The elements for establishing a crime of violation of Article 66-2 and Article 23 (3) of the Occupational Safety and Health Act against business owners / Whether the crime was established solely on the ground that the dangerous work was conducted without taking any other possible safety measures than safety measures prescribed by the Regulations on the Standards for Industrial Safety and Health (negative)

Articles 23 (3) and (4), and 66-2 of the Occupational Safety and Health Act

Supreme Court Decision 2008Do7030 Decided May 28, 2009 (Gong2009Ha, 1051) Supreme Court Decision 2008Do7834 Decided September 9, 2010 (Gong2010Ha, 1943) Supreme Court Decision 2009Do13252 Decided November 11, 2010

Defendant 1 and one other

Defendants

Law Firm LLC, Attorneys Lee Hong-hoon et al.

Gwangju District Court Decision 2012No2196 Decided February 15, 2013

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 2 and 3

A. Article 23(3) of the Industrial Safety and Health Act (hereinafter “Act”) provides that a business owner shall take necessary measures to prevent danger in the course of carrying out of work, such as a place where a risk is anticipated to collapse, etc., and the safety measures to be taken by the business owner under Articles 66-2 and 23(3) through 23(3) of the Act shall be prescribed by Ordinance of the Ministry of Employment and Labor. Furthermore, the rules on the standards for industrial safety and health delegated by the business owner (hereinafter “Rules”) specifically stipulate the necessary measures to be taken to prevent danger depending on the type of work, etc., and Article 66-2 of the Act provides that a business owner shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding KRW 100 million if he/she violates his/her duty to take measures to prevent such danger. In full view of these provisions, the crime of violation of Articles 66-2 and 23(3) of the Act is established only when he/she is aware of the risk of safety measures under Article 230 of the Act.

B. (1) The first instance court presumed that (A) in the event that the risk of collapse is anticipated due to the excavation, rupture, etc. in the vicinity of a structure or similar structure, the business owner is obligated to remove the risk of collapse in advance to workers by conducting safety evaluation pursuant to Article 52 subparagraph 1 of the Rules; (b) Defendant 1 is responsible for the safety and health management of workers at the site of the instant Section 2 executed by Defendant 2 Co., Ltd. (hereinafter “Defendant Co., Ltd.”); and (c) Defendant 1 was responsible for the construction site of the instant Section 2 executed by Defendant 2 Co., Ltd. (hereinafter “Defendant Co.”), who violated the duty to take necessary measures for the removal of the instant wall’s collapse by removing the danger of collapse from the site of the instant section 6, which is a duplicative wall installed at the site of the instant construction site due to the accumulation of excavation, navigation, heavy equipment, etc., by finding the owner of the instant wall and failing to perform the duty to take necessary measures for the removal of the aforementioned danger to workers.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not take measures to prevent the collapse of the instant wall, such as reinforcement thereof, etc., inasmuch as the instant wall was considerably weakened to the extent that the risk of collapse was caused by the accumulation of load load from the wall near the fenced by the Defendant Company, according to various operations, such as excavation performed by the Defendant Company near the fenced, and thereby, did not err in the misapprehension of the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

D. However, the part of the judgment of the court below that the defendants violated the duty of safety measures under Article 52 subparagraph 1 of the Rules is not acceptable for the following reasons.

According to the above legal principles, the first instance court and the lower court’s safety measures deemed necessary to be taken by the Defendants should be prescribed in the above rules in order to recognize that the Defendants violated Article 66-2 and Article 23(3) by failing to take necessary measures to prevent hazards at places where soil and sand structures, etc. might collapse during work, and thus, to recognize that the Defendants violated Article 52 subparag. 1 of the Rules.

However, the main text and main text of Article 52(1) of the Rules stipulate that “in cases where the risk of collapse is anticipated due to subsidence, crack, etc. due to excavation, navigation, etc. in the vicinity of a building or similar structure, it shall be evaluated as safety diagnosis and remove the risk to workers in advance.” The first instance court does not stipulate a duty to take safety measures such as “in cases where the owner of the wall of this case is found to have obtained his/her consent, etc. to reinforce the wall of this case, or to have his/her employees pay attention not to work close to or pass through the wall of this case.” Furthermore, in light of the text and purport of Article 52(1) of the Rules in light of the above legal principles, it is difficult to view that the above provision provides the business owner with additional duty to take safety measures, such as “the assessment of safety diagnosis, etc.,” as recognized by the lower court. Therefore, even if the Defendants did not take safety measures, it does not constitute a case where Article 52 subparag. 1 of the Rules.

In addition, according to the reasoning of the lower judgment and the record, the employee of the Defendant Company’s subsidiaries conducted a safety evaluation of the instant fence around September 22, 201 according to the instructions of the Defendant Company, and conducted a preliminary investigation as to the instant fence on October 31, 201. Nonindicted Co. 2, who contracted the instant construction section 2 to the Defendant Company, also conducted a preliminary investigation as to the structure adjacent to the construction site, including the instant fence, on April 20, 201. According to these facts, the Defendant Company shall be deemed to have performed the duty to take safety measures as stipulated in the main sentence and subparagraph 1 of Article 52 of the Rules. Even if the safety evaluation of the instant fence was somewhat defective or inappropriate as determined by the lower court, it is difficult to deem that the Defendant Company failed to take safety measures or intentionally violated the said duty solely on the basis of such circumstances.

