Even if Article 27(2) [Attachment 8] of the former Enforcement Decree of the Industrial Safety and Health Act provides that “a mobile camera or other workshop”, as one of the machinery and equipment that shall take necessary measures for the prevention of harm and danger, etc., whether Article 27(1) [Attachment 7] of the Enforcement Decree of the same Act should include and interpret a mobile camera in “cater” as one of the machinery and equipment that require protective measures for the prevention of harm and danger (affirmative)

Article 33 (1) and (2) of the former Occupational Safety and Health Act (amended by Act No. 9434 of Feb. 6, 2009); Article 67 subparagraph 1 of the former Occupational Safety and Health Act (amended by Act No. 8562 of Jul. 27, 2007); Article 27 (1) and (2) of the former Enforcement Decree of the Occupational Safety and Health Act (amended by Presidential Decree No. 21653 of Jul. 30, 2009); Article 27 (2) and (2) of the former Enforcement Decree of the Occupational Safety and Health Act (amended by Presidential Decree No. 21653 of Jul. 30, 2009); subparagraph 2 and 3 of [Attachment Table 7] subparagraph 5 [Attachment Table 8] of the former Enforcement Rule of the Occupational Safety and Health Act (amended by Ordinance of the Ministry of Labor No. 330 of Aug. 7

Defendant 1 and three others

Defendants and Prosecutor

Law Firm LLC (Law Firm LLC, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Jeju District Court Decision 2009No564 decided June 24, 2010

The part of the judgment of the court below on the defendants 1 and 2 is reversed, and that part of the case is remanded to the Jeju District Court Panel Division. The appeals by the defendants 3 and 4 are dismissed.

1. As to the grounds of appeal by Defendant 1 and Defendant 2

According to the reasoning of the judgment below, the court below found Defendant 1 and Defendant 2 (hereinafter “Defendant 2”) guilty of violating the Occupational Safety and Health Act on the ground that Defendant 1 did not take necessary measures to prevent hazards caused by machinery, apparatus, or other equipment to the part of the opening of this case, and it is difficult to view that Defendant 1 gave the Non-indicted 1 a direction to the Non-indicted 1 to leave the accusation room to the Non-indicted 2 on the date of the accident, even though Defendant 1 knew that the Non-indicted 1 was using a mobile typer without a license without the victim’s license, he left it alone. Defendant 1 cannot be deemed to have taken necessary measures to prevent the collision of workers on the ground that Defendant 1 and Defendant 2 (hereinafter “Defendant 2”) did not take necessary measures to prevent the death of workers due to the failure to take preventive measures against the violation of the Occupational Safety and Health Act and at the place at risk of fall.

In light of the records, the above measures of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, failing to exhaust all necessary deliberations, or by misapprehending the legal principles on the violation of the Occupational Safety

2. As to the grounds of appeal by Defendant 3 and Defendant 4

The court below found Defendant 3 and Defendant 4 guilty of the facts charged in the instant case against Defendant 3 and Defendant 4 on the ground that, in light of the circumstances acknowledged by the adopted evidence, the lower court did not place a minimum manager at the construction site of this case for the overall management and supervision of the instant construction and for the overall coordination of the entire process, it directly takes charge of part of the instant construction and the instant construction and the process, including the establishment of safety risks at the joint opening opening, etc., on the ground that the form of the contract can be recognized as constituting part of the contract.

In light of the records, the above measures of the court below are just and acceptable, and there is no violation of law by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the violation of the Occupational Safety and Health Act as alleged in the grounds of appeal

3. As to the Prosecutor’s Grounds of Appeal

Article 33(1) of the former Industrial Safety and Health Act (amended by Act No. 9434, Feb. 6, 2009; hereinafter the same) provides that "any machinery or apparatus prescribed by Presidential Decree as necessary for, or operated by, harmful or dangerous work shall not be transferred, leased, installed, or used, or displayed for the purpose of transfer or lease without taking protective measures for the prevention of harm and danger prescribed by the Minister of Labor." Article 27(1) of the former Enforcement Decree of the Industrial Safety and Health Act (amended by Presidential Decree No. 21653, Jul. 30, 2009; hereinafter the same shall apply) provides that "any machinery or apparatus that needs or is operated by power shall not be transferred, leased, installed, or used without taking protective measures for the prevention of harm or danger pursuant to Article 33(1) of the Act, or which shall not be displayed for the purpose of transfer or lease shall be as listed in attached Table 7, and the Enforcement Decree of the same Act provides that "any machinery or apparatus necessary for the prevention of harm and danger" in attached Table 7.

Meanwhile, Article 33(2) of the former Industrial Safety and Health Act provides that "a person who rents or borrows machinery, apparatus, facilities, buildings, etc. prescribed by Presidential Decree to another person shall take necessary measures to prevent harm and danger prescribed by Ordinance of the Ministry of Labor." Article 27(2) of the former Enforcement Decree of the same Act provides that "the machinery, apparatus, equipment, and buildings, etc. which shall be subject to measures necessary to prevent harm and danger prescribed by Ordinance of the Ministry of Labor shall be as specified in attached Table 8." Article 33(2) of the same Act provides that "a person who leases or borrows machinery, apparatus, facilities, and buildings, etc. shall take necessary measures to prevent harm and danger" under subparagraphs 2 and 3 of the same Article, and Article 33(2) of the former Enforcement Decree of the same Act provides that "a person who leases machinery, apparatus, facilities, and buildings, etc. shall immediately check and repair the relevant machinery, equipment, etc. to a person who leases or leases them pursuant to Article 33(2) and 27(2) of the former Enforcement Rule of the Industrial Safety Act.

In light of the above provisions of the relevant Acts and subordinate statutes, necessary measures for the prevention of harm and danger under Article 33(2) of the former Occupational Safety and Health Act refers to measures necessary for the prevention of harm and danger, such as checking and repairing the relevant machinery, apparatus, equipment, buildings, etc. which a person who rents or rents such machinery, etc. to another person is obliged to do so. Thus, protection measures for the prevention of harm and danger, such as the installation of excessive load prevention devices, etc. under Article 33(1) of the same Act differs from the contents and nature of the protection measures. Thus, it cannot be interpreted that the mobile scrap is excluded from the fixed seal under attached Table 7 of the Enforcement Decree of the same Act, on account of the circumstances prescribed by attached Table 8 of the Enforcement Decree of the same Act.

Nevertheless, the court below found Defendant 1 and Defendant 2 not guilty of this part of the facts charged on the violation of the Occupational Safety and Health Act due to the installation and use of a mobile cream without taking protective measures for the prevention of harm and danger, on the ground that although the former Occupational Safety and Health Act clearly separates clers and mobile clers under Article 33(1) and (2) of the same Act, the charges charged on this part (not guilty part of the judgment of the court below) raised based on Article 33(1) of the same Act, which is not a provision on mobile clers, is not a provision on the mobile clers, but a provision on this part (not guilty part of the judgment of the court below), which is a provision on the clers, constitutes a crime. Thus, the court below erred by misapprehending the legal principles on the interpretation of Article 33(1) and (2)

4. Conclusion

Therefore, the part of the judgment of the court below as to Defendant 1 and Defendant 2 should be reversed in an unlawful manner. Since the reversed part is in concurrent relation with Defendant 1 and Defendant 2, the part of the judgment of the court below as to Defendant 1 and Defendant 2 should be reversed in its entirety.

Therefore, the part of the judgment of the court below regarding Defendant 1 and Defendant 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeals by Defendants 3 and 4 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)