The case holding that the defendant is not subject to punishment pursuant to joint penal provisions of Article 71 of the same Act on the grounds that the representative director of the company cannot be deemed as a business owner under the Occupational Safety and Health Act, and the defendant cannot be deemed as a person who did not perform his duty to prevent

The case holding that the defendant cannot be deemed as a business owner under the Industrial Safety and Health Act, on the ground that the representative director of the company cannot be deemed as a business owner under the same Act; the company's size; the relationship between the defendant's work and the company's work at the safety accident site; the company's responsibility for safety management of the company's work at the safety accident site was in charge by the director of the company; the defendant's work sharing relation between the defendant and the director of the site; the defendant who did not direct and supervise the employees at the safety accident site cannot be deemed as a perpetrator who did not take necessary measures to prevent the fall risk of workers at the accident site.

Article 2 subparag. 3, Article 23(3), Article 67 subparag. 1, and Article 71 of the Occupational Safety and Health Act

Supreme Court Decision 94Do660 delivered on May 24, 1994 (Gong1994Ha, 1868), Supreme Court Decision 95Do230 delivered on May 26, 1995 (Gong1995Ha, 2307), Supreme Court Decision 2004Do74 Delivered on May 14, 2004 (Gong2004Ha, 1101)

Defendant

Prosecutor

Documents of salary;

Attorney Lee Lee Jae-hoon

Suwon District Court Decision 2003Ma713 delivered on October 13, 2004

The judgment of the court below is reversed.

The defendant shall be innocent.

Process of Litigation

1. The facts charged before the change subject to an adjudication by the court below

The defendant, as the representative director of the non-indicted 1 corporation (hereinafter referred to as "non-indicted 1 corporation"), is a person responsible for the safety management of the ice shoot construction from among the construction works of Samsung Titco's 475-1 Samsung Titco's Gaco's dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump, etc. at the construction site.

2. The judgment of the court below

The lower court acquitted the Defendant of the above facts charged, following the summary of the Defendant’s arguments as set forth in paragraph (1)(B).

A. Defendant’s assertion

The Defendant asserts that, in this court, the assets of Nonindicted Co. 1’s representative director were 5.3 billion won (as of 2003), the sales amount was 9.9 billion won (as of 2003), and the construction site was 25 business places nationwide around May 22, 2003 in which the accident of this case occurred, and that the construction site of this case was executed by selecting a person responsible for the construction site of this case, and that the person responsible for the construction site of this case was Nonindicted Co. 2, who was the site chief. The construction of the above Samsung Home Puscer Building was actually completed on May 15, 2003, one week prior to the occurrence of the accident of this case. Nonindicted Co. 1 also completed the construction of the ice Puscer Building and completed it at the construction site, and that the Defendant did not neglect his duty of care in relation to the safety of the victim of this case while dispatching Nonindicted Co. 2 to the site at the time of the accident to prevent the occurrence of safety accident.

(b) Markets:

The representative director of the non-indicted 1 corporation who was in exclusive charge of construction work at the scene of the accident and was not responsible for the above construction work at the scene of the non-indicted 2 corporation. The representative director of the non-indicted 2 corporation who was not under command and supervision over the construction work at the site of the non-indicted 1 corporation cannot be deemed to have specific and direct duty of care to take detailed measures for each individual work in preparation for the accident in violation of safety rules (see, e.g., Supreme Court Decision 89Do1618, Nov. 24, 1989). According to the records, the non-indicted 1 corporation's total assets amounted to 5.9 billion won, total sales amount of the non-indicted 203 corporation's construction work at the site of the non-indicted 2 corporation and the non-indicted 2 corporation's non-indicted 5's non-indicted 1 corporation's non-indicted 1 corporation's non-indicted 2 corporation's non-indicted 2 corporation's non-indicted 2 corporation's non-indicted 24.

