(영문) 서울행정법원 2020.5.15. 선고 2019구합73482 판결

A. On December 13, 2012, the Plaintiff was designated as an asbestos inspection institute by the Minister of Employment and Labor (registration number: B) as a company that operates asbestos inspection business or asbestos inspection service business.

B. On February 1, 2016, the Plaintiff entered into a service contract for asbestos inspection (hereinafter “instant service contract”) with respect to C apartment reconstruction and rearrangement project association (hereinafter “instant reconstruction association”) and Gangdong-gu Seoul Metropolitan Government C apartment (hereinafter “instant apartment”). The details of the instant service contract are as follows.

3. Service scale: The project site area - the number of existing households of the square meters (163,883.5 square meters) (163,883.5 square meters) (* the area 626,232.5 square meters less the preserved area 84,468.7 square meters) - the term of contract for multi-family housing 5,930 households and ancillary and welfare facilities 309 households: the contract amount: the period from the contract date to the completion of dismantling or removal of asbestos: the 5. contract amount: the 1,884,00,000 won (value added tax separate); the method of payment. 6. 7. Scope of business: the preparation of the main inspection and the guidance of asbestos; the measurement of the concentration of asbestos scattering around the workplace after the removal of asbestos; the measurement of the concentration of asbestos scattering, the measurement of the concentration of asbestos scattering around the workplace during the dismantling or removal of asbestos; all other work related to

Article 1 (Basic Principles) (1) of the Terms and Conditions of Asbestos Survey Services and the plaintiff shall cooperate with the reconstruction association in this case and faithfully perform the contract. (2) In the implementation of this service contract, the reconstruction association and the plaintiff shall comply with the provisions of Article 38 (2) of the Occupational Safety and Health Act and the asbestos inspection method under Article 80-4 of the Enforcement Rule of the Occupational Safety and Health Act. Article 4 (Methods of Asbestos Inspection) (1) of the Preliminary Investigation: Classification of Construction Materials Contain Division B of Asbestos-containing materials through construction drawings, facility production, user history, etc., different nature and state from each other regarding removal of a building or facility.

C. On September 27, 2017, the Defendant rendered a disposition for the suspension of business for one month (period: from September 29, 2017 to October 28, 2017) on the ground that the Plaintiff failed to comply with the asbestos inspection method (i.e., non-compliance with asbestos content substances due to the non-compliance with sample collection).

D. From November 1, 2017 to June 15, 2018, the Plaintiff visited C Apartments in accordance with the instant service agreement and conducted asbestos inspection (hereinafter “asbestos”). On July 17, 2018, the Plaintiff submitted an asbestos inspection report on the instant apartment buildings D and Edong, etc. to the instant reconstruction association. E. The Defendant issued an asbestos inspection report on January 21, 2019 to the Plaintiff, respectively, on materials containing 5% of white asbestos (including approximately 15 meters in the floor board of the instant apartment housing) and the cement floor located below the living room floor ( approximately 20 meters in the instant apartment housing), and on the ground that it constitutes a second violation of Article 28-2 of the former Enforcement Rule of the Industrial Safety and Health Act (amended by Ordinance of the Ministry of Employment and Labor No. 1365, Jan. 27, 2019; hereinafter referred to as “former Enforcement Rule No. 2015-27, Mar. 27, 2019);

F. On January 22, 2019, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission. However, the Central Administrative Appeals Commission rendered a ruling dismissing the said claim on July 16, 2019.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 8-1, 10-1, Eul evidence 5 and 8, the purport of the whole pleadings

2. The plaintiff's assertion

For the following reasons, the instant disposition should be revoked as it is unlawful.

A. Non-existence of grounds for disposition

Since the completion of the apartment building of this case, there was no building material strength on the ground that it was about 40 years since the completion of the apartment building of this case, and the design drawing alone was insufficient to verify the building material originally constructed on the apartment of this case. The plaintiff was conducting a preliminary investigation on whether or not asbestos was contained in the apartment of this case. The plaintiff was aware that there was a door board containing asbestos between the living room and the main floor of the road of this case (in order to attach morar, cement brick, etc.) and the first concrete floor. In order to complete the asbestos inspection, it does not constitute an area of asbestos inspection. Accordingly, it is not reasonable to consider that the plaintiff violated the above method of asbestos inspection in front of the entrance, chill, front of the kitchen, and the bathing room and the main floor of this case. However, it is not reasonable to consider that the plaintiff violated the method of asbestos inspection after removing asbestos from the living room of this case.

