Article 67 subparag. 1 of the Occupational Safety and Health Act and Article 23(1) of the same Act on the grounds of a business owner’s breach of duty to take safety measures; and even in cases where an employer orders an employee under his/her control to monitor and supervise the work conducted by a third party to whom the contract was made by the business owner, whether the same legal doctrine applies when there is a risk of safety in the surveillance and supervision work

Where a business owner orders employees to take safety measures in accordance with the rules on industrial safety and health, without taking safety measures pursuant to Article 67 subparag. 1 and Article 23(1) of the Occupational Safety and Health Act, as measures necessary to prevent risks by machinery, apparatus, or other equipment (Article 23(1)1 of the Occupational Safety and Health Act), explosive, inflammable, or inflammable substances (Article 23(1)2 of the same Act), and to prevent risks by electricity, heat, or other energy (Article 23(1)3 of the same Act), a crime of violation of Article 67 subparag. 1 and Article 23(1) of the Occupational Safety and Health Act is established when the business owner orders employees under his/her jurisdiction to monitor and supervise the work conducted by a third party contracted by the business owner at the site. Such legal principle likewise applies where the business owner orders employees under his/her jurisdiction

Article 23 (1) and (4), and Article 71 of the Occupational Safety and Health Act; Article 67 subparagraph 1 of the former Occupational Safety and Health Act (Amended by Act No. 11882, Jun. 12, 2013)

Supreme Court Decision 2005Do3700 Decided April 28, 2006, Supreme Court Decision 2006Do8874 Decided March 29, 2007 (Gong2007Sang, 638)

Defendant 1 and one other

Prosecutor

Attorney Kang Han-hee et al.

Gwangju District Court Decision 2013No2217 Decided February 19, 2014

Of the judgment below, the part against Defendant 1 and the part not guilty against Defendant 2 are reversed, and this part of the case is remanded to the Panel Division of the Gwangju District Court.

The grounds of appeal are examined.

1. In light of the purpose of the Occupational Safety and Health Act (Article 1 of the same Act) to maintain and promote the safety and health of workers by establishing standards for occupational safety and health and clarifying where the responsibility lies, and by creating a pleasant working environment, and the contents of Articles 67 subparag. 1 and 23(1) of the same Act, if a business owner fails to take necessary measures to prevent risks under the subparagraphs of Article 23(1) of the same Act, the crime of violating the Occupational Safety and Health Act under Article 67 subparag. 1 of the same Act is established regardless of whether a disaster actually occurred (see Supreme Court Decision 2005Do3700, Apr. 28, 2006).

In addition, Article 67 subparagraph 1 of the Occupational Safety and Health Act and Article 23 (1) of the Occupational Safety and Health Act are established where the business owner orders employees to take safety measures in accordance with the rules on occupational safety and health as measures necessary to prevent risks caused by machinery, apparatus, and other equipment (Article 1), explosive, inflammable, and inflammable substances (Article 2) at the place of business operated by the business owner, without taking safety measures pursuant to the rules on the standards of occupational safety and health, and where the business owner instructs employees to conduct safety-related work (Article 67 subparagraph 1 of the Occupational Safety and Health Act, and Article 23 (1) of the same Act is established (see, e.g., Supreme Court Decision 2006Do8874, Mar. 29, 2007). This legal doctrine equally applies to cases where the business owner instructs employees under his/her control to monitor and supervise work conducted by a third party contracted by the business owner

2. Of the facts charged in the instant case against the Defendants, the first instance court found the Defendants guilty of the Defendants on the ground that: (a) the Defendants did not directly instruct the employees of the lower court to engage in dangerous work; (b) rather than ordering the employees of the lower court to directly engage in dangerous work; (c) the business owner cannot be deemed to have the duty to take safety measures under Articles 67 subparag. 1 and 23(1) of the Industrial Safety and Health Act with respect to the employees of the lower court, on the date of the instant explosion accident occurred at the ○○○○○○ Factory of Defendant 2 Co., Ltd. (hereinafter “Defendant Co., Ltd”); (d) the employees of the Nonindicted Co., Ltd., including the Nonindicted Co., Ltd. did not directly instruct the employees of the lower court on the date of the instant explosion; and (e) the Defendants’ employees of the lower court, including the Defendant Co. 1, 200, on the ground that it was difficult to view the Defendants’ safety and health control manager’s duty to monitor or examine the internal gas gas gas on the date prior to the instant installation work.

3. A. However, in the judgment of the court of first instance and the reasoning of the judgment below, where the business owner ordered an employee under his/her control to direct and supervise the work performed by the subcontractor, the part which is based on the premise that the business owner did not have the duty to take safety measures under Article 23(1) of the Occupational Safety and Health Act regarding the employee under his/her control is inconsistent with the legal principles as

B. In addition, in light of the legal principles as seen earlier, Defendant 1, a person in charge of safety and health management of Defendant Company, is not directly ordered the employees of the Defendant Company, such as the Nonindicted Party, to install the last day of the instant shooting, even though Defendant 1 did not directly order the employees of the Defendant Company to install the last day of the instant shooting, insofar as he did not perform the prior work such as completely removing plugs inside the instant shooting day and did not assign the said employees at the above site of the installation of the last day where the risk of fire and explosion is likely to occur due to inflammable materials, such as melting work, and had them monitor and supervise the said work, the above employees are obliged to take safety measures necessary to prevent such danger that may be caused by the said employees in the course of supervision and supervision.

4. Therefore, the court below erred by misapprehending the legal principles on the duty to take safety measures as stipulated in the above Act for the employees of the defendant company in relation to the explosion accident, and found the defendants not guilty of this part of the charges without examining further the violation of the duty to take safety measures, and thereby adversely affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. For this reason, the part of the judgment below on the charge of violation of the Occupational Safety and Health Act concerning the above explosion accident against the Defendants should be reversed.

However, among the judgment of the court below, the guilty part against Defendant 1 and the reversed part are the concurrent crimes under the former part of Article 37 of the Criminal Act or the ordinary concurrent crimes under Article 40 of the Criminal Act, and thus, one sentence should be imposed on the whole. Thus, among the judgment below, the guilty part against Defendant 1 should be reversed together with the above reversed part, and the part against Defendant 1 among the judgment of the court below should be reversed in its entirety.

6. Therefore, the part of the judgment of the court below against Defendant 1 and the part of the acquittal against the Defendant company are reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)