In a case where Defendant A, a person in charge of environmental safety and a hazardous chemical supervisor of Defendant A, was indicted for violating the Chemicals Control Act on the ground that Defendant B was unable to be deemed to have violated the hazardous chemical handling standards as a hazardous chemical supervisor, and Defendant B did not participate in the tank croke vehicle when moving the hazardous chemical in the storage tank to the tank.

In a case where Defendant A, who is a person in charge of environmental safety of Defendant A and a hazardous chemical supervisor, was indicted for violating the Chemicals Control Act on the ground that Defendant B did not have any evidence to acknowledge that he/she was a hazardous chemical supervisor under Article 32 of the Chemicals Control Act at the time, and Defendant A did not report a hazardous chemical supervisor under the Chemicals Control Act at the time of the lapse of five months thereafter, Defendant A was issued a certificate of report after reporting to Byung as a hazardous chemical supervisor at the time of the occurrence of five months thereafter; Defendant A was appointed pursuant to the former Toxic Chemicals Control Act (wholly amended by Act No. 11862, Jun. 4, 2013; Act No. 11862, Jun. 4, 2013); Defendant B cannot be deemed a hazardous chemical supervisor unless he/she was appointed as a hazardous chemical supervisor under Article 32 of the Chemicals Control Act.

Article 13 subparag. 4, Articles 32, 35(2)19, 59 subparag. 1, 63, and 64(1)7 of the Chemicals Control Act, Article 7 of the Addenda (amended by Presidential Decree No. 2013, Jun. 4, 2013); Article 12 of the Enforcement Decree of the Chemicals Control Act; Articles 33, 34(1) and (2) of the Enforcement Rule of the Chemicals Control Act; Article 9 and 11 of the Addenda (amended by Act No. 11862, Jun. 4, 2013); Article 25 of the former Toxic Chemicals Control Act (wholly amended by Act No. 11862, Jun. 4, 2013); Article 61 subparag. 2 of the Chemicals Control Act (see Article 35(2)19, Article 64(1)7 of the current Chemicals Control Act); Article 25 of the former Enforcement Rule of the Chemicals Control Act (see Article 25 subparag. 214(2) of the former Enforcement Rule of the Chemicals Act)

Defendant 1 and one other

Lathere et al.

Seowon Law Firm, Attorneys Lee Ho-ho et al.

Defendants are not guilty.

1. Summary of the facts charged in this case against the Defendants

Defendant 1 is the chief of the department in charge of environmental safety of Defendant 2, who is a hazardous chemical supervisor, and when he loads or lands hazardous chemicals to another hazardous chemical handling facility, he did not comply with the standards for handling hazardous chemicals, such as having a hazardous chemical supervisor participate in the business, but around March 9, 2015, around 09:41, Defendant 2 did not take part in (vehicle number omitted) LAD 100, which is a hazardous chemical substance stored in a storage tank in Defendant 2’s storage tank (vehicle number omitted) and did not take part in the transfer of hazardous chemical substance to another hazardous chemical handling facility, and Defendant 1, who is a hazardous chemical supervisor, committed the above violation in relation to his business.

2. Determination

A. The fact that Defendant 1 did not participate in the site where he transferred hazardous chemicals around 09:41 on March 9, 2015 can be acknowledged by the evidence submitted by the prosecutor, and the Defendants also recognize such fact.

B. The Defendants’ defense counsel asserted that Defendant 1 was reported as a poisonous substance manager under the Toxic Chemicals Control Act on July 28, 2014, but Defendant 1 was not a hazardous chemical supervisor at the time of March 9, 2015, and the Defendants were not guilty.

C. The evidence submitted by the prosecutor alone is insufficient to recognize that Defendant 1 violated the standards for handling hazardous chemicals due to Defendant 1’s failure to participate in the site of moving toxic chemicals as a hazardous chemical supervisor, and there is no other evidence to recognize this otherwise. Defendant 1 cannot be acknowledged as a violation of Article 63 of the Chemicals Control Act of Defendant 2 corporation premised on the premise that Defendant 1 falls under a person who violated Article 59 subparag

① A prosecutor considered Defendant 1 as a hazardous chemical supervisor in a violation of Article 59 Subparag. 1 and Article 13 Subparag. 4 of the Chemicals Control Act, although Defendant 1 was fully amended on March 9, 2015, thereby changing the name of the law pursuant to Article 32 of the Chemicals Control Act (the Toxic Chemicals Control Act was wholly amended on June 4, 2013; January 1, 2015). Rather, Defendant 2 corporation did not report a hazardous chemical supervisor prescribed by the Chemicals Control Act as a hazardous chemical supervisor around August 27, 2015, and issued a certificate of report to Nonindicted 1 as a hazardous chemical supervisor, Nonindicted 2, Nonindicted 3, and Nonindicted 4 as a hazardous chemical inspector.

(2) Even a poisonous substance manager appointed pursuant to the former Toxic Chemicals Control Act (wholly amended by Act No. 11862, Jun. 4, 2013; hereinafter referred to as "toxic Chemicals Control Act") shall not be deemed a hazardous chemical supervisor unless he/she is appointed as a hazardous chemical supervisor pursuant to Article 32 of the Toxic Chemicals Control Act.

Article 59 Subparag. 1 of the Chemicals Control Act provides that “any person who fails to observe the standards for the handling of hazardous chemicals in violation of Article 13 shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 50,000 won, and Article 13 of the same Act provides that “any person who handles hazardous chemicals shall comply with the following standards for the handling of hazardous chemicals.” Article 59 Subparag. 4 provides that “When loading or unloading hazardous chemicals into or out from the vehicle or moving to another hazardous chemical handling facility, a hazardous chemical supervisor under Article 32 shall participate.” However, the Chemicals Control Act does not provide that a hazardous chemical supervisor appointed pursuant to the Toxic Chemicals Control Act shall be deemed a hazardous chemical supervisor until he/she is appointed:

Furthermore, considering the following circumstances, a poisonous substance manager under Article 25 of the Toxic Chemicals Control Act cannot be regarded as a toxic substance manager under Article 32 of the Chemicals Control Act.