(b) the deviation and abuse of discretionary authority;

As in the instant case, if asbestos inspection method is deemed to have been violated solely on the ground that material containing asbestos was detected, it is nothing more than compelling the Plaintiff, which is merely an asbestos inspection institution, to perform the removal work beyond the technical and budgetary limit. Furthermore, the instant reconstruction association conducted the removal of the living room and the main floor of each apartment house of this case before and after the instant disposition, under consideration of the delay before and after the instant disposition, and determined that it is difficult to deem that there was a cause attributable to the Plaintiff’s asbestos inspection. This is because the asbestos inspection report at issue in the instant disposition was entirely withdrawn and was not used for the actual purpose of asbestos dismantling and removal, and considering the fact that the Plaintiff already conducted asbestos inspection in relation to the instant disposition, there was an error of law that deviates from and abused discretion.

3. Relevant statutes.

Attached Acts and subordinate statutes, etc. shall be as listed.

4. Whether the instant disposition is lawful

(a) Facts of recognition;

1) The apartment building of this case was completed in around 1979, and at the first time, Radiags (Radiags, and air conditioners) were installed with heating equipment in the dwelling space and the bank. Since a large number of households have removed existing heating equipment and installed a boiler. On the first built concrete floor, there was a door board containing asbestos on the upper part of the concrete floor, and thus, in the case of the households that installed boiler without removing the door board containing asbestos, there existed a door board containing asbestos between tar and the first constructed concrete floor.

2) Around February 2018, the Plaintiff became aware that there may exist decorations containing asbestos between tar and the first constructed concrete floor among the roads where asbestos was conducted for the apartment of this case. The Plaintiff, after consultation with the reconstruction association, etc. of this case, decided to continue the asbestos inspection by cutting the front, front, and front part of the bathing room of each household, and collecting solid samples.

3) The asbestos inspection report submitted by the Plaintiff as of July 17, 2018 is indicated as follows with respect to the instant apartment F and G.

FG 3G Composition: ① a kitchen and living room, ② a toilet, ② a balcony, ④ a balcony, ④ a multi-use room, ⑤ a room of 3G : ① a kitchen and living room, ② a toilet, ② a balcony, ④ a balcony, ④ a multi-use room, ⑤ a warehouse, and 6 a room.

A person shall be appointed.

4) The companies engaged in the business of dismantling or removing asbestos on the apartment of the instant apartment are engaged in the business of dismantling or removing asbestos.

6. Obtaining a certificate of report on asbestos dismantling or removal from the head of the Seoul Eastern District Office.

5) On November 16, 2018, the head of the above Seoul Eastern District Office confirmed that, in the case of the apartment apartment F, the decorations located at the lower end of the three pages that overlaped above tar, and in the case of G, the decorations located between tar and the first built concrete floor included each asbestos.

6) On November 19, 2018, companies engaged in the business of dismantling or removing the instant apartment, they returned a certificate of report on asbestos dismantling or removal to the head of the above Seoul Eastern Site.

[Reasons for Recognition] A without dispute, Gap evidence Nos. 5, 8, 10, Eul evidence Nos. 2, 6, and 7, Gap evidence Nos. 4, 9, and 11 (including each number), the whole purport of the pleading, or the existence of grounds for disposition

(i) the significance and method of the asbestos inspection;

A) Asbestos is inhaled through an engine so as to cause diseases, such as asbestosis, malute, and waste cancer, by breaking it into the body of the body. Asbestos remains in the body of the body of the body without falling or green, and damages its organization and chromatic body. Asbestos leads to most cancer through 10 to 30 years divers when asbestos dust enters the body. Since there is such danger, Article 38-2(2) of the former Occupational Safety and Health Act provides that, in order to prevent damage caused by scattering asbestos in the process of demolition or dismantling, the owner, etc. of a structure or facility above a certain size of “the owner, etc. of the relevant structure or facility shall cause an asbestos inspection institution to dismantle or remove the relevant structure or facility; the type, location, and size of materials containing asbestos in the relevant structure or facility; the type and content of asbestos contained in the relevant structure or facility; and after dismantling or removing asbestos at least a certain size of asbestos, it is necessary to have the asbestos inspection institution conduct an inspection into the type and content of asbestos contained in the relevant structure or facility.

