Defendant 1 and 2

Defendants

Definitions

Law Firm Taeyang et al., Counsel for the plaintiff-appellant-appellee

Daegu District Court Decision 2008 High Court Decision 435 Decided October 22, 2008

1. The part of the judgment of the court below against the defendant 2 and 3 corporation is reversed.

Defendant 2 and three stock companies shall be acquitted respectively.

2. Defendant 1’s appeal is dismissed.

1. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged

Defendant 1 is a person engaged in the business of leasing equipment with the trade name “Non-Indicted 1 Co., Ltd.”, and Defendant 2 is a representative director of Defendant 3 Co., Ltd. who is in charge of the safety and health management of workers belonging to the above company, and Defendant 3 Co., Ltd. is a corporation established

(1) On March 15, 2007, Defendant 1 did not deliver to Defendant 3 a document stating the capacity of the relevant machine and the details of protective measures against the lessee, the characteristics of the relevant machine, etc., precautions for their use, the repair, maintenance and details of the relevant machine, etc., and the manufacturing date of the main parts. However, around March 15, 2007, Defendant 1 did not deliver to Defendant 3 a document stating the above matters when lending the (vehicle number omitted) a dangerous machine placker to Defendant 3.

(2) Defendant 2: (a) in the course of performing the work by using the vehicle gauge construction machinery, the business owner prepared a work plan containing the type and capacity of the vehicle gauge construction machinery, the operating route, and the working method; and (b) did not use it for any purpose other than the main purpose of the machinery; and (c) as the work plan for the (vehicle number omitted), the above excavating machine was prevented from being used for any purpose other than the excavation work, the main purpose of which is the excavation work; and (d) in the case of the above digging machine being used for the excavation work other than the main purpose, the above digging machine should be removed and settled again in the course of the excavation work, and even if there was a risk that the above digging machine might fall down in the process, the business owner did not take any measures to prevent the above danger, and (e) did not take any measures to separate the above danger, and (e) in the process of the construction work of the above 14:00 on October 23, 207, the construction site development work of 2007.

(3) Defendant 3 Co., Ltd. committed an act of violating the preceding paragraph in relation to Defendant 2’s business at the time and place specified in the preceding paragraph.

B. The judgment of the court below

The court below found all of the above facts charged guilty based on the evidence in its ruling.

2. Summary of grounds for appeal;

A. Defendant 1

Article 67-2 subparag. 1 and Article 33(2) of the Occupational Safety and Health Act, Article 27(2) of the Enforcement Decree of the same Act, and Article 49(1) of the Enforcement Rule of the same Act provide that a rental business operator shall punish a rental business operator if a disaster occurred because the rental business operator fails to take necessary measures to prevent harm and danger. The instant accident is not an accident caused by the malfunction of equipment, and thus does not constitute a crime regardless of the relevant law violation, or even if it is not a domestic affairs, in the instant case, Defendant 1, the rental business operator, was not merely lent equipment, but also Defendant 2 was dispatched along with Nonindicted 2, and thus, the Defendant was guilty of the above Defendant, despite the lack of effectiveness or necessity of the written delivery required under each of the above provisions, and thus, the lower court erred by misapprehending the facts or by misapprehending the legal principles, thereby affecting the conclusion of the judgment.

B. Defendants 2 and 3

Although the main purpose of the excavation season of this case includes lifting and loading and unloading work, Defendant 2 prepared work plans and work plan drawings relating to the working method using the excavation equipment of this case, machine operation route, commander of work prior to work, safety inspection, etc., and completed work, the court below found Defendant 2 guilty of the facts charged of this case, by misunderstanding the facts or misunderstanding the legal principles, which affected the conclusion of the judgment.

3. Judgment of the court below

(a) Facts of recognition;

In full view of the evidence duly admitted and examined by the court below, the following facts may be recognized:

① Defendant 3 Co., Ltd. was a corporation established for the purpose of the soil construction business, and was contracted with Nonindicted Co. 4 Co., Ltd. for the construction of reinforced concrete and soil construction work among the “sport water site development project” in the north-gu ○○dong (Sport omitted) at port and port.

② Defendant 3, around March 2007, entered into a lease agreement with Defendant 1 to lease one of the instant excavation search devices including Nonindicted 2, Defendant 1, and Defendant 1 issued a registration certificate and inspection certificate of construction machinery stating the indication of the excavation search devices, inspection date, etc.

