(영문) 청주지방법원 2010.12.2. 선고 2010구합1502 판결

The Defendant’s disposition of business suspension for three months from July 5, 2010 against the Plaintiff and the disposition of business suspension for two months from September 15, 2010 shall be revoked respectively.

Reasons

1. Details of the disposition;

(a) Vacancy of registered human resources;

(1) On August 7, 2009, the Plaintiff prepared human resources, facilities, and equipment standards under the Occupational Safety and Health Act (hereinafter “Act”) and completed business registration, and subsequently dismantled and removed asbestos contained in a building.

(2) In order to ensure the durability of the registration system for asbestos dismantling and removal business, the Defendant conducted an overall inspection on the relevant business entity, and conducted the Plaintiff’s registration requirements on May 31, 2010. (3) As a result, the Plaintiff revealed that the requirements of human resources among the statutory registration requirements were not met for a considerable period. As a result, the Defendant recommended the Plaintiff to immediately employ the registered human resources under subparagraph 1(b) of attached Table 10-4 of the Enforcement Rule of the Act, which was vacant as of the inspection date, and the Defendant reported the completion of corrective measures to the Plaintiff after employing B meeting the said standards.

(4) After making a prior decision on June 21, 2010, the Defendant issued a disposition suspending the work of dismantling or removing asbestos for three months from July 6, 2010 to October 5, 2010 on the ground that the Plaintiff violated Article 38-4(6) of the Act because the Plaintiff failed to meet the human resources standards among the registration requirements as follows (hereinafter “instant disposition”).

A business entity engaged in dismantling or removing asbestos shall employ a person who has completed education for the process of dismantling or removing asbestos, who has completed an education determined and publicly notified by the Minister of Labor (hereinafter referred to as "education for the process of dismantling or removing asbestos") concerning methods of dismantling or removing asbestos, methods of wearing protective outfits, etc., under Article 38-4 (1) of the Occupational Safety and Health Act and subparagraph 1 (a) of attached Table 10-4 of the Enforcement Rule of the same Act, or who has completed an education for the process of removing asbestos for at least two years, as a person who has completed an education for the process of dismantling or removing asbestos under subparagraph 1 (a) of the same attached Table. Nevertheless, the Plaintiff, who is a business entity engaged in dismantling or removing asbestos, did not meet the requirements for registration prescribed in subparagraph 1 (a) of the attached Table 10-4 from August 14, 2009 to 30 days 10 days 20 days 20 days 20 or 17 days 10 days 20 days 20.

(1) On June 4, 2010, the Plaintiff was awarded a contract for removal of toilets among D’s repair and floor replacement works (hereinafter “instant construction”). On June 8, 2010, the Plaintiff submitted a report on asbestos dismantling and removal works for which the construction period was from June 12, 2010 to June 30, 2010 to perform asbestos removal works containing 29.07 meters in total of the natural materials and partitions of toilets (hereinafter “instant construction”). (2) On June 9, 2010, the Plaintiff suspended the construction period from June 12, 2010 to June 10, 2010 to June 30, 2010 (hereinafter “from June 12, 2010 to June 16, 2010 to June 28, 2010 to June 30, 2010 to June 30, 2010).

A business entity engaged in dismantling or removing asbestos shall, without delay, submit a report on the change of asbestos dismantling or removal works to the head of the local labor office having jurisdiction over the location of the place where asbestos dismantling or removal works are located. Nevertheless, the Plaintiff, a business entity engaged in dismantling or removal of asbestos, among D toilet repair works located in Yeong-gu E in Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, for dismantling or removal of asbestos containing asbestos (29.07 square meters at night). On June 8, 2010, the report period for dismantling or removal of asbestos was reported to the Defendant from June 12, 2010 to June 30, 2010 without reporting the change of the asbestos dismantling or removal works for the decommissioning period. However, from July 28, 2010 to July 30, 2010, the Plaintiff, who is the business entity engaged in dismantling or removal of asbestos, dismantled and removal of the toilet containing 90.36 meters at night.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, 12, 14, and 15 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the first disposition is lawful.