E. Meanwhile, as safety standards to prevent an accident, Article 341(1) of the Rules stipulating the business owner’s duty to take safety measures to prevent risks caused by the excavation work, provides that “in the event that any worker might be at the risk of causing damage, etc. to the relevant construction works in the course of the excavation work at a place adjacent to a construction object such as a lighting wall, etc., the business owner shall take measures to prevent the relevant danger, such as reinforcement or removal of the relevant construction object.” Article 38(1)6 of the Rules defines the excavation work of the ground as the height of the excavated area being at least two meters, and the record reveals that the first instance trial was conducted at issue as to the duty to remove risks to the fence of this case.

In light of the legislative purpose of the Act and the contents of Articles 67 subparag. 1 and 23(3) of the Act, in cases where a business owner fails to take necessary measures to prevent risks as prescribed in Article 23, the crime of violation is established regardless of whether or not a disaster actually occurred (see Supreme Court Decision 2005Do3700, Apr. 28, 2006, etc.). Article 66-2 of the Act provides that Article 67 subparag. 1 of the Act shall be punished heavier if the result of the worker's death is caused in violation of Article 23(3).

In light of this, the purpose of Article 341(1) of the Regulations, which prescribes the safety measures to be taken by the business owner under Article 23(3) of the Act, is not only where a business owner is likely to actually destroy a construction object in the course of excavating at a place near the construction object such as lighting walls, and where the excavation is likely to cause damage to the construction object in the course of performing excavation works and where the workers are likely to cause danger to the construction object, such as reinforcement of the construction object. Therefore, even if the construction object does not collapse in the course of excavation works, if the construction object is likely to collapse due to its aging or excavation, it shall be taken in accordance with Article 341(1) of the Rules, and the act of not taking such measures constitutes a violation of Article 23(3) of the Act, and it is reasonable to interpret that the act of not taking such measures constitutes a violation of Article 23(2) of the Act, even if the construction object actually collapse and the construction object actually died at the construction site, it constitutes a violation of Article 23(3) of the Act.

According to the reasoning of the judgment below, including the above facts, and the evidence duly admitted, it appears that the defendant company's height of the excavation area executed in the work section near the wall of this case is the excavation work on which the duty to remove risks as prescribed by the Rules is imposed at 2 to 2.5 meters. The defendant company's work performed by the defendant company, including excavation work, is likely to collapse the wall of this case near the construction site due to cumulative load on the wall of this case. Thus, the defendant 1, the site manager, has a duty to take measures to prevent danger of collapse, such as reinforcement of the wall of this case before the collapse, and the above safety assessment was not taken all safety measures to prevent the collapse in addition to the above safety assessment, and eventually, the wall of this case which was affected by the excavation work such as excavation, was collapsed at the time close to the completion of the work, and the worker's death was done at another site.

Examining these circumstances in light of the aforementioned legal principles, Defendant 1’s above act violates Article 23(3) of the Act and Article 341(1) of the Rules that shall take measures to prevent the pertinent danger to “where workers might be at risk by destroying a construction object in the course of conducting excavation work at a place adjacent to the construction object.” As such, the act constitutes Article 66-2 of the Act since construction object collapses and causes workers’ death, it shall not be deemed that the act falls under Article 66-2 of the Act, and there is a possibility that the instant wall collapses after the completion of the excavation work, not during the excavation work, or that there is a possibility that other causes for the collapse overlap.

F. Furthermore, among the regulations on industrial safety and health, Article 50 of the Regulations that stipulate the business owner’s duty to take safety measures to prevent hazards caused by collapses, etc., which are commonly applicable to workplaces, provides that “if workers are likely to be at risk due to collapses, etc. of structures, the business owner shall take measures, such as installing retaining walls, etc. to prevent such danger.”

Examining the above facts in light of the contents of the above provision, inasmuch as the collapse of the wall of this case near the construction site due to the cumulative accumulation of the evour due to the work performed by the Defendant Company, such as excavation, etc., is likely to occur, Defendant 1, who is also obligated to take measures to prevent danger, such as the installation of a retaining wall, etc., in order to prevent the risk to workers, should also be deemed to have violated Article 23(3) of the Act and Article 50 of the Rule, which are to take measures to prevent the said danger “where workers might suffer danger due to the collapse, etc. of the construction site.”

G. Therefore, the lower court’s conclusion that affirmed the first instance judgment that found Defendants guilty of the charges of violating the Industrial Safety and Health Act as falling under Article 66-2 by violating Articles 23(3) and (4) of the Act is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the scope of safety measures obligation under Articles 52 and 23(3) of the Rules, thereby affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 1

The lower court rejected the Defendants’ allegation in the grounds of appeal that the instant accident does not constitute an accident during the work to which Article 23 of the Act applies, on the contrary, on the ground that Nonindicted Party 1, along with Nonindicted Party 3, was passing ahead of the instant fence in order to fix the road safety facilities at the instant site and move to another site, and that moving to another site at the construction site constitutes an employee’s business, and that it could not be viewed otherwise on the ground that it was possible to pass to the vicinity of the instant fence.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the scope of application under Article 23(3) of the Act, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)