③ On the day of the instant case, Nonindicted 2 was under the direction of Nonindicted 3, the director of the construction division of Defendant 3 Co., Ltd., and was conducting the business of cutting off and stopping, but Nonindicted 3 instructed Nonindicted 2, who was working, to contact Nonindicted 2, who was in contact with his cell phone, and to transport the iron bars carried in at the construction site of this case.

④ Accordingly, Nonindicted 2: (a) laid off the boomer’s boomer; (b) completed the loading and unloading work by sticking a iron boomer’s boom at the end of the boomer; and (c) Nonindicted 3, who was approaching the boom at the end of the boomer’s boom in order to verify whether the backer was installed or not after entering the boomer’s boomer’s boomer’s boomer’s boomer’s boomer’s approach the boomer’s boom for work instruction; and (d) Nonindicted 3, who left the boomer’s two parts and the upper half of the boomer’s boomer’s boomer’s boomer’s boomer’s boomer’s boomer’s boomer’s boomer’s boom.

⑤ The work plan prepared to implement the instant work site includes the types of construction machinery, operation routes, work methods, matters to be observed by the commander of the relevant work, and safety inspection prior to the work site. The driver of the relevant work site shall check whether there is a person or an obstacle in the surrounding area according to the name of the guide, and shall not move the equipment, prohibit the entry of the employee except the guide and the entry of the employee into the work site in the equipment moving route and the working party, and shall check the status of the conclusion of the safety pink

B. Whether Defendant 1 violated the Occupational Safety and Health Act

Article 33(2) of the Industrial Safety and Health Act provides that a lessee and a lessee of machinery, etc. shall take measures to prevent harm and danger as prescribed by Ordinance of the Ministry of Labor. Accordingly, Article 27(2) of the Enforcement Decree of the same Act, Articles 49(1) and 50(1) of the Enforcement Rule of the same Act provide that a lessee of machinery shall deliver a document stating the capacity and protective measures of the machinery in question, the characteristics of the machinery in question and directions for use, the details of repair and review of main parts, and the date of manufacturing of the main parts to the lessee. The lessee of the machinery is obligated to inform the operator of the machinery of the matters concerning the operation of the machinery in question, and matters necessary to prevent industrial accidents caused by the operation of the machinery in question.

The purport of these laws and regulations is to require a mechanical lessee to deliver a document stating the capacity of the machinery in question, directions for use, protection measures, etc. to the lessee of the machinery and to take care of the contents of the document delivered by the lessee and to ensure the safety of workers in the workplace by preventing risks that may arise from the use of the machinery in the workplace of the lessee, and further, it does not require the lessee and the lessee to take an accident in violation of the duty to take measures to prevent harm and danger.

Therefore, the issue of whether the instant accident occurred due to the breakdown of equipment does not affect the establishment of the crime of violating the Occupational Safety and Health Act due to the violation of the duty to deliver in writing, and the purpose of the said Act is to ensure the safety of workers at the workplace of the lessee of the machinery. The operator is not subject to instruction and supervision by the rental business operator, but is engaged in the work upon instruction and supervision by the lessee. Thus, the operator is not obligated to deliver in writing to the rental business operator. Thus, Defendant 1’s assertion is without merit.

C. Whether Defendants 2 and 3 violated the Occupational Safety and Health Act

(1) Whether steel bars are included in the main purpose of this case mining machines

Article 228 of the Rules on Industrial Safety provides that a business owner shall not use construction machinery for any purpose other than the main purpose. However, the main purpose of construction machinery for vehicle mooring is not limited to one use. According to the evidence duly examined and adopted by the court below, the work plan prepared by Defendant 3 corporation is prohibited from using the main purpose, but does not contain any example as to main purpose. The excavation of this case is capable of cutting off the boomer, a string of the boomer can connect the boomer, and a string of the boomer, a string of the boomer, a string of the boomer, a string of the boomer, and a string of the boomer, etc. is sold together with the iron bars necessary for the boomer's quantity at the time of selling the boomer, and it is reasonable to see that the boomer's boomer's boomer's coomer's coomer's cater.

