2012Gudan1765 Revocation of business suspension

Korean Personnel Bank Co., Ltd.

The Administrator of Busan Regional Employment and Labor Agency

March 6, 2013

March 27, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of business suspension for one month against the Plaintiff on August 13, 2012 shall be revoked.

1. Details of the disposition;

A. On April 23, 2012, the Plaintiff completed registration with the Korea Occupational Safety and Health Agency as a basic and health education institution for construction business (hereinafter “basic education institution for construction business”), and provided education in the field of construction safety and industrial health for daily workers.

B. On June 11, 2012, the Defendant: (a) conducted occasional inspections on whether the basic educational institution for construction business owns human resources and facilities and management of students; (b) conducted basic health and safety education; (c) pursuant to Article 31-2(3) of the Occupational Safety and Health Act (hereinafter “the Act”) and Article 37-2(2) of the Enforcement Rule of the Occupational Safety and Health Act (hereinafter “Enforcement Rule of the Occupational Safety and Health Act”), when the basic educational institution for construction business conducts basic health and safety education, it uses teaching materials that meet the standards for human resources in attached Table 8-2; and (c) placed persons that meet the standards for human resources in attached Table 6-3 of the Enforcement Decree of the Occupational Safety and Health Act (hereinafter “Enforcement Decree”), but the Plaintiff did not use teaching materials that meet the standards for education in attached Table 8-2; and (d) placed human resources that were registered in the field of construction and health education in accordance with attached Table 10-3 of the Enforcement Decree of the same Act (hereinafter “the construction site”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, 2-2, Eul evidence 8, the purport of the whole pleadings

2. Determination on the lawfulness of the instant disposition

A. The plaintiff's assertion

1) Although the Defendant did not consent to the delivery method by facsimile, the instant disposition was notified to the Plaintiff by facsimile. Thus, the instant disposition is null and void in violation of Article 14 of the Administrative Procedures Act.

2) The Plaintiff provided education using a summary of the teaching materials distributed by the Industrial Safety and Health Authority affiliated with the Ministry of Employment and Labor, which is using teaching materials suitable for the curriculum under attached Table 8-2 of Article 37-2(2) of the Enforcement Rule.

3) B served as the occupational safety and health officer, officer, director of occupational health department, director of occupational safety bureau, etc. in the Ministry of Employment and Labor, and met the qualification requirements under item (a) of attached Table 6-32 of the Enforcement Decree, as well as item (b) of the human resources criteria, and thus, B was eligible to teach all the curriculum under subparagraph 2 of attached Table 8-2 related to Article 37-

4) Article 15-3(1) of the Act provides that when ordering the suspension of business pursuant to Article 15-2 of the Act, where the suspension of business is deemed likely to cause severe inconvenience to users or undermine the public interest, a penalty surcharge may be imposed in lieu of the suspension of business. In light of the fact that the Plaintiff, at the time of its registration as a basic educational institution for construction business, has three instructors with qualifications in the field of construction safety, such as C and D with qualifications in the field of industrial health and hygiene, other than B at the time of its registration as a basic educational institution for construction business, but the Plaintiff inevitably proceeded with B’s lectures as a result of unilaterally refusing lectures by two instructors except B immediately before the education, and the Plaintiff’s execution of the instant disposition may result in the failure to provide education and the closure of business due to the enormous loss of trust. Thus, the instant disposition is unlawful because the disadvantage suffered by the Plaintiff compared to the public interest to be achieved due to the instant disposition is too large.

B. Determination

1) In full view of the purport of the entire pleadings as to the assertion of violation of the Administrative Procedures Act: (a) the Defendant sent the notice of the instant disposition to the Plaintiff by mail on August 13, 2012; and (b) the Plaintiff received the said notice on August 14, 2012, and thus, the Plaintiff’s assertion that the instant disposition was not effective in violation of Article 14 of the Administrative Procedures Act is without merit.