Article 12 of the Enforcement Decree of the Chemicals Control Act provides for the kinds, qualifications, and scope of duties of a hazardous chemical supervisor, and Article 33 of the Enforcement Rule of the Chemicals Control Act provides for the criteria for the appointment of a hazardous chemical supervisor (the number of hazardous chemical supervisors and inspectors). Article 34(1) of the Enforcement Rule of the Chemicals Control Act provides that a person who has appointed a hazardous chemical supervisor shall, without delay, report to the head of a regional environmental office along with a list of hazardous chemical supervisors, etc., and Article 25(2) of the Enforcement Rule of the Toxic Chemicals Control Act provides that the head of a regional environmental office in receipt of a report shall issue a certificate of report. However, Article 25(1) of the Toxic Chemicals Control Act prior to the enforcement of the Chemicals Control Act provides that a poisonous substance business operator shall appoint a hazardous chemical supervisor, and Article 25(2) of the Enforcement Rule of

Article 61 Subparag. 2 of the Toxic Chemicals Control Act provides that a person who does not appoint a poisonous substance supervisor shall be punished by a fine of up to 3 million won. However, Article 64(1)7 of the Chemicals Control Act provides that a fine for negligence of up to 10 million won shall be imposed on a person who fails to report the appointment, dismissal, or retirement of a hazardous substance supervisor in violation of Article 32, or a person who does not appoint a representative shall be punished by a fine for negligence of up to 10,000 won, and Article 35(2)19 of the Act provides that the Minister of Environment may revoke the permission for business or order the suspension of business in whole or in part for a fixed period of up to 6 months.

(3) Article 7 of the Addenda of the Chemicals Control Act (wholly amended by Act No. 11862, Jun. 4, 2013) provides that "Any person who has appointed a poisonous substance manager pursuant to the former Toxic Chemicals Control Act before this Act enters into force shall report the appointment of a hazardous chemical supervisor pursuant to Article 32 (3) within the period prescribed by Ordinance of the Ministry of Environment, and Article 9 of the Addenda of the Enforcement Rule of the Chemicals Control Act provides that "where he/she appoints a poisonous substance manager or a restricted or prohibited substance manager pursuant to the former Toxic Chemicals Control Act before this Rule enters into force pursuant to Article 7 of the Addenda of the Act, he/she shall report the appointment of a hazardous chemical supervisor by December 31, 2015, notwithstanding the amended provisions of Article 34 (1)."

Article 32(1) of the Chemicals Control Act provides that “Before the commencement of business,” and Article 9 of the Addenda of the Enforcement Rule of the Chemicals Control Act provides that “Before the commencement of business, a hazardous chemical supervisor shall be appointed by December 31, 2015,” and Article 34(1) of the Enforcement Rule of the same Act provides that “Before the commencement of business, a hazardous chemical supervisor shall be appointed by December 31, 2015,” in light of the fact that Article 34(1) of the same Enforcement Rule provides that “Before the commencement of business, the hazardous chemical supervisor shall be appointed by January 1, 2015, and only the obligation to report shall be postponed by December 31, 2015.”

However, Article 32(3) of the Chemicals Control Act and Article 34(1) of the Enforcement Rule of the Chemicals Control Act provide that if a hazardous chemical supervisor is appointed, a report shall be made without delay. Article 11 of the Addenda of the Enforcement Rule of the Chemicals Control Act provides that a person who handles hazardous chemicals shall be subject to the Toxic Chemicals pursuant to the Toxic Chemicals Control Act shall be subject to a grace period for the handling standards under the amended Enforcement Rule of the Facilities, Equipment, Equipment, etc. [Attachment I] of the Standards for Handling Hazardous Chemicals until December 31, 2016. The qualifications of a hazardous chemical supervisor are strengthened, and the number of persons to be appointed shall be strengthened, and the procedures for appointing a hazardous chemical supervisor are not required to be reported immediately before the Chemicals Control Act enters into force. In full view of the fact that imposing criminal sanctions on a person who fails to appoint a hazardous chemical supervisor, and that there is a growing disadvantage in the appointment of a hazardous chemical supervisor as well as Article 7 of the Addenda of the Chemicals Control Act shall be interpreted as a grace period for the appointment of a hazardous chemical supervisor.

④ Even if a hazardous chemical supervisor should have participated in the transfer of LAD100, which is a hazardous chemical, around March 9, 2015 after the enforcement of the Chemicals Control Act, the person subject to punishment pursuant to Article 59 Subparag. 1 and Article 13 Subparag. 4 of the Chemicals Control Act should be deemed to be “a person who has not participated in loading, unloading, or moving to another hazardous chemical handling facility (a person handling hazardous chemicals)” and it is difficult to deem that the hazardous chemical supervisor means a hazardous chemical supervisor who has not participated in the act of handling hazardous chemicals, and it is also unreasonable to impose criminal liability on him/her that he/she failed to comply with the standards for handling hazardous chemicals on his/her employees or employees while he/she did not appoint a hazardous chemical supervisor.

3. Conclusion

Therefore, since all the facts charged against the Defendants constitute a case where there is no proof of facts constituting a crime, the court rendered a judgment of innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act, and did not render a judgment of innocence to the Defendants pursuant to the proviso of Article 58(2) of the Criminal

It is so decided as per Disposition for the above reasons.

Judges Lee Young-sung