(2) Whether the work plan is prepared

Article 219 of the Rules on Industrial Safety provides that a business owner shall prepare a work plan which includes the types and capabilities of construction machinery in the vehicle system, operational routes, work methods by the vehicle system, and operation methods by the vehicle system when conducting work using the vehicle system construction machinery, and conduct work according to the work plan. According to the evidence of the court below, the fact that the above Defendants 2 and 3 did not prepare a work plan which includes the kinds of construction machinery at the time of this case, operation routes, work methods, work commander, matters to be observed prior to the work, and matters concerning the safety inspection, and do work according to the work plan is not limited to excavation of the main use of the excavation season, and as seen above, human salves using the excavating machine is not included in the work plan of this case and it is difficult to deem that the above Defendants did not take industrial accident prevention measures under the Industrial Safety and Health Act by failing to prepare the work plan as prescribed by the Industrial Safety Standards Act.

(3) In addition, the summary of the violation of the Occupational Safety and Health Act, which was prosecuted by a prosecutor against Defendant 2 and 3, is that "the business owner prepared a work plan containing the type and ability of construction machinery, operational route, working method, and working method of the vehicle system, and the above defendants violated it even if the machinery was not used for any purpose other than the main purpose." However, under Article 34(1) and (2) of the Rules on Industrial Safety, the court below found the above defendants guilty of the violation of the principle of no indictment by finding out the facts identical to the facts charged by the prosecutor, based on the premise that there is no prosecution against the above defendants, even if there is concern that the commencement of the operation of the machinery might cause danger to workers, the business owner shall check in advance necessary matters, such as placement and education of workers, work methods, protective measures, etc., and, when the operation of the machinery begins, the person who will transmit the machinery to the relevant worker, and thus, the chief of the working group at the time of the accident is recognized as violating the Occupational Safety and Health Act.

Furthermore, even if the court can determine the violation of Article 34(1) and (2) of the Rules on Family Affairs and Industrial Safety because it is recognized as identical to the facts charged in the instant case and there is no concern about actual disadvantages to the defendant's exercise of his right to defense, it appears that only one person who has a license to drive a clacker at the construction site in this case and could manipulate it without due process of changes of indictment. Accordingly, the operation of the clacker is an independent work area of Nonindicted 2, an expert, and Nonindicted 2 was ordered by Nonindicted 3, the victim at the time, and the other workers at the time of the instant case were not placed in the place of the clacker, and there is no evidence to deem that the installation of clacker is a work to comply with the signal number signals, and there is no other reason to deem that the above Defendants did not take necessary measures to prevent hazards caused by machinery, apparatus, or other equipment.

(4) In addition, even if the violation of the Occupational Safety and Health Act, such as the use of construction machinery to Nonindicted Co. 2 and 3 for the main purpose other than the parking lot, and the preparation of a work plan, etc., is acknowledged, the crime of violation of Article 67 subparag. 1 and Article 23(1) of the Act against the business owner is established only when the business owner orders the business owner to take safety measures as prescribed by the regulations, or neglects the above work without taking safety measures as prescribed by Article 23(1) of the Act, and it is deemed that the violation was committed by the business owner without taking necessary safety measures at the business owner’s place, and it is not established merely because the business owner’s act was done without taking necessary safety measures as seen above (see Supreme Court Decision 2006Do874, Mar. 29, 2007). The business owner’s death or the violation of Article 66-2 of the Act against Nonindicted Co. 3, a worker, who violated the above Article 23(1) through (3) of the Act.

(5) Sub-committee

Therefore, Defendant 2 and 3 did not prepare a work plan, and used the so-called so-called so-called “Nonindicted 3” for purposes other than the main purpose, and caused the death of Nonindicted 3, the facts charged in the instant case constitute a crime or a case where there is no proof of a crime. However, the court below erred in finding Defendant 2 and 3 guilty of the facts charged in the instant case by misunderstanding the facts. Thus, Defendant 2 and Defendant

4. Conclusion

Therefore, since each appeal by Defendant 2 and 3 is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, part of the judgment of the court below against Defendant 2 and 3 stock companies shall be reversed, and the following judgment shall be rendered again after pleading, and the appeal by Defendant 1 shall be dismissed in accordance with Article 364(4) of the Criminal Procedure Act as it is without merit. It is so decided as per Disposition

The summary of the facts charged of this case is as shown in the above 1-A. (2) and (3). As examined in the above 3-C., the facts charged of this case constitutes a case where the facts charged of this case is not a crime or there is no proof of a crime, and thus, the defendant 2 and 3 are acquitted by Article 325 of the Criminal Procedure Act.

Judges Cho Chang-jin (Presiding Judge)