B) Article 80-5(1) of the former Enforcement Rule of the Industrial Safety and Health Act, upon delegation of Article 38-2(7) of the same Act, provides that the method of asbestos inspection under Article 38-2(2) of the former Enforcement Rule of the same Act shall be “a preliminary investigation as to whether asbestos is contained in a building drawing, facility production drawing, or user’s history, etc. (Article 1)”; “the nature and state of materials, etc. to be dismantled or removed shall be separated (Article 2)”; “the extraction of samples shall be divided into different parts under subparagraph 2 (Article 3) and subdivided into two separate parts (Article 80-5(3) of the former Enforcement Rule of the same Industrial Safety and Health Act; the public announcement of the former inspection and safety evaluation of asbestos delegated by Article 80-5(3) of the same Act shall be made within the same time as “the public announcement of the Ministry of Employment and Labor shall be made within the same shape or quality of materials; the public announcement of this case’s shape and shape shall be made within the same shape of asbestos.”

2) Determination1

A) In the case of the apartment apartment F of this case, the fact that the plate located at the lower end of the third page of the board that overlaps on the tar was containing asbestos is as seen earlier. The Plaintiff collected a large sample in the above three pages, but omitted an analysis as to the loss of a large sample taken from the board located at the lower end of the above three pages. This is obviously a violation of the asbestos inspection method stipulated under the former Industrial Safety and Health Act, which is attributable to the Plaintiff’s mistake, and even if it was impossible to collect the large sample of the board located at the lower end, it is also a violation of the method of asbestos inspection, which is apparent, if the upper part of the board did not collect the large sample from the lower end of the board clearly. Accordingly, it is reasonable to view that the Plaintiff omitted the collection and analysis of samples of materials containing asbestos in the course of asbestos inspection with respect to the above F, which constitutes a violation of the method of asbestos inspection stipulated under the former Industrial Safety and Health Act.

B) As to the above F, the Plaintiff asserts to the effect that the two pages overlap on tar even in the case of the above F, and that the first floor of Matar and the first constructed concrete was one board containing asbestos (the head of 8,14-15 pages, 10, 222 pages 2, 5 pages). However, in the case of the above F, R, the representative director of the Plaintiff, was prepared and submitted to the Defendant on November 1, 2018, stating that the first sample was collected in the process of analysis, but the analysis was omitted and indicated as asbestos without asbestos (No. 2-3 pages), and that the Plaintiff’s statement was made to the same effect (No. 2-13 pages, and No.7 evidence No. 71) in the process of administrative investigation (see, e.g., evidence No. 201). Thus, it is difficult to see that the Plaintiff did not have any specific evidence to have been written as evidence for an unlawful act of violation, such as the Plaintiff’s written a photograph or verification document.

C. Whether the discretionary authority is deviates or abused

1) Relevant legal principles

Whether a disciplinary administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual by objectively examining the content of the violation, which is the reason for the disposition, and the public interest to be achieved by the relevant act of disposition, and all the relevant circumstances (see, e.g., Supreme Court Decision 98Du11779, Apr. 7, 2000). In cases where a disposition standard is prescribed by Presidential Decree or Ordinance of the Ministries, such disposition standard itself does not conform with the Constitution or laws, or unless there are reasonable grounds to believe that the disciplinary administrative disposition in accordance with the above disposition standard is considerably unreasonable in light of the content of the violation, and the content and purport of the relevant Acts and subordinate statutes, it shall not be readily determined that such disposition deviates from the scope of discretion or abused the discretionary power (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 207).

2) Determination

Comprehensively taking account of the following circumstances revealed in light of the purport of the entire pleadings as seen earlier, it is difficult to view that, even if all of the circumstances alleged by the Plaintiff are considered, the extent of disadvantage that the Plaintiff would suffer from the disposition of this case is excessive, it is beyond or abused the scope of discretion. Accordingly, the Plaintiff’s assertion on this part

A) The provisions on asbestos surveys under the former Industrial Safety and Health Act aim at ensuring the objectivity and reliability of the results of asbestos surveys, which are very important public interest (see, e.g., Supreme Court Decision 2013Du14870, Nov. 28, 2013). Considering the risk of asbestos, asbestos surveys conducted by the Plaintiff has a significant impact on the construction site workers as well as the general public’s health, and furthermore, an administrative agency mainly depends on the results of an asbestos inspection institution’s inspection. Therefore, it is very important to properly prepare an asbestos inspection report through an adequate asbestos inspection. However, as seen earlier, the Plaintiff violated the asbestos inspection method stipulated under the former Industrial Safety and Health Act by omitting the collection and analysis of samples of materials containing asbestos.

