(영문) 대전고등법원 2018.10.11. 선고 2018누11980 판결

The judgment of the first instance is revoked. The Defendant’s disposition on September 21, 2017 rendered against the Plaintiff is revoked one month of business suspension of a specialized health management institution (from September 22, 2017 to October 21, 2017).

Reasons

1. Quotation of the first instance judgment

The reasoning of this Court is as follows, except for the addition of the attached Form of this case’s judgment, and the reasoning of the judgment is as stated in the judgment of the court of first instance. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

The 'health management institution' in the 2nd side of the 4th side shall be improved to a specialized health management institution.

The former Enforcement Decree of the Industrial Safety and Health Act (amended by Act No. 14788, Apr. 18, 2017; hereinafter referred to as the "Act") among Chapter 2 of the Act on the Second Instance 7 is regarded as the former Enforcement Decree of the Industrial Safety and Health Act (amended by Presidential Decree No. 28368, Oct. 17, 2017; hereinafter referred to as the "Enforcement Decree of the Act"). The "Enforcement Rule of the Act" among Chapter 2 of the Act on the Second Instance 10 is the former Enforcement Rule of the Industrial Safety and Health Act (amended by Ordinance No. 197, Oct. 17, 2017; hereinafter referred to as the "Enforcement Rule of the Act"). If ○○ 5's act of violation of the Act on the Second Instance 3, 2017 is the case's act of violation of the Act (hereinafter referred to as the "violation of the Act").

The plaintiff argues that the 3th 13th 13th 13th 13th 4th 13th 13th 1th 1th 1th 1th 2th 3th 2th 3th 3th 3th 201th 3th 3th 3th 201th 2th 3th 3th 3th 3th 3th 3th 3th 3th 3th 4th 3th 200

The health management business is related to workers' health and life, and it is essential to make efforts to prevent countermeasures after the occurrence of industrial accidents. The health management business is hard to recognize the effect immediately due to its nature, and even if the specialized health management institution neglects its business, the result of industrial accidents, etc. does not occur. Considering this, the Occupational Safety and Health Act provides that the Minister of Employment and Labor may designate and manage specialized health management institutions and order the Minister of Employment and Labor to cancel or suspend its business (Articles 15, 15-2, and 16 of the Act). In full view of the above characteristics of health management business, and the purpose of the Occupational Safety and Health Act (Article 1 of the Act), which aims to prevent industrial accidents and maintain and promote the safety and health of workers by creating a pleasant working environment (Article 1 of the Act) by clarifying the responsibility for the health management business suspension system as above, the term "if it neglects its business" can only be interpreted as "if it neglects its business to the extent that it loses objective legitimacy in light of its faithful general health management institution."

B) In light of the above legal principles, comprehensively taking into account the following circumstances acknowledged by comprehensively taking account of the overall purport of the pleadings as to this case’s health class, Gap’s evidence Nos. 1 through 4, and Eul’s evidence Nos. 1 through 7 (including branch numbers), each of the instant offenses constitutes not only a case of neglecting the business prescribed in the instant provision, but also a case of hindering entrusted safety management.

(1) A health officer is obligated to assist and guide on the notification or keeping of the substance safety and health management data, to assist and advise on the formulation of a health management plan, to conduct safety education, to recommend measures such as on-site inspections and guidance, and to keep and maintain the performance of duties (Article 17(1)3, 6, 9, and 13 of the Enforcement Decree of the Act). In addition, a health management institution entrusted by a health manager with the duties of a health manager to conduct health management business shall regularly check the health management status of the place of business as prescribed by the Ordinance of the Ministry of Employment and Labor, to submit a report on the health management status to the business owner as prescribed by the Ordinance of the Ministry of Employment and Labor, and to immediately notify the relevant business owner of any violation and specific improvement measures if any, as prescribed by the Ordinance of the Ministry of Employment and Labor, if any, and to prepare and keep a health management card for the employees of the place of business (Article 15-3, and 19-2 of the Enforcement Rule of the Act). However, the Plaintiff shall not prepare a health safety management report and health care report for Korea (hereinafter referred to Korea).

Although the safety education was not conducted, it did not follow-up management to improve the violation. The Plaintiff’s violation is deemed to have lost objective legitimacy in light of the standard of the specialized health management institution in good faith in performing his/her duties. Therefore, it constitutes a case of neglecting the business of the instant provision, which is a reason for business suspension.

(2) Although the Plaintiff violated the Occupational Safety and Health Act, such as failure to conduct a special health examination for hazardous chemical handling workers or failure to conduct special safety education for hazardous chemical handling workers, etc., the Plaintiff was subject to the disposition of a fine for negligence on the violation of the Occupational Safety and Health Act, and thus, it constitutes a case where the health management business was interrupted by the entrusted provision of this case.

○○ 5 No. 6 of the title 6 of the 6th page. [The Health Management Specialized Institution shall enter the date, time, gender, etc. of a worker's health consultation at the workplace when visiting the workplace, and the act of violation shall be established whenever the specialized health management institution did not enter the details of the worker's health consultation in the workplace management card and obtained the business owner's signature without entering the details of the worker's health consultation in the workplace management card. According to the evidence No. 7 (including the paper number), the number of times the Plaintiff omitted the preparation of the part of the worker's health consultation in the workplace management card exceeds the number of times the Plaintiff did not enter the part of the worker's health consultation in the workplace management card.]

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2. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.