than Defendant C, Defendant C and its employees did not establish a crime of violation of the Occupational Safety and Health Act (Articles 71, 66-2, and 23(2) of the Occupational Safety and Health Act) on the ground that the Defendants were dead due to the violation of the duty to take measures to prevent danger. However, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, which affected the conclusion of the judgment.

2) Whether there is a violation of the duty to take measures against danger under the Occupational Safety and Health Act and a proximate causal relation (the violation of the Occupational Safety and Health Act due to the death of workers against the defendant and the occupational negligence of the defendant A and B)

The accident of this case occurred while the victim was moving to a level slope topography, not a work road, around 06:15, prior to the work hours (07:00 to 18:00) determined by the defendants. Considering the time and circumstances of the accident, etc., the defendants violated Articles 199 and 38 of the Rules on Industrial Safety and Health (as to the duty to take measures, such as prior investigation of the topography and ground conditions of work site, preparation of a work plan for the route and work method of construction machinery operation, etc., preparation of a work plan for the occupational safety and health standards, placement of construction machinery guides, prevention of ground subsidence, etc.) and there is a proximate causal relation between the violation and the accident of this case. However, the judgment of the court below convicts the defendants of this part of the facts charged on a different premise, by misunderstanding the facts or misunderstanding the legal principles, which affected the conclusion of the judgment.

3) Whether Defendant A was intentional (the violation of the Occupational Safety and Health Act due to the death of an employee)

Considering the fact that Defendant A, the representative director of Defendant C, only had Defendant B, the field director of the instant place of business, directed and supervise the work at the instant place of business, and had not been located in the instant place of business or in a position to make a specific report or decision on safety measures on the individual work, Defendant A cannot be readily concluded that Defendant A had an intention to commit a violation of the Occupational Safety and Health Act due to the death of an employee. Thus, the lower court erred by misapprehending the legal doctrine or by adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below (Defendant A: 10 months of imprisonment and 2 years of suspended execution, Defendant B: imprisonment with prison labor and 1 year and 2 years of suspended execution, community service work 160 hours, 40 hours of compliance driving lecture, Defendant C: fine of 5 million won) is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. As to the duty to take measures to prevent danger under the Occupational Safety and Health Act

1) A crime of violation of Articles 66-2 and 23 of the Occupational Safety and Health Act is premised on the duty of an employer to take safety measures to protect his/her employees. As such, there is a substantive employment relationship between an employer and his/her employees. The existence of a substantive employment relationship here does not depend on the form of an employment contract, such as an employment contract or a contract, but, in substance of labor, the actual employment relationship may be recognized only when the employer recognizes the provision of labor to an employer in a subordinate relationship (see, e.g., Supreme Court Decision 2010Do2615, Jun. 24, 2010

2) The following facts revealed through the evidence duly adopted and examined at the court below: ① the victim was a worker employed by G operating a construction equipment leasing business with the trade name of Q Q; ② the defendant C was provided with the victim, who is a construction machinery, from G, and paid expenses to G depending on the number of days used at the instant workplace; ③ from December 2, 2015, G was leased to the instant workplace from the investigative agency to the victim, and did not separately prepare a written contract. From the victim’s report on the defect in equipment or the cost of consumption, etc., it was not reported only once to the instant workplace; ② the victim, who is the site manager of the defendant C, was visited at the instant workplace one to two times a month; ② the victim’s order for work was entirely instructed to the victim; ④ The defendant B and the investigative agency did not err by misapprehending the legal principles on the premise that the victim provided labor to the victim, which is the victim’s dependent relationship, and thus, the defendants did not appear to have been guilty.

B. As to whether there exists a proximate causal relation with the violation of risk prevention measures obligation under the Occupational Safety and Health Act

1) Under Article 23(4) and (2) of the Industrial Safety and Health Act, a business owner shall take necessary measures, such as placing leading persons, preventing the subsidence of the ground, preventing the collapse of the side, and maintaining the width of the road, etc., in cases where the work by using a vehicle rolling stock is likely to cause danger to workers due to the malfunction of the machinery or the decline of the machinery (Article 199), and shall conduct a prior survey on the geographical and ground conditions of the workplace in order to prevent any danger to workers, such as the fall of the rolling stock, and the collapse of the ground, and shall prepare a work plan on the route and method of the operation of the construction machinery in question and prepare a work plan on the operation of the construction machinery in accordance with the plan (Articles 38(1)3 and 4). Meanwhile, the purport of related Acts and subordinate statutes, such as the Industrial Safety and Health Act, which aims at maintaining and improving the safety and health of workers by preventing industrial accidents, and the above provisions shall apply to the preparation or adjustment of the work in question within the time limit determined by the business owner.

2) The following facts revealed by the evidence duly adopted and examined by the lower court. ① Defendant B instructed the investigative agency to continue to perform the above work on May 13, 2017 at the date of the instant death accident, which was the next day. Defendant B did not intend to answer the scene of the accident or designate the route through it, and did not prepare a work plan for the vehicle-based construction machinery. From 07:00 every day, drivers were working hours from around 07:00, but the victim stated to the effect that “I are going to the scene for verifying the operation of the equipment before the beginning of the work,” ② Defendant B stated that “I would not have received education on the ground or operating route from the business owner”, ③ Defendant C installed the passage of the accident after the death of this case on the ground that the Defendants did not appear to have violated the aforementioned provision by misapprehending the legal principles, and it was unreasonable for the Defendants to have stated that the above Defendants did not appear to have been aware of the safety and health of the safety of the victim.”