B) In the case of the instant apartment F, it was easily confirmed that there was a door containing asbestos, if the Plaintiff walked on the two pages. The Plaintiff collected a sample from the three pages. However, the Plaintiff failed to verify the door containing asbestos due to the omission of some of the parts in the process of the collection. This ought to be deemed to have been gross negligence due to the Plaintiff’s violation of the asbestos inspection method stipulated under the former Industrial Safety and Health Act. In particular, even though the Plaintiff had a history of being subject to business suspension on one occasion due to the failure to collect a sample on September 27, 2017, even though it had already been subjected to business suspension on one occasion, it is inevitable to impose severe sanctions corresponding thereto.

C) Article 143-2(1) and [Attachment 20] Subparag. 2(c) of the former Enforcement Rule of the Industrial Safety and Health Act, upon delegation of Article 63-2(2) of the former Industrial Safety and Health Act, provides that the sanctions against “second violation” of the same content within the last two years, among “where an institution or asbestos inspection method prescribed by Ordinance of the Ministry of Employment and Labor and Labor and any other necessary matters are violated” pursuant to Article 38-2(6) of the same Act, shall be deemed “the month of suspension of business”. The instant disposition conforms to the above sanctions standards, and the said sanctions are not in itself inconsistent with the Constitution and laws, or cannot

D) The Plaintiff will suffer significant disadvantage due to the instant disposition. However, if the public interest to achieve the instant disposition is much superior to the disadvantage that the Plaintiff would suffer, and if the head of the Seoul Eastern District Office did not verify that the plate located in the apartment building F, etc. of this case contains asbestos, the result of asbestos inspection submitted by the Plaintiff as of July 17, 2018 was used as the basis for asbestos dismantling and removal. Thus, it is difficult to evaluate the situation in which the foregoing asbestos inspection report was withdrawn after the aforementioned verification as to the degree of mitigation of the instant disposition. Furthermore, Article 143-2(2) of the former Enforcement Rule of the Industrial Safety and Health Act provides that “The administrative disposition may be mitigated by taking into account the intention or negligence of the other party to the instant disposition and other circumstances, even if considering other circumstances asserted by the Plaintiff, it cannot be deemed that there was any error in the Defendant’s failure to reduce the sanctions in the instant disposition.

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, deputy judge;

Judge Ko High-han

Judges Yellow-nam

Note tin

1) Even if some of the sanctions are not recognized when a single sanction is imposed on various grounds for disposition, the remaining grounds for the disposition are only limited to the remaining grounds for disposition.

In a case where its legitimacy is recognized, a disposition may not be revoked by deeming it illegal (Supreme Court Decision 2015Du15 Decided June 15, 2017).

2826) As examined below, asbestos tanks prescribed by the former Enforcement Decree of the Industrial Safety and Health Act with respect to the apartment F in this case by the Plaintiff

Inasmuch as it is sufficient to recognize the validity of the instant disposition as a legitimate ground for sanctions against violation of the law, the remaining sanctions are imposed.

A separate judgment is not made on the ground (violation of asbestos inspection method with respect to the apartment G of this case).

2) As seen earlier, in the case of tar portion per household, whether the asbestos content falls under the same equal portion, of which degree is unclear.

for the purpose of this section, the type of samples must be collected and analyzed in an appropriate manner. The contents of the old Industrial Safety and Health Act concerning asbestos mentioned earlier.

(The collection of samples, etc. shall be separately conducted in consideration of the size of each of the same parts, and the purport thereof (the provision that the collection of samples shall be conducted in a different manner).

Considering that the appropriate method of collecting samples is appropriate in accordance with the current status of each household of the apartment of this case so that the existence of asbestos is not omitted.

After thoroughly conducting a preliminary investigation, the plaintiff takes and analyzes the method and number of samples suitable for the current status of each household.

from 'odle access' is frequent, and the head of a place with heavy water in front of the bath room and the head of a place with heavy water in front of the drinking room is forced to be flicker than another place.

C. "A" should take a sample in accordance with the circumstances of each household in the idea that the horse is heard and there is the highest possibility that the sample remains.

Only the front, front, and rear of a bath room of all the households, including this advance apartment G, regardless of the current status of the obligations, including this advance apartment G

A person who has conducted an asbestos inspection in the same manner as collecting solid samples after having been transferred to another person (No. 6 3-4). Ultimately, the Plaintiff is a person who has conducted an asbestos inspection.

Of the floor area 27.41m of the floor area, the number of pages containing asbestos is about 20m, and the status of the above G is not confirmed at all; and

There is a high room to regard it as a violation of one asbestos inspection method.