A. The plaintiff's assertion

(1) The Plaintiff first becomes aware through prior notice of the instant disposition that the Plaintiff may be subject to sanctions for suspension of business if more than one designated personnel becomes vacant for not less than two months during the registration period. Since the relevant laws and regulations did not set the criteria for administrative dispositions based on the period of vacancy of the designated personnel, the instant disposition was made without any grounds and is unlawful.

(2) The Defendant ordered corrective measures on this issue, and the Plaintiff immediately completed corrective measures, but the instant disposition on the same ground is unlawful to impose double risk and disadvantage.

(3) The Plaintiff did not meet the requirements of human resources temporarily due to difficulties in securing existing human resources as well as securing new human resources. Moreover, upon the recognition of the qualification of Magras, the Plaintiff employed Sgras F of the article from August 14, 2009 to September 21, 2009, by misunderstanding that the Plaintiff constitutes a construction engineer in the field of civil and construction as referred to in this item, and did not know that the registered personnel should be full-time, and filled up the vacant human resources immediately after being aware of the mistake. If the degree of the violation is insignificant and it is deemed that the short-term violation can be corrected, corrective measures may be ordered in lieu of individual business suspension standards only in the case of the first violation pursuant to attached Table 20 of the Enforcement Rule of the Act. Accordingly, the Defendant ordered the Plaintiff to take corrective measures or may order the Plaintiff pursuant to Article 15-3 of the Act.

Despite the fact that the imposition of a penalty surcharge may sufficiently achieve its administrative purpose, the instant disposition ordering the suspension of business for three months in danger is unlawful against the principle of proportionality.

B. Determination

(1) Grounds for the instant disposition

(A) Article 30-8 of the Enforcement Decree of the Act provides that a person who intends to be registered as an asbestos dismantler or removal business entity shall have specialized human resources necessary for dismantling or removing asbestos, such as construction engineers in the fields of civil engineering and construction, and facilities and equipment for safe dismantling or removal of asbestos, such as sound pressure equipment and sanitation equipment. Accordingly, attached Table 10-5 of the Enforcement Rule of the Act provides that a specific registration requirement shall be determined by Ordinance of the Ministry of Employment and Labor. In accordance with Article 80-4 of the Act, at least one person who has qualified for construction in the fields of civil engineering and construction under the Construction Technology Management Act or related issues under the National Technical Qualifications Act and has completed education determined and announced by the Minister of Labor concerning methods of dismantling or removal of asbestos (hereinafter referred to as “education for asbestos dismantler or removal”), and that a person who has been engaged in practice for at least two years in the field of civil engineering and construction, and that a person who has completed the training course for dismantling or removal of asbestos under Article 16-2 of the Enforcement Rule of the Act shall be determined as one person or more than one person who has failed to meet the above requirements for suspension or removal.

(B) The fact that the Defendant stated in the notice of prior disposition that “if one or more designated personnel are vacant for more than two months during the period of registration due to the fact of the cause of the disposition,” is merely a requirement or ground for disposition that the period of disqualification is more than two months, not a requirement or ground for disposition, but an internal guidelines have been applied by taking into account the past administrative disposition cases in order to properly adjust the level of disposition in a specific law enforcement, and thus, it cannot be deemed that the relevant law did not establish the criteria for administrative disposition according to the period of vacancy of designated personnel, or that the instant disposition was taken without any

(2) The corrective measures and the corrective measures ordered by the Defendant for the suspension of business are to confirm the state of violation of the Plaintiff’s law and recommend correction, which is not a new legal obligation, but a separate sanction is not imposed in the event that the Defendant does not comply with the corrective measures. Therefore, this is not a disadvantageous measure that directly changes the Plaintiff’s legal position. Therefore, even if the Defendant first issued the corrective measures to the Plaintiff and then issued the corrective measures again to the end of the corrective measures, this does not constitute a second risk.

(3) Whether the principle of proportionality is violated

Even if the Plaintiff had well known about the requirements for human resources, or had mistakenly misunderstood the contents thereof, it cannot justify the Plaintiff’s breach of its duty to observe the requirements for human resources. Since the requirements for human resources of “A” during the period of registration do not meet the requirements for human resources of “A” for 108 days and “B” for almost all the periods, the degree of violation of the provisions of the law cannot be deemed to be minor.