2) As to the assertion that an educational teaching material suitable for the educational content specified in attached Table 8-2 of the Enforcement Rule was used

Comprehensively taking account of the overall purport of the arguments in the statement of evidence Nos. 1, 6, 7, and 10, Eul, an instructor of the plaintiff, who is an instructor of the plaintiff, shown the screen picture of the "in the course of conducting basic education for construction business on June 11, 2012," 08:0 through 09:00, to 09:00, to 12:00, the fact that the plaintiff conducts oral education without teaching materials or PPT materials, can be acknowledged. According to the above facts of recognition, it is difficult to view that the plaintiff used teaching materials suitable for the education curriculum under the attached Table 8-2 of Article 37-2 (2) of the Enforcement Rule, and therefore, this part of the plaintiff's assertion is without merit.

3) As to the assertion that an instructor meeting the human resources criteria in attached Table 6-3 of the Enforcement Decree was placed

In light of the purpose of legislation, etc. of Article 31-2(2) and (3) of the Act, Articles 26-11 and 26-13 of the Enforcement Decree of the Act, Article 37-2(2) of the Enforcement Decree of the Act, and Article 37-2(2) of the Enforcement Decree of the Act, the registration of a basic educational institution for construction business, such as a corporation that intends to provide basic safety and health education, must meet the requirements for the registration of human resources, facilities, equipment, etc. as provided in attached Table 6-3 of the Enforcement Decree, and such criteria for human resources, facilities, and equipment are not only

In full view of the purport of the entire pleadings in the statement of evidence No. 1, No. 1-2, No. 2, No. 2, and No. 2 through 5, No. 11, 12, 15, and 16, the Defendant, prior to rendering the instant disposition, constitutes “where the Plaintiff violated the educational methods prescribed by Ordinance of the Ministry of Employment and Labor, such as basic safety and health education for construction work, including the construction site No. 2 Section A/T/K site,” prior to rendering the instant disposition, on the ground that the Plaintiff constitutes “where the Plaintiff violated the education methods prescribed by Ordinance of the Ministry of Employment and Labor, such as basic safety and health education for construction work, etc., such as construction site No. 1-1, No. 1-2, No. 1-2, and No. 1-2, and No. 2, No. 11-2, and No. 16-2, 2012; the Plaintiff, who meets the qualifications of each of the education methods prescribed by Ordinance of the Ministry of employment and Labor.

According to the above facts, the plaintiff, which is a basic educational institution for construction business at the construction site of this case, was equipped with only persons (B) who meet the human resources criteria among the above human resources criteria, and did not meet the human resources criteria under item (b). Thus, this part of the plaintiff's assertion is without merit (one of the reasons for the disposition of this case is that "one of the reasons for the disposition of this case conducted basic safety and health education by taking full charge of common education by Eul, which is registered with the human resources criteria in attached Table 6-3 of the Enforcement Decree." However, in light of the reasons for the disposition of this case and the laws and regulations based on the disposition of this case sent to the plaintiff prior to the disposition of this case, the reason that the plaintiff failed to place a person meeting the above reasons for the disposition and the human resources criteria can be deemed to be identical to the factual basis).

4) As to the deviation and abuse of discretion

In light of the fact that the instant disposition was taken in accordance with the disposition standards under Article 143-2(1) and attached Table 20-2(d) of the Enforcement Rule, and Article 15-3(1) of the Act, where the order of business suspension is to be issued pursuant to Article 15-2 of the Act, if it is deemed that the business suspension is likely to cause serious inconvenience to users or undermine the public interest, it may impose a penalty surcharge in lieu of the order of business suspension, but whether the order of business suspension is imposed or whether the penalty surcharge is imposed, and the data submitted by the Plaintiff alone are difficult to deem that the instant disposition is likely to cause serious inconvenience to users or undermine the public interest, and the basic construction safety and health education for daily workers is aimed at maintaining and improving the safety and health of workers by preventing industrial accidents. Thus, taking into account the fact that the instant disposition is to achieve the above public interest, it is difficult to deem that the instant disposition is unlawful even if it is alleged by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges, white leaves