(영문) 수원지방법원 2017.12.12.선고 2017구합65532 판결

1. The Defendant’s disposition of business suspension against the Plaintiff on May 18, 2017 is revoked. 2. The litigation cost is assessed against the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff is a company established for the purpose of performing interior construction business on October 18, 2013. On January 21, 2016, the Plaintiff filed an application for registration of asbestos dismantling or removal business entity with the Defendant. On February 17, 2016, the Defendant issued the registration certificate of asbestos dismantling or removal business entity to the Plaintiff pursuant to Article 38-3 of the Occupational Safety and Health Act and Article 80-6 of the Enforcement Rule of the Occupational Safety and Health Act.

B. On January 13, 2017, the Defendant: (a) visited the Plaintiff’s place of business to verify and check whether the Plaintiff satisfies the requirements for registration of asbestos dismantlers or removers; (b) determined that the Plaintiff did not meet the requirements for registration under Article 38-4(6) of the Occupational Safety and Health Act on the following grounds; (c) issued a business suspension disposition for three months (from May 19, 2017 to August 18, 2017 to the Plaintiff pursuant to Articles 38-4(6) and 15-2(1) of the Occupational Safety and Health Act (hereinafter “instant disposition”).

Where it fails to meet the requirements for registration under Article 38-4 (6) of the Occupational Safety and Health Act, the relevant business entity engaged in dismantling or removing asbestos shall have human resources prescribed in Article 38-4 of the Occupational Safety and Health Act, Article 30-8 of the Enforcement Decree of the same Act, Article 80-5 of the Enforcement Decree of the same Act, and subparagraph 1 of attached Table 10-4 of the same Act (hereinafter referred to as "relevant provisions"), and have them exclusively perform the relevant duties. However, the plaintiff shall register the representative as a person under item (a) and register the representative as technical human resources for indoor construction construction business under Article 9 of the Framework Act on the Construction Industry at the same time, and make it impossible for B to perform the relevant duties solely because B registered as a person who manages the site of dismantling or removing asbestos under the Occupational Safety and Health Act by overlapping it with technical personnel for indoor construction business under Article 9 of the Framework Act on the Construction Industry.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 and 2, and the purport of the whole pleadings

A. The plaintiff's assertion

The Industrial Safety and Health Act, etc. does not prohibit overlapping registration of technical human resources, and it is impossible to take exclusive charge of performing on-site management of asbestos dismantling or removal work under the Framework Act on Industrial Safety because it is registered as technical human resources of indoor construction business under Article 9 of the Framework Act on the Construction Industry. Since the competent authority manages and supervises the site of asbestos dismantling or removal work, and separately designates and supervises responsible supervision in the ordering authority, there is no risk of over-site management neglect, etc. due to overlapping registration of technical human resources as alleged by the Defendant. Therefore, the instant disposition is unlawful as the ground for disposition

B. Defendant’s assertion

According to the relevant provisions, such as the Occupational Safety and Health Act, it is reasonable to interpret that "a person who manages a site for dismantling or removing asbestos according to the standards for the registration of asbestos dismantlers or removers shall perform the duties of the site as a person in charge of the site." At the same time, B, the representative of the Plaintiff, is registered as a human resources of indoor construction business under subparagraph 1 of attached Table 10-4 of the Enforcement Rule of the Industrial Safety and Health Act, and simultaneously is registered as a human resources of indoor construction business under Article 9 of the Framework Act on the Construction Industry. Thus, the Plaintiff did not meet the requirements for registration of asbestos dismantlers or removal business under the relevant provisions, such as the Occupational Safety and Health Act. Therefore, the instant disposition based on the above premise is lawful.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Determination on the legitimacy of the instant disposition

A. Article 38-4(5) of the Occupational Safety and Health Act provides that the requirements and procedures for the registration of asbestos dismantlers or removers shall be prescribed by Presidential Decree, the procedures for reporting under paragraph (3), the standards, methods and methods of public announcement under paragraph (4), etc. shall be prescribed by Ordinance of the Ministry of Employment and Labor. Article 38-4(6) provides that "Article 15-2 shall apply mutatis mutandis to asbestos dismantlers or removers, and Article 15-2(1)3 of the Enforcement Decree of the Occupational Safety and Health Act provides that "if a person fails to meet the requirements for designation, the designation may be revoked or the suspension of business may be ordered by fixing a period not exceeding six months." Article 30-8(1) of the Enforcement Decree of the Occupational Safety and Health Act provides that

Article 80-5 of the former Enforcement Rule of the Industrial Safety and Health (amended by Ordinance of the Ministry of Employment and Labor No. 197, Oct. 17, 2017; hereinafter the same shall apply) provides that “Specialized human resources necessary for the removal and removal of asbestos, and facilities and equipment for safe asbestos dismantling and removal work, such as sound voltages and sanitary equipment, shall be equipped.” Article 80-4(2) provides that “The specific requirements for registration of asbestos-preventive bodies and removal business operators under paragraph (1) shall be prescribed by Ordinance of the Ministry of Employment and Labor.” Article 80-5 of the former Enforcement Rule of the Industrial Safety and Health (amended by Ordinance of the Ministry of Employment and Labor No. 197, Oct. 17, 2017; hereinafter the same shall apply) shall provide that “the standards for human resources of asbestos dismantlers and removal and removal business operators shall be as specified in attached Table 10-4; subparagraph 1 of attached Table 10-4, who have completed education or civil engineering (hereinafter referred to as at least one person who has completed the same level).

B. Administrative laws and regulations, which serve as the basis for an indive administrative disposition, shall be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to the administrative disposition. Even if the teleological interpretation that takes into account the legislative intent, purpose, etc. is not entirely excluded, such interpretation shall not go beyond the ordinary meaning of the language and text (see, e.g., Supreme Court Decision 2007Du13791, 13807, Feb. 28, 2008).

C. The above language and text of the provisions of the Occupational Safety and Health Act, including the Occupational Safety and Health Act, merely stipulate that “at least one person who has a specified technical qualification among the requirements for the registration of asbestos dismantlers or removers, who has completed the education course for asbestos dismantlers or removal managers, or at least one person who has completed the education course for asbestos dismantling or removal managers,” and does not stipulate that “at least one person who has completed the education course for asbestos dismantling or removal managers” cannot be registered as technical personnel of another type of business under other Acts and subordinate statutes cannot be registered as asbestos dismantlers or removal business. Meanwhile, according to the relevant provisions of the Occupational Safety and Health Act, a field manager of asbestos dismantling or removal work can perform his/her duties in exclusive charge, and thus, a person registered as technical personnel of another type of business cannot perform the above management work in full, and thus, relevant provisions such as the Occupational Safety and Health Act should be construed as prohibiting overlapping registration of technical personnel. However, considering the above evidence, the purpose of the above provision, including the description of evidence No. 16, No. 3 through No. 7, and the whole, the following, the purpose of management and removal work can be seen.

It is reasonable to interpret that the prohibition of double-registration goes beyond the ordinary meaning of the language and text.

D. Therefore, B is registered as human resources under subparagraph 1 (a) of attached Table 10-4 of the Enforcement Rule of the Industrial Safety and Health Act, and as human resources for interior construction business under Article 9 of the Framework Act on the Construction Industry.

Since the Plaintiff cannot be deemed to have failed to meet the requirements for registration of asbestos dismantling or removal business under the relevant provisions of the Industrial Safety and Health Act, etc., the instant disposition based on a different premise is unlawful, and the Plaintiff’s assertion is with merit.

5. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.