(영문) 서울행정법원 2016.2.24. 선고 2015구단63602 판결

Defendant’s revocation of disposition for one month of the business suspension of an asbestos inspection institution conducted for the Plaintiff on September 7, 2015

Reasons

1. Details of the disposition;

A. On February 18, 2010, the Plaintiff is a corporation designated as an asbestos inspection institution under the Occupational Safety and Health Act, which conducts asbestos inspection.

B. On December 10, 2014, the Plaintiff entered into a contract for asbestos inspection and measurement of asbestos concentration in the air, and asbestos rain management service contract with the 518 Jeon-dong, Dongdaemun-gu, Seoul Metropolitan City Housing Redevelopment and Development Project Association on the housing redevelopment project in Zone 11 in Zone 5, Dongdaemun-gu, Seoul, within ten days after completing asbestos removal works, and thereafter conducted asbestos inspection in Zone 11 in the previous farming area from around that time. While conducting asbestos inspection, the Plaintiff confirmed asbestos as materials containing asbestos containing 2129.65m of asbestos slate, night 48.42m of night 42m, and 326.8m of tex 326.8m as asbestos, the Plaintiff omitted asbestos inspection on detached urban gas pipelines.

D. In the absence of asbestos surveys on gas diskettes, one L&W Co., Ltd., an asbestos dismantler, removed asbestos slate, night, and tex from which asbestos was detected, and carried out asbestos removal work. Cheongong Construction Co., Ltd, a removal company, carried out asbestos removal work from April 20, 2015, which was completed asbestos removal work.

E. On July 20, 2015, when the removal work was in progress, a civil petition was filed with the Dongdaemun-gu Seoul Metropolitan Government office to the effect that asbestos is contained in the gas pipeline gas pocket, and the removal work was suspended on July 20, 2015. The Plaintiff conducted an additional asbestos inspection and confirmed the asbestos in the total of 150 urban gas pipeline gas pockets 295 out of the total of 199 households, and 79 out of the total of 150 households had already been removed before the additional asbestos inspection.

F. On July 23, 2015, one Co., Ltd. reported additional asbestos inspection reports to the Seoul Regional Employment and Labor Agency, and the labor inspector in charge of the Seoul Regional Employment and Labor Agency confirmed the omission of inspection of the gas diskettes, which is asbestos materials, at the time of the Plaintiff’s asbestos inspection. On September 7, 2015, the Defendant issued one-month disposition for the suspension of business of asbestos inspection institutions on the ground that the Plaintiff’s asbestos inspection institution conducted an inspection of asbestos before collecting the shape sample pursuant to Article 38-2(6) of the Occupational Safety and Health Act and Article 80-4(1) and (3) of the Enforcement Rule of the same Act, etc. of the same Act, prior to collecting the shape sample, investigated the functions of the carcass inspection and space, design drawings, the external appearance and location of the user materials, etc., and did not comply with each of the equal quality parts (hereinafter “instant disposition”).

H. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Telecommunication Commission, but was dismissed on January 12, 2015.

[Ground of recognition] Facts without dispute, Gap 1 through 3 evidence, Eul 2, 4 through 8, 11 evidence, the purport of the whole pleadings

2. Whether the disposition is lawful;

G. The plaintiff's assertion

The Plaintiff’s failure to conduct an asbestos inspection on the gas pockets of urban gas pipelines due to negligence while urban gas is mixed with the wasted building and the building not wasted, the act of violation is limited to the business site of this case, the act of violation is likely to be scattered externally, and the degree of infringement of public interest is minor by taking measures immediately aware of the omission of asbestos inspection, and the gas pockets omitted from the inspection are small quantity, and the degree of infringement of public interest is minor. On February 18, 2010, after obtaining authorization for an asbestos inspection institution on February 18, 2010, the Plaintiff faithfully performed duties without violation of the provision except this case. The damage to the ordering points who requested the Plaintiff to conduct asbestos inspection services is enormous and the damage caused thereby is ultimately liable to the Plaintiff. Where the Defendant deems that the suspension of duties is likely to cause severe inconvenience to users or undermine public interest, the Defendant’s act of violation is unlawful in view of the abuse of discretionary power, taking into account the fact that the Plaintiff may order corrective measures in accordance with attached Table 20 of the Enforcement Rule of the Industrial Safety and Health Act, and Health Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In order to prevent health disorder for workers from removing or dismantling a building containing asbestos because asbestos is scattered through respiratory or plesing and causes an infectious disease, such as asbestosis, malicious species, waste cancer, etc., a person who intends to remove or dismantle a building or facility exceeding a certain size under Article 38-2 (2) of the Occupational Safety and Health Act shall have an asbestos inspection institution inspect whether the building or facility contains asbestos, the kind, location, and area of material containing asbestos in the building or facility, the kind and content of asbestos contained in the building or facility, and the type and content of asbestos contained in the building or facility before the work, and Article 80-4 (1) of the Enforcement Rule of the Occupational Safety and Health Act shall make a preliminary investigation into whether asbestos is contained in the building or facility (subparagraph 1); the nature and state of material to be removed or removed, etc., and the collection of samples, pursuant to subparagraph 2, are distinguishable from each other (subparagraph 2);

In addition, the size of each of the divided parts is required to be examined differently in consideration of the number of extractions (No. 3).

The above facts and the evidence revealed as follows; ① Asbestos causes fatal diseases, such as waste cancer, and thus, not only workers engaged in the work of removing and dismantling structures, but also the general public’s health; ② Asbestos inspection institutions to protect workers and citizens from the hazards of asbestos pursuant to the relevant laws and regulations.

Article 14-2 of the Enforcement Rule of the Industrial Safety and Health Act provides that an asbestos inspection institution shall strictly conduct asbestos inspection, and the Plaintiff shall be deemed to be a minor negligence if it was a corporation that had been authorized as an asbestos inspection institution on February 18, 2010 and had been engaged in asbestos inspection work, and omitted in asbestos inspection is difficult to be deemed to be a minor negligence. ④ A civil petition that contains asbestos in an urban gas pipe gas pipeline and re-influences asbestos inspection. Among the buildings at the time of re-influence of asbestos inspection, 79 existing buildings are removed and their risks cannot be deemed to be minor. 6) According to the attached Table 20 of Article 143-2 of the Enforcement Rule of the Industrial Safety and Health Act, where an food inspection institution violates the method of asbestos inspection and other necessary matters, the instant disposition is punishable by one month of business suspension. However, since Article 15-3 of the Industrial Safety and Health Act does not apply to an asbestos inspection institution, it is difficult to view that the instant disposition constitutes an abuse of discretion even if it deviatess and claims by the Plaintiff.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

If so, the plaintiff's claim is dismissed due to the lack of reason.