Although the Act provides that a penalty surcharge may be imposed on a vicarious safety management institution in lieu of business suspension, the Act does not apply to asbestos dismantling or removal business operators, so there is no ground to impose a penalty surcharge in lieu of business suspension, such as the plaintiff's assertion.

In full view of all these circumstances, the instant disposition is too excessive to deviate from or abuse the discretion or is not contrary to the principle of proportionality to impose a penalty surcharge.

(4) The disposition No. 1 of this case is lawful, and the plaintiff's assertion disputing this is without merit.

4. Whether the secondary disposition is legitimate.

A. The plaintiff's assertion

(1) The instant disposition is unlawful as it lacks legal basis, on the grounds that there is no provision on the duty to report the change in the law.

(2) At the time of the contract for the instant construction, the period of the toilet removal construction from June 12, 2010 to July 30, 2010 was set. However, when the Plaintiff’s employee submits a work report to the Defendant, the period was erroneously stated by mistake until June 30, 2010. The Defendant’s disposition of this case immediately without any administrative guidance or supplement request without disregarding such circumstance constitutes deviation and abuse of discretionary power.

B. Determination

(1) Grounds for the instant disposition

(A) Article 15-2(1)4 of the Act provides that the Minister of Employment and Labor may cancel the designation of a vicarious safety management institution or order the suspension of business for a fixed period not exceeding six months, and Article 38-4(6) provides that Article 15-2 shall apply mutatis mutandis to asbestos dismantling or removal business entities and Article 30-10 of the Enforcement Decree shall not perform the duty to report or keep documents under Article 38-4(3) of the Act. Article 38-4(3) of the Act provides that a business entity engaged in asbestos dismantling or removal shall report to the Minister of Employment and Labor before dismantling or removal of asbestos and preserve documents stating matters prescribed by Ordinance of the Ministry of Employment and Labor. Article 38-4(5) provides that a business entity shall file a report on asbestos dismantling or removal with the Minister of Employment and Labor before dismantling or removal of asbestos and that a business entity under Article 80-7(1) of the Enforcement Rule of the Act shall file a report on asbestos dismantling or removal or removal with the head of a local employment and labor office without delay.

(B) A business entity engaged in dismantling or removing asbestos shall prepare and submit a work report at least seven days before dismantling or removing asbestos, and the duty to report is naturally included in the duty to report where the content and period of the work originally reported are changed. As such, the Minister of Employment and Labor may order the business entity engaged in dismantling or removing asbestos to revoke the registration or suspend its business when it violates the duty to report.

(2) Whether the principle of proportionality is violated

(A) If Gap evidence Nos. 15, Eul evidence Nos. 15, Eul evidence Nos. 16, 17, and 21 show the purport of the whole pleadings, the plaintiff started work for dismantling asbestos from June 12, 2010 to June 14, 2010, and completed work of 208.71m of the total area of 299.07m and submitted a report on the result of measuring asbestos concentration on June 16, 2010 to the defendant. After 30 days from July 28, 2010 to July 30, 2010, it is difficult to find that the plaintiff again prepared a report on the result of measuring asbestos concentration on July 30, 2010, and submitted it to the defendant, which corresponds to the remaining 90.36m20m of asbestos concentration to the defendant, and it is difficult for the plaintiff to present the report at the end of 10th six days from the end of the work at school.

(B) According to the above evidence, the Plaintiff had the record of being subject to a sanction for the suspension of duty for 0.5 months even before the Plaintiff committed a violation of the duty to report, and the criteria for the second violation of the duty to report under attached Table 20 of Article 143-2 of the Enforcement Rule of the Act are two months for the suspension of duty. Thus, the instant disposition is not particularly excessive because it is in conformity with the criteria of the above Enforcement Rule. Since asbestos causes fatal diseases, such as respiratory diseases, as well as lung cancer, it is necessary to protect workers engaged in dismantling or removing asbestos from its harmfulness, and it is necessary to force asbestos dismantlers to properly perform the duty to report, etc. under the Act. In full view of these circumstances, the instant disposition does not violate the principle of proportionality by abusing discretion and abusing it.

(3) The disposition No. 2 of this case is lawful, and the plaintiff's assertion disputing this is without merit.

3. Conclusion

All of the plaintiffs' claims are dismissed.