Whether a driver of a vehicle mooring, loading, unloading, transportation, machinery, etc., and an employee who is at risk of contact with a vehicle mooring, loading, unloading, transportation, machinery, etc., in the course of work, can be a work commander or an guide (negative in principle)

In full view of Articles 23(2) and (4) of the former Occupational Safety and Health Act and Articles 38(1), 39(1), and 172(1) of the former Rules on the Standards for Occupational Safety and Health (amended by Ordinance of the Ministry of Employment and Labor No. 49, Mar. 5, 2012) (amended by Act No. 10968, Jul. 25, 201); in cases of operating vehicles for loading, unloading, transportation, machinery, etc., a business owner shall designate and place a work commander or an guide to prevent industrial accidents caused by loading, unloading, transportation, machinery, etc., barring any special circumstance, and employees who are at risk of having contact with vehicles for loading, unloading, transportation, machinery, etc. may not be a work commander or an guide.

Articles 23(2) and (4), 66-2, and 67 subparag. 1 of the former Occupational Safety and Health Act (Amended by Act No. 10968, Jul. 25, 201); Articles 38(1)2, 39(1), and 172(1) of the former Rules on the Standards for Occupational Safety and Health (Amended by Ordinance of the Ministry of Employment and Labor No. 49, Mar. 5, 201);

Defendant 1 and two others

Prosecutor

Chuncheon District Court Decision 2012No353 decided January 22, 2013

Of the lower judgment, the part of the lower judgment against Defendants 2 and 3 regarding each of the violation of the Occupational Safety and Health Act is reversed, and that part of the case is remanded to the Panel Division of the Chuncheon District Court. All of the remaining appeals are dismissed.

The grounds of appeal are examined.

1. The part on the defendant 1 and 2's occupational injury or death

The court below affirmed the judgment of the first instance court which acquitted the defendant 1 of this part of the facts charged on the ground that the chemical ingredients of the paints detected by the safety appearance of the non-indicted 1 coincide with the chemical ingredients of the paint detected at the strings (glass), the defendant 1 stated at the investigative agency that the non-indicted 1 could not be seen as moving from the above space of the truck's loading box, the non-indicted 1's autopsy was found to have been caused by the strong external power that has almost immediately worked in the front string part, and the non-indicted 1 was found to have been damaged by the strong external power as a result of the non-indicted 1's autopsy, and even considering all the shapes at the time of fall, it cannot be concluded that the non-indicted 1 was shocked in the front strings operated by the defendant 1, or that the non-indicted 1 was cut into the floor, and therefore, it cannot be deemed that the non-indicted 2 died due to the negligence on the part of the non-indicted 1.

Examining the reasoning of the lower judgment in light of the evidence adopted, the lower court’s determination is acceptable, and contrary to what is alleged in the grounds of appeal, it did not err by misapprehending the rules of logic and experience and exceeding the bounds of the principle of free evaluation of evidence or by failing to exhaust all necessary deliberations

2. The part of each violation of the Occupational Safety and Health Act against Defendant 2 and Defendant 3 (hereinafter “Defendant 3”)

Article 23(2) of the former Occupational Safety and Health Act (amended by Act No. 10968, Jul. 25, 201; hereinafter referred to as the “Act”) provides that business owners shall take necessary measures to prevent hazards arising from defective working methods, etc. in the course of excavating, quarrying, loading and unloading, timbering, transporting, dismantling, dismantling, handling heavy objects, and other works, and shall delegate safety measures to the Minister of Employment and Labor under Articles 23(4) through (2) of the same Act, which shall be prescribed by Ordinance of the Ministry of Employment and Labor for employees to ensure the safety measures to be taken by the business owners in accordance with Articles 38(1) and 39(1) of the former Rules on the Safety and Health (amended by Act No. 10968, Jul. 25, 2011; hereinafter referred to as the “Rules”), but the same shall not apply to cases where workers are engaged in loading and unloading, loading and unloading, etc., and employees are not obliged to enter or leave the loading and unloading, etc.

In full view of these provisions, in the event of the work of using loading and unloading, transportation, machinery, etc. on the vehicle system, the business owner designates and places a work commander or an guide in order to prevent industrial accidents caused by loading and unloading, transportation, machinery, etc. on the vehicle system. Thus, barring any special circumstance, the driver of the vehicle system, such as loading and unloading, transportation, machinery, etc. on the vehicle system, and any worker who is at risk of having contact with

The court below affirmed the judgment of the court of first instance which acquitted Defendant 3 on the ground that Defendant 1's driving of a car and carrying waste boom on the freight truck of Nonindicted Party 1 without taking necessary measures to prevent danger, such as posting work conductors or guides, etc., at the work site, Defendant 2 entered the workers, and Defendant 3 committed the above violation in relation to the business of Defendant 3. As to this part of the charges, Defendant 2, who is his employee, committed the above violation, on the ground that Defendant 3 can be deemed to have implicitly posted Nonindicted Party 1 to the guide of the vehicle.

However, it is difficult to accept the judgment of the court below for the following reasons.

According to the lower judgment and the first instance court’s evidence, Defendant 3 agreed to transport wastes generated from the instant place of business to a waste disposal business operator, upon being entrusted with the management and operation of the waste incineration facilities (hereinafter “instant place of business”) located at the Seocho-si from the early from December 2010 to the early early (number omitted). Around February 201, Defendant 3 agreed to receive equipment and drivers owned by the Corporation from the Seocho-si Facilities Management Corporation (hereinafter “the instant place of business”). Defendant 3, on March 3, 2011, agreed with Nonindicted Company 2 (hereinafter “Nonindicted Company 2”) to transport wastes generated from the instant place of business by receiving KRW 5,00 per ton transportation cost, and Nonindicted Company 1 was a cargo driver belonging to Nonindicted Company 2, and Nonindicted Company 2 was a truck driver of the instant place of business, who was under the command of the head of the instant place of business or the head of the instant cargo collection team to take charge of the safety and health of the employees in the instant place of business. Defendant 1, who was under the command of the instant cargo collection team.

In light of the above circumstances, Nonindicted Party 1 was given and received with Defendant 1, the driver of the store, at the instant place of business, which was not taking safety measures under the Rule, as the truck driver of Nonindicted Party 2’s truck belonging to Nonindicted Company 2, and was engaged in waste parking work at the same time. However, it cannot be deemed that Nonindicted Party 1, even before the instant case, was implicitly designated as the owner of the said work, or that Nonindicted Party 1 was posted as the leader of the said work in order to avoid concerns over the risk to workers due to contact with the cargo or the store with the worker.

Nevertheless, the lower court upheld the first instance judgment that acquitted Defendant 2 and Defendant 3 of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application of the Occupational Safety and Health Act, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and the prosecutor’s ground of appeal pointing

3. Conclusion

Of the lower judgment, the part on the violation of the Occupational Safety and Health Act against Defendants 2 and 3 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. All remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)