C. As to Defendant A’s intentional act

1) A business owner’s violation of Articles 67 subparag. 1 and 23(1) of the Occupational Safety and Health Act is established only where a business owner orders a business owner to take safety-related dangerous work under Article 23(1) of the Occupational Safety and Health Act without taking safety measures as prescribed by the rules on occupational safety and health standards at his/her workplace, or neglects to take safety measures despite being aware of the fact that the above work was performed without taking safety measures, and it is not established solely with the fact that the above dangerous work was performed without taking necessary safety measures at the business owner’s workplace (see, e.g., Supreme Court Decision 2006Do8874, Mar. 29, 2007). If a business owner took safety measures at a workplace without taking safety measures at the workplace, the business owner failed to take such measures without being taken, but failed to take such measures at the workplace, and if the work was performed at the workplace without taking such measures, the business owner did not take such measures individually and specifically, it constitutes a crime (see, e.g., Supreme Court Decision 1001).

2) Various circumstances revealed by the evidence duly adopted and examined at the court below, particularly, Defendant C, including 20 drivers of construction equipment such as the victim, was a company with 40 full-time workers, and Defendant A was at the prosecution’s office and was at the office located in the workplace almost every day in the vicinity of the workplace, and was at least two to three days. At the time of the instant death accident, Defendant A personally left the site at the time of the instant accident. Defendant A did not know that there was a need to take preventive measures such as placement of construction machinery, preparation of a work plan, etc., and stated to the effect that it was known that such measures were not taken at another construction site. In full view of these circumstances, it is reasonable to view that Defendant A did not know that the risk prevention measures as stated in this part of the facts charged were being taken in the instant workplace and that such work will continue in the future, and thus, Defendant A did not have any negligence or negligence, and there is no error in the misapprehension of legal principles or misapprehension of legal principles in the judgment of the court below.

3. Judgment on the assertion of unfair sentencing

The Defendants neglected the duty imposed by the relevant statutes, such as the Occupational Safety and Health Act, to prevent the danger of workers, and as a result, the Defendants’ failure to perform the duty to take safety measures that were discovered after the death of this case, and the details of the crime of non-performance of the duty to take safety measures that were discovered after the death of this case are not less than that of the Defendants. Furthermore, even though there was a criminal record of fines of three times due to the crime of violation of the Road Traffic Act, Defendant B operated a vehicle under the influence of alcohol concentration of 0.124% and caused a traffic accident under the central separation zone, which is very poor in light of the repetition of the crime.

The circumstances favorable to the Defendants appear to have contributed to a certain portion of the victim’s negligence in the occurrence of the instant death accident. The Defendants agreed to provide funeral expenses of the victim’s bereaved family members with approximately KRW 21 million, criminal agreement amounting to KRW 80 million, and the bereaved family members of the victim are expected to receive approximately KRW 110 million, such as the survivors’ compensation annuity, etc. through the industrial accident compensation insurance. Defendant A is the first offender, and Defendant B has no history of criminal punishment exceeding the fine, and there is no history of support for the parents of the aged, denial, and three children.

In addition, comprehensively taking account of the Defendants’ age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, etc. and all the sentencing conditions in the instant records and arguments, each of the above punishment sentenced by the court below is too unreasonable.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act as the defendants' appeal is well-grounded, and it is again decided as follows.

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the statement in each corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant A: Articles 71, 66-2, and 23(2) of the Occupational Safety and Health Act (the death of an employee due to a violation of a duty to take measures to prevent danger), Articles 71, 67 subparag. 1, and 23(1)1 of the Occupational Safety and Health Act (the violation of a duty to take safety measures, such as failure to install a safe passage), Articles 71, 67 subparag. 1, and 23(3) of the Occupational Safety and Health Act (the violation of a duty to take safety measures, such as failure to install a safe passage), Article 268 of the Criminal Act

(b) Defendant B: Articles 71, 66-2, and 23(2) of the Occupational Safety and Health Act (the point of death of a worker due to a violation of the duty to prevent risks), Article 268 of the Criminal Act (the point of death by occupational negligence), Article 148-2(1)1 of the Road Traffic Act, and Article 44(1) of the Road Traffic Act (the point of a drinking practice);

(c) Defendant C Co., Ltd.: Articles 71, 66-2, and 23(2) of the Occupational Safety and Health Act; Articles 71, 67 subparag. 1, and 23(1)1 of the Occupational Safety and Health Act (a violation of the duty to take safety measures, such as non-establishment of a safe passage); Articles 71, 67 subparag. 1, and 23(3) of the Occupational Safety and Health Act (a violation of the duty to take safety measures, such as non-establishment of a safe passage);

1. Commercial concurrence (Defendant A and B);

Articles 40 and 50 of the Criminal Act (the crime of violation of the Occupational Safety and Health Act due to the death of each worker, the crimes of occupational death and death, and the punishment prescribed for the crime of violation of the Occupational Safety and Health Act due to the death

1. Selection of punishment;

○ Defendant A: Selection of each fine

○ Defendant B: Selection of each imprisonment

1. Aggravation of concurrent crimes (defendants);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (In the case of Defendant B, the punishment shall be imposed on concurrent crimes within the scope of adding up the punishment prescribed for the violation of the Occupational Safety and Health Act with heavier punishment and the long-term punishment for the violation of the Road Traffic Act, and the minimum sentence shall be determined by the punishment prescribed for the violation of the Road Traffic Act) of the Criminal Act.

1. Discretionary mitigation (Defendant B);

Articles 53 and 55(1)3 of the Criminal Act

1. Suspension of execution (Defendant B);

Article 62(1) of the Criminal Act

1. Order to attend lectures (Defendant B);

Article 62-2 of the Criminal Act

1. Order of provisional payment (Defendant A, C Stock Company);

Article 334(1) of the Criminal Procedure Act

Judges Kang Gyeong-chan

Judges Yoon Sang-il