[1] Whether the above crime is established against the business owner on the sole basis of the fact that a dangerous work was conducted without taking any other possible safety measures in addition to the requirements for establishing a crime of violation of Articles 66-2 and 23(3) of the former Occupational Safety and Health Act and the safety measures as prescribed by the rules on industrial safety standards (negative)

[2] The case affirming the judgment below holding that in case where workers of a subcontractor company of a bridge basic rink and a bridge manufacturing company died of a head near the vertical steel bars due to a shortage in the number of steel support units during the steel-frame construction work, etc., the above subcontractor and its employees did not constitute a violation of the duty to take safety measures such as safety inspection required under Article 8-2 of the Industrial Safety Standards Act on the ground that the error in the construction method of not setting the appropriate construction method such as the number of steel support units or the order of installation according to the stage of the construction of the vertical steel bars construction work does not constitute a violation of Article 66-2 and Article 23 (3) of the former Industrial Safety and Health Act on the ground that the above subcontractor and the site warden, who is its employees, did not constitute a violation of the duty of care for the management and supervision of the construction work, such as supervision of the adequate quantity of steel supply cost for the prevention of the steel collapse, etc.

[1] Articles 23(3) and (4), and 66-2 of the former Industrial Safety and Health Act (amended by Act No. 9434 of Feb. 6, 2009); Article 8-2 of the Rules on Industrial Safety Standards / [2] Articles 30 and 268 of the Criminal Act; Articles 23(3), 66-2, and 71 of the former Industrial Safety and Health Act (amended by Act No. 9434 of Feb. 6, 2009)

[1] Supreme Court Decision 2006Do8874 Decided March 29, 2007 (Gong2007Sang, 638) Supreme Court Decision 2008Do7030 Decided May 28, 2009 (Gong2009Ha, 1051) Supreme Court Decision 2008Do7834 Decided September 9, 2010 (Gong2010Ha, 1943)

Defendant 1 and two others

Defendant 1 and one other and the prosecutor

Law Firm International Law Firm, Attorneys Ha Man-young

Changwon District Court Decision 2009No1197 decided Nov. 5, 2009

All appeals are dismissed.

Each ground of appeal is examined.

1. Judgment on the grounds of appeal by the prosecutor

Article 23(3) of the former Industrial Safety and Health Act (hereinafter “Act”) provides that an employer shall take necessary measures to prevent danger in the course of performing work, such as a place where workers might fall down at work, and the safety measures to be taken by an employer under Articles 23(4) through (3) of the same Act shall be prescribed by the Ordinance of the Ministry of Labor. The delegated rules on industrial safety standards (hereinafter “Rules”) specifically stipulate the necessary measures to be taken by an employer in order to prevent danger depending on the type of work, etc., and Article 66-2 of the Act provides that an employer shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding KRW 100 million if the employer violates the duty to take measures to prevent such danger. In full view of the aforementioned provisions, the crime of violation of Articles 66-2 and 23(3) of the Act is established only when an employer is aware of the risk of safety measures, such as safety measures, and such act does not constitute a violation under Article 23(3) of the Act.

In light of the above legal principles, the court below is just in holding that Defendant 1 and Defendant 3 were not in violation of the duty to take safety measures, such as safety inspection as stipulated in Article 8-2 of the Rules, on the ground that the error in the construction method without setting the appropriate work methods such as the number or order of the installation of the steel support unit according to the stage of the installation of the vertical steel bars does not constitute a violation of the duty to take safety measures, such as safety inspection as stipulated in Article 8-2 of the Rules,

2. Determination on Defendant 1 and 2’s grounds of appeal

A. As to the misapprehension of legal principle

In light of the above legal principles and records, although the court below acquitted Defendant 1’s violation of the duty of care for the management and supervision of construction works for which the method of work, such as the number of construction of steel support units, order of installation, etc., and the duty of safety inspection required under Article 8-2 of the Rules, on the premise that the violation of the duty of safety measures, such as the performance of safety diagnosis, is different, it is just that the court below convicted Defendant 2 of the crime of occupational negligence resulting in death, etc.,

B. As to the remaining grounds of appeal

After compiling the adopted evidence, the court below found Defendant 1 guilty of the crime of occupational negligence on the ground that the accident of this case occurred on the ground that Defendant 2 had a duty of care to manage and supervise the execution of the construction, such as supervision of the adequate number of iron bars according to the progress ratio in advance, as the field director of the Nonindicted Co., Ltd. belonging to the consortium and the person in general charge of safety and health who is the supervisor of the consortium that is stationed at the site, and in order to prevent the collapse of the steel bars, he did not fully perform his duty of care due to the error in construction method, etc.

In light of the records, although the reasons of the judgment of the court below are somewhat inappropriate, the above judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as alleged in the grounds of appeal

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)