SectorRevocation

Litigation Performers**

2. The costs of lawsuit are assessed against the Plaintiff.

A. On March 25, 2017, the Defendant conducted the first test for industrial safety instructors (construction safety instructors) (hereinafter “the first test of this case”).

(b) In cases of the preliminary examination, persons who gain not less than 40 points out of 100 in each subject and an average of not less than 60 points in all subjects shall be selected as successful candidates (Article 33-16 (1) of the Enforcement Decree of the Industrial Safety and Health Act).

C. The Plaintiff applied for the first examination of this case, and the average score was 64 points, which is higher than 64 points, but the joint essential II (corporate diagnosis and guidance) subject points less than 40 points, which are less than 40 points, are less than 36 points.

D. On April 26, 2017, the Defendant issued a disposition of failure to pass the first test of this case on the ground that the Plaintiff acquired points less than the standard points in the jointly essential II (Corporate Diagnosis and Guidance) subject to the Plaintiff.

E. On March 30, 2019, the Plaintiff followed the 9th Industrial Safety Instructor’s first test conducted by the Defendant and passed the second test.

F. On January 6, 1995, the Plaintiff acquired the qualification of a professional engineer for civil works and is exempt from an essential subject subject to the construction safety examination of industrial safety instructors (the second examination of industrial safety instructors) pursuant to Article 52-3(2) of the Occupational Safety and Health Act, Article 33-15(1) and attached Table 12 of the Enforcement Decree of the Occupational Safety and Health Act.

(g) To acquire qualifications as an occupational safety instructor, a third-party examination shall be passed.

[Grounds for Recognition] Descriptions of the absence of dispute, Gap evidence 1, Eul evidence 1 and 9 (including each number), each statement, pleading

The purport of the whole

2. Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

3. Ex officio determination

ex officio, we examine the legitimacy of the instant lawsuit.

In full view of the provisions of Article 52-3 of the Occupational Safety and Health Act, Article 33-14, and Article 15 of the Enforcement Decree of the Occupational Safety and Health Act, even if the first examination was passed by the Plaintiff, it is merely a premise that the Plaintiff is entitled to apply for the third examination, and it does not change the legal status of the successful bidder. Thus, if the successful bidder passed the first examination conducted after the first failure to pass the examination, it shall be deemed that there is no legal interest to seek the cancellation of the first failure disposition (see, e.g., Supreme Court Decision 95Nu2685, Feb. 23, 1996). However, in this case, the fact that the Plaintiff passed the first industrial safety instructor examination conducted by the Defendant on March 30, 2019 between the parties concerned.

Since there is no dispute, the plaintiff should be deemed to have no legal interest in dispute over the disposition of failure to pass the first examination of this case.

Therefore, the instant lawsuit is unlawful.

On the other hand, the plaintiff asserts that there is a legal interest in dispute over the disposition of failure to pass the first examination of this case, since the plaintiff can obtain the eligibility to apply for the second examination once again if the disposition of failure to pass the first examination of this case is revoked. However, the combination of the first examination is merely an acquisition of the qualification to apply for the second examination or the third examination, which is separate from the second examination or the third examination, and the first examination does not constitute an independent nature. If the plaintiff passes the second examination, regardless of the time of passing the second examination, it is not a giving an opportunity to apply for the second examination or the third examination, but can take the second examination or the third examination conducted at that time, so it is possible to apply for the second examination or the third examination conducted at that time strictly, and if the plaintiff fails to pass the first examination of this case, the period of time limit on the third examination which can be presented as such is strictly limited, and the plaintiff's legal status is cancelled. Therefore, the plaintiff's failure to pass the first examination of this case is not acceptable.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

Judges Lee Jae-py

Judge Lee Jong-soo

Occupational Safety and Health Act

Article 52-3 (Qualification and Examination of Instructors)

(1) Any person who has passed an examination for instructors conducted by the Minister of Employment and Labor shall be qualified as an instructor. < Amended by Act No. 11849, Jun. 12, 2013>

(3) The Minister of Employment and Labor may authorize a specialized institution prescribed by Presidential Decree to conduct the examination for instructors under paragraph (1) on his/her behalf. In such cases, expenses incurred therein may be subsidized, within budgetary limits. < Amended by Act No. 10339, Jun. 4, 2010; Act No. 11879, Jun. 12, 2013>

(4) Officers and employees of the professional agency executing the examination for instructor under paragraph (3), shall be considered public officials in the application of the provisions of Articles 129 through 132 of the Criminal Act.

(5) The subjects of the examination for instructors, scope of exemption from the examination for those holding other qualifications, and other necessary matters shall be prescribed by Presidential Decree.

【Enforcement Decree of the Occupational Safety and Health Act

Article 33-13 (Institution to Conduct Examinations)

(1) "Specialized institution prescribed by Presidential Decree" in Article 52-3 (3) of the Act means the Korea Manpower Agency established under the Korea Manpower Agency of Korea Act (hereinafter referred to as the "Korea Manpower Agency of Human Resources").

