2017Gudan9535 Revocation of business suspension

getable Co., Ltd.

The head of the Sung-nam District Employment and Labor Office

February 28, 2018

March 21, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's business suspension disposition against the plaintiff on November 2017 shall be revoked for one month.

1. Details of the disposition;

A. On September 4, 2009, the Plaintiff completed asbestos dismantling works (hereinafter “the instant construction”) from October 10, 2017 to October 31, 2017, as an enterprise registered as asbestos dismantling or removal business entity, and as from October 10, 2017 to October 31, 2017.

B. Before performing the instant construction pursuant to Article 38-4(3) of the Occupational Safety and Health Act, the Plaintiff prepared and submitted a report to the head of the Seoul Regional Employment and Labor Office Branch Office, the head of the Seoul Regional Employment and Labor Office having jurisdiction over the instant construction site, but did not do so. The head of the Seoul Regional Employment and Labor Office found that white asbestos was detected at the construction site of this case and discovered that the Plaintiff completed asbestos dismantling or removal without filing a report while inspecting the site. The Plaintiff was subject to imposition of an administrative fine of KRW 480,00 on the ground that the Plaintiff failed to fulfill its duty to report under Article 38-4(3) of the Occupational Safety

D. On November 22, 2017, the Defendant notified the head of the Seoul Regional Employment and Labor Agency of the Plaintiff’s failure to comply with the obligation to report asbestos works, and issued a disposition on November 22, 2017 on the ground that the Plaintiff did not meet the obligation to report to the registered company under the Occupational Safety and Health Act (hereinafter “instant disposition”).

E. In the building of this case, the total floor area of asbestos is 79m with 249.22m. [Grounds for recognition] The building of this case is 79m with no dispute, Gap evidence 1, 2-1, 2, 3, 4, Eul evidence Nos. 1 through 5, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the following circumstances, the instant disposition is an illegal disposition by abusing and abusing discretion.

1) The Plaintiff received the imposition of an administrative fine of KRW 480,00,000, along with the instant disposition, and paid voluntarily, and received the duplicate disposition and received excessive disposition.

2) The Plaintiff’s failure to comply with the duty to report asbestos dismantling or removal works is a minor negligence, which is not familiar with relevant regulations.

3) Except for the failure to comply with the duty to report the asbestos dismantling or removal work, the Plaintiff lawfully implemented the relevant provisions on the instant construction and disposal of wastes.

4) The Plaintiff is the best business entity that received the S Grade in the safety evaluation of asbestos dismantling and removal.

5) The Plaintiff did not have been subject to an administrative disposition due to the violation of the provision on the asbestos dismantling or removal work before receiving the instant disposition.

6) In light of the fact that the degree of the Plaintiff’s violation is insignificant, it is reasonable to order the Defendant to take corrective measures instead of the instant disposition.

7) The instant disposition may cause irreparable damages to the Plaintiff. In other words, the instant disposition is likely to cause damage to the Plaintiff (i.e., losses that adversely affect the maintenance of livelihood of eight employees engaged in dismantling or removing the Plaintiff’s asbestos, (ii) damages that the Plaintiff should compensate for 200% of the down payment on the construction 20 cases already underway or scheduled to be in progress, (iii) damages that the Plaintiff is designated as an improper businessman under the State Contracts Act and failed to bid construction ordered by a public institution for the next two years, and (iv) damage to local residents or students due to the delay of construction works currently being in progress or scheduled to be implemented by the Plaintiff.

B. Relevant statutes

It is as shown in the attached Table related statutes.

C. Determination

Even if considering the circumstances as alleged by the Plaintiff, in light of the following circumstances revealed by the facts alleged by the Plaintiff, the public interest purpose to achieve the instant disposition cannot be deemed to be somewhat less that of the Plaintiff’s loss. Thus, the instant disposition is a legitimate disposition made within the Defendant’s legitimate discretion.

1) Article 38-4(3) of the Occupational Safety and Health Act provides that a person engaged in dismantling or removing asbestos shall report to the Minister of Employment and Labor before dismantling or removing asbestos, with the aim of ensuring compliance with the working standards and supervision by the local employment and labor offices. The primary purpose of this Act is to prevent industrial accidents and create a pleasant working environment through confirmation and supervision for the purpose of preserving the safety and environment of workers and people around the construction site. However, the completion of the instant construction without the Plaintiff’s report cannot be said to be minor in light of the risk of asbestos as follows.

2) Since asbestos not only causes respiratory diseases but also causes fatal diseases such as lung cancer, workers engaged in the work of dismantling or removing asbestos must be protected from its harmfulness, and for this purpose, it is necessary to strictly check and supervise that workers engaged in the work of dismantling or removing asbestos comply with the work standards prescribed by law.

3) There is no ban on double disposal of administrative fines imposed on the duty to report under Article 38-4(3) of the Industrial Safety and Health Act, and on both the imposition of administrative fines and the suspension of business.

4) As seen earlier, since the Plaintiff had registered as an asbestos dismantler or removal business entity since 2009 and carried out such work, it is difficult to understand that the Plaintiff failed to properly know the duty to report as prescribed by the Act and subordinate statutes in order to carry out asbestos dismantling or removal works, and even if the Plaintiff was well aware of such fact, it is difficult to justify the Plaintiff’s violation of the duty to report.

5) Since the Plaintiff was found to have violated the duty to report upon completion of the instant construction project, it does not constitute a case where the Plaintiff could correct the violation, even though it did not constitute the first violation, it does not constitute a case where the Plaintiff could order corrective measures in lieu of business suspension.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges' Authority

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.