Alteration of indictment at the trial of the political party;

In the trial for the public prosecutor, the name of the crime of this case is in violation of the Occupational Safety and Health Act from "occupational Negligence, etc." through legitimate procedures, and the applicable provisions of the Industrial Safety and Health Act from "Articles 268, 30" to "Article 67 subparagraph 1, and Article 23 (3) of the Industrial Safety and Health Act", and "the defendant is the representative director of the non-indicted 1 corporation, and the defendant is the owner of the ice ice Tracco Corporation construction among the construction works of Samsung Titccop, 475-1 located in Samsung Titco, Gacer's dump Corporation's dump construction in the above construction site, and the court below's order was crashed at the above construction site and failed to take all necessary measures to prevent such danger and injury as the defendant's 4th floor and the above construction work site is located at a height of 5.2m, and thus, the court below's order was crashed to prevent such danger and injury."

Judgment on facts charged after the change subject to the judgment by this Court

1. Judgment of the court below ex officio destruction

As above, since the subject of the judgment of the court below was changed in the trial due to changes in the subject of the judgment of the court below according to the changes in the indictment that was made in the trial, the judgment below that was the subject of the judgment prior to the changes cannot be maintained. Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without considering the prosecutor’s assertion on the grounds of appeal

2. Determination:

According to the records of this case, non-indicted 1 corporation was in charge of total assets in 2003 KRW 5.3 billion, total sales in 2003 KRW 9.9 billion, and around May 22, 2003, the date of the accident of this case, the place of business of the non-indicted 1 corporation reached several hundreds of society. The non-indicted 1 corporation ordered the non-indicted 1 corporation to dismantle the above 1 corporation's work site with the victim's 475-1 construction work from February 24, 2003 to May 15, 203, the non-indicted 1 corporation was in charge of dismantling the above ice 1 corporation's ice removal from the 475-1 construction work at the 5th floor of the 2003 city, and the non-indicted 1 corporation ordered the non-indicted 1 corporation to dismantle the 5th floor of the above 1 corporation's ice removal work at the time of death.

The application of the penal provisions under Article 67 subparagraph 1 of the Industrial Safety and Health Act (hereinafter referred to as the "Act") and Article 23 (3) of the same Act is clear by the provision itself that the person is a business operator. However, Article 71 of the Act provides that if a representative of a corporation, or an agent, employee (including a supervisor), or other worker of a corporation or individual commits an offense under Articles 67 through 70 in connection with the business of the corporation or individual, not only shall the offender be punished, but also the corporation or individual shall be punished by the penal provisions under each Article. The purpose of this provision is to punish both the offender and the individual if the corporation or individual who is a business operator does not directly commit an offense under each Article. Thus, the penal provisions under this provision is subject to the penal provisions under each Article against the business operator (see Supreme Court Decisions 95Do230, May 26, 1995; 204Do47, May 14, 2004).

However, "business owner" under Article 2 subparagraph 3 of the Act refers to a business owner who is responsible for the calculation of business profits and losses, and if an employee of the contractor who has been awarded a contract for the construction works is engaged in the work at the construction site, the company may be deemed to be a business owner under the law, but the representative director of the company shall not be deemed to be a business owner under the law (see Supreme Court Decision 94Do660 delivered on May 24, 1994), and in this case, the defendant who is the representative director of the non-indicted 1 corporation is not a business owner under the law.

In addition, considering the size of the non-indicted 1 corporation, the relationship between the defendant's work and the non-indicted 1 corporation's work at the individual site, the safety management responsibility for the work of the non-indicted 1 corporation at the accident site of this case was in charge of the non-indicted 2, who is the site manager of the non-indicted 1 corporation, and the relationship between the defendant and the non-indicted 2, etc., it shall not be deemed that the defendant who did not direct and supervise the workers at the accident site of this case is an actor who did not take necessary measures in order to prevent the workers from falling

In addition, there is no evidence to acknowledge the facts charged after the alteration to the defendant.

3. Conclusion

As above, since there is no evidence to prove the facts charged after the change of the facts charged subject to the judgment by the court, there is no evidence to prove the facts charged, it is so decided as per Disposition by the assent of the Criminal Procedure Act to sentence the defendant not guilty.

Judges Yu Young-nam (Presiding Judge)