(2) Where the Minister of Employment and Labor has the Human Resources Development Service of Korea conduct the examination for instructors on his/her behalf pursuant to Article 52-3 (3) of the Act, he/she may require the same Service to organize and operate an examination committee, if deemed necessary. < Amended by Presidential Decree No. 22269, Jul. 12, 2010>

(3) Matters necessary for the composition, operation, etc. of the Examination Committee shall be prescribed by the Minister of Employment and Labor.

[Specialized Amendment : July 30, 2009]

Article 33-14 (Conducting Examinations, etc.)

(1) The examination for instructors under Article 52-3 (1) of the Act shall be conducted by classifying into the written examination and interview.

(2) The written examination from among the examinations for instructors shall be conducted after classifying it into the first one and the second one. The first written examination shall be a selective form and the second written examination shall be an essay form in principle, and a subjective short-answer form may be added to both.

(3) The subjects and scope of the first written examination in the examination for instructors shall be the common compulsory subjects I, the common compulsory subjects I, and the common compulsory subjects III as shown in attached Table 12, and the subjects and scope of the second written examination shall be the major compulsory subjects and scope as shown in attached Table 12. < Amended by Presidential Decree No. 23528, Jan. 26, 2012>

(4) The second written examination in the examination for instructors shall be conducted only for those who have passed the first written examination.

(5) The oral examination in the examination for instructors shall be conducted only for successful applicants in the written examination, or those exempt from the written examination, and shall evaluate the following matters:

1. Expert knowledge and practical ability; and

2. Degree of understanding and awareness about the industrial safety and health system;

3. Ability to provide counseling and guidance;

(6) Public announcement and application procedures of examination for instructors, and other matters necessary for examination shall be prescribed by Ordinance of the Ministry of Employment and Labor. < Amended by Presidential Decree No. 22269, Jul. 12, 2010>

Article 33-15 (Partial Exemption from Examination)

(1) Qualifications for partial exemption from the examination for instructors under Article 52-3 (2) of the Act and the scope of exemption from the examination under paragraph (5) of the same Article shall be as follows: < Amended by Presidential Decree No. 28358, Oct. 17, 2017>

1. A construction safety engineer, a machine safety engineer, a professional engineer in industrial hygiene management, a professional engineer in ergonomic engineering, a former professional engineer in ergonomic safety, a chemical safety engineer, and a chemical safety engineer under the National Technical Qualifications Act: the compulsory major subject, common compulsory I, and common compulsory subjects under attached Table 12;

2. Persons qualified as professional engineers in the field of construction (limited to the fields of mid-construction and civil engineering), in the field of non-career in machinery, in the field of chemistry, in the field of electricity and the field of electricity under the National Technical Qualifications Act (limited to the fields of electricity and civil engineering): The compulsory major subject under attached Table 12;

3. A medical specialist in the occupational and environmental department under the Medical Service Act: A person who holds a doctorate in the major compulsory, common compulsory, and common compulsory subjects 4. Engineering (limited to the major in the field of construction safety, machinery safety, electrical safety, and chemical and chemical safety) under attached Table 12, medical science (limited to the major in the field of occupational and environmental science) and health (limited to the major in the field of industrial health): The major compulsory subject under attached Table 12;

5. Persons who fall under subparagraph 2 or 4 and have at least three years’ work experience in occupational safety and health affairs after obtaining their respective qualifications or degrees: the compulsory major subject and the compulsory common subject under attached Table 12.

6. Certified Public Labor Attorney under the Certified Public Labor Attorney Act: Common compulsory I subjects under attached Table 12.

7. A person qualified as an instructor under Article 52-3 (1) of the Act who applies for another qualification examination as an instructor: A common compulsory subject and a common compulsory subject under attached Table 12.

8. A person qualified as an instructor under Article 52-3 (1) of the Act who is qualified as a person in the same field and participates in the qualification examination for an instructor in other fields of the same instructor: the common compulsory I, the common compulsory items and the common compulsory subjects under attached Table 12.

(2) A person who has passed the first or second written test pursuant to Article 33-14 (2) shall be exempted from the next written test only for the next written test. < Amended by Presidential Decree No. 28350, Oct. 17, 2017>

Article 33-16 (Decision on Successful Applicants)

(1) A person who gains not less than 40 points out of 100 in each subject and an average of not less than 60 points in all subjects in the written examination shall be a successful applicant.

(2) The oral examination shall evaluate the following matters listed in each subparagraph of Article 33-14 (5), and shall have any person who gains 6 points out of 10 as a successful applicant.

[Attachment 12] < Amended by Presidential Decree No. 2525, Mar. 12, 2014>

Subjects and scope of written examinations by service field (related to Article 33-14 (3)) of instructors;

A person shall be appointed.

A person shall be appointed.