1. Violation of Duty to Report under the Former Occupational Safety and Health Act

[22-1(A) KCCR 1, 2008Hun-Ka6, February 25, 2010]

In this case, the Constitutional Court held the part of Article 10 Section 1 in Article 69 Item 1 of the former Occupational Safety and Health Act (hereinafter, the "Instant Provision") which imposes punishment against failure to make a report on occurrence of industrial accidents etc. unconstitutional on the ground that it violates the rule of clarity under the principle ofnulla poena sine legeand the rule against blanket delegation.

Background of the Case

Complainants in this case are the CEO of Enet Information Technology Inc. who is in charge of safety and health management for the company's employees and Enet Information Technology Inc., a juristic person established for the purpose of conducting information and communications construction business. The complainants were indicted for neglecting to report properly to the head of local labor agency the serious industrial accident of death of the aforementioned company's employee caused by failure to provide measures for preventing safety hazards during internet cable installation.

While reviewing the above case of 2006KoJung3366, Seoul Eastern District Courtsua sponterequested constitutional review of the Instant Provision to the Constitutional Court on March 4, 2008, under the finding that the Instant Provision is against the principle ofnulla poena sine legeand the rule against blanket delegation, thereby violating the Constitution.

Provisions at Issue

Former Occupational Safety and Health Act (revised by Act No.5248 on December 31, 1996 but before revised by Act No. 9434 on February 6, 2009)

Article 69 (Penal Provision) Any person who falls under the following subparagraphs shall be punished by a fine not exceeding 10 million won:

1.A person who fails to make a report as prescribed in Article 10 or makes a false report

Article 10 (Duty to make Report) ① the business owner shall report to the Ministry of Labor the matters necessary for enforcing this Act or any order issued under this Act, as prescribed by Ordinance of the Ministry of Labor.

Summary of the Decision

In an unanimous opinion, the Constitutional Court declared that the part of Article 10 Section 1 in Article 69 Item 1 of the former Occupational Safety and Health Act, which imposes punishment on those who fail to report on occurrences of industrial accidents etc., runs afoul of the Constitution, violating the rule of clarity under the principle ofnulla poena sine legeand the rule against blanket delegation. The summary of the grounds is as follows:

1. Whether the rule of clarity under the principle ofnulla poena sine legeis violated

The Instant Provision imposes punishment of a fine not exceeding 10 million won against a business owner who fails to report "the matters necessary for enforcing this Act or any order issued under this Act, as prescribed by Ordinance of the Ministry of Labor" or makes a false report on the same matter.

First, the scope of "order" stipulated in the Instant Provision is too broad and unclear. The meaning of "order" in the Instant Provision cannot be clearly defined even by legal experts. Moreover, as the specific details of "the matters" necessary for enforcing "order issued under this Act" are not clearly defined in any Act, it is hard to predict the contents or types of the matters.

It can be said that a 'business owner' who is obligated to abide by the Instant Provision would be in a better position to understand what

should be reported under the Instant Provision than ordinary people. But, we reviewed in the past, given the fact that the Instant Provision does not provide any specific details regarding occurrence of industrial accidents and working environment in workplaces "necessary for enforcing order," the scope of the "matters" cannot be regarded as clear enough to be understood even by business owners.

Therefore, the Instant Provision, while stipulating elements of criminal punishment, does not provide a clear meaning of "the matters necessary for enforcing this Act or any order issued under this Act," thereby making it hard for those who are obligated to abide by the Instant Provision to predict the contents of the "matters" and determine their conduct. For this reasons, the Instant Provision violates the rule of clarity required by the principle ofnulla poena sine lege.

2. Whether the rule against blanket delegation is violated

In determining the elements of the activities subject to criminal punishment, the Instant Provision simply states that failure to report or making a false report on "the matters necessary for enforcing this Act or any order issued under this Act, as prescribed by Ordinance of the Ministry of Labor," will be punished by a fine not exceeding 10 million won. And regarding "the matters necessary for enforcing this Act or any order issued under this Act," Article 10 Section 2 of the Act simply states that "the form and time of the report and other necessary matters pursuant to Section 1 shall be determined by Ordinance of the Ministry of Labor," thereby delegating all the specific details of the elements constituting the penal provision to a lower rule, Ordinance of the Ministry of Labor.

As a result, not only is the Instant Provision itself far short of becoming a guideline with which people who are obligated to abide by the Instant Provision can predict the scope of activities to be punished, but also is the systemic and comprehensive review of the all related provisions as a whole insufficient to give clear prediction on what to be punished. Further, neither any urgent necessity to delegate specific details of the matters in the Instant Provision to Ordinance of the Ministry of Labor nor any inevitable reason that makes it impossible to stipulate the details in the Act is found.

Therefore, the Instant Provision goes against Article 75 of the Constitution, in violation of the rule against blanket delegation, as it delegates all the substances of 'the matters to be reported,' which are the basic elements that constitute the penal provision, to Ordinance of the Ministry of Labor, even without providing broad outlines.