(영문) 수원지방법원 2011.2.17. 선고 2010구합17268 판결

A. While the Plaintiff was engaged in the business of dismantling or removing asbestos after being established on February 26, 2007, as a result of the amendment of the Occupational Safety and Health Act (hereinafter “the Act”) on August 7, 2009, the registration system for the business of dismantling or removing asbestos was implemented, the Plaintiff filed an application for registration of the business of dismantling or removing asbestos with the standards for human resources, facilities, and equipment under the Act on August 5, 2009, and received a registration certificate from the Defendant on August 7, 2009.

B. The Defendant conducted a general inspection on the relevant business entity from April 15, 2010 to May 31, 2010 in order to ensure the durability of the registration system for asbestos dismantlers and removal business entities. In the process, the Defendant investigated the Plaintiff’s registration requirements on May 31, 2010.

C. As a result, the Plaintiff’s determination that the requirements of human resources were not satisfied for a considerable period of time among the statutory registration requirements, and the Defendant notified the Plaintiff of the prior disposition on June 1, 2010, and on July 7, 2010, the Plaintiff violated Article 38-4(6) of the Act because the Plaintiff failed to meet the human resources requirements among the registration requirements as follows. From the date of July 7, 2010 to September 6, 2010, the instant disposition was rendered to suspend the work of dismantling or removing asbestos for a period of time from January 5, 2010.

A business entity dismantling or removing asbestos shall employ a person who has completed the course of education for dismantling or removing asbestos, who has completed education determined and publicly notified by the Minister of Labor concerning methods of dismantling or removing asbestos, methods of wearing protective outfits, etc. (hereinafter referred to as "education for the process of dismantling or removing asbestos") as prescribed by subparagraph 1 (b) of attached Table 10-4 of the Enforcement Rule of the Occupational Safety and Health Act, as a construction engineer in the civil engineering field prescribed in subparagraph 1 (a) of attached Table 10-4 or a person who has completed the course of education for the manager of dismantling or removing asbestos, as a person who has been engaged in the field of civil engineering or construction for at least two years, as a person who has completed the course of education for the manager of asbestos.

Nevertheless, the Plaintiff, a business entity engaged in dismantling or removing asbestos, was vacant from September 21, 2009 to May 26, 2010 by the registered human resources prescribed in subparagraph 1(a) of attached Table 10-4, and the registered human resources prescribed in subparagraph (b) of “B” were vacant from September 21, 2009 to May 26, 2010, and did not meet the registration requirements.

D. Accordingly, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission, but was dismissed on December 7, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, 9, 10, 11, Eul evidence Nos. 1, 3, 6, 7, 9, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Act provides a designation system for asbestos inspection institutions among safety management institutions. The human standards are very strict to the extent that it can not be compared with asbestos dismantling or removal business operators. It is not consistent with the principle of equity to order business suspension by applying Article 15-2 (1) 2 of the Act to asbestos dismantling or removal business operators, which applies to safety management institutions as they failed to satisfy the requirements for the registration of asbestos dismantling or removal business operators. The plaintiff was unable to properly understand the newly modified requirements for the registration of asbestos dismantling or removal business operators, and the competent authorities failed to properly publicize the contents. The plaintiff supplemented the defective registration requirements by having the plaintiff's employee B and C receive relevant education before being pointed out the requirements for registration by the defendant. As for minor first violation of the above, the order of business suspension can be ordered in lieu of the business suspension, but it goes against the principle of proportionality. In full view of the above, the disposition of this case is unlawful by abusing discretion.

B. Key statutes

It is as shown in the attached Form.

1) D, as an employee of the Plaintiff, who has the technical qualification under Item (a) of the Enforcement Rule of the Act, which has completed the course of education for asbestos dismantling or removal manager, died on September 20, 209, and E, who has the technical qualification under Item (b), retired on November 1, 2009.

2) After that, the Plaintiff did not have employees who completed the course of education for asbestos dismantling or removal manager, the Plaintiff had B and C complete the course of education for asbestos dismantling or removal manager from May 24, 2010 to May 26, 2010.

3) The Plaintiff performed 75 asbestos dismantling and removal work from September 18, 2009 to May 2010.

[Reasons for Recognition] Each of the evidence set forth above, Gap's evidence set forth in Gap's 6, 7, 8, 15, 16, 18, 19, 20, Eul's 2, 4, and 5 (including each number), and the purport of the whole pleadings

D. Determination

Article 15-2 (1) 2 of the Act which applies mutatis mutandis to asbestos dismantlers or removal business operators under Article 38-4 (6) of the Act provides that the Minister of Employment and Labor may cancel the designation or order the suspension of business for a fixed period not exceeding six months. Article 63-2 (2) of the Act provides that the standards for cancellation, suspension, prohibition of use, or order for improvement under Article 15-2 (1) of the Act (including cases applied mutatis mutandis under Article 38-4 (6)) shall be determined by Ordinance of the Ministry of Employment and Labor. Accordingly, Article 143-2 (1) of the Enforcement Rule of the Elementary and Secondary Education Act provides that a person who intends to be registered as asbestos dismantlers or removal business operator shall either be subject to suspension of business for three months or more if he/she fails to meet the requirements for the registration of asbestos dismantlers or removal business. Article 30-8 of the Enforcement Decree of the Act provides that a person who has completed education or removal work in the area of industrial technology, such as human resources necessary for asbestos dismantling or construction, and safe equipment, shall meet the standards for construction.

The purpose of the Act and subordinate statutes is to have two or more employees who have completed the instant education as the human resources standard for asbestos dismantlers and removal business operators. The work to dismantle or remove buildings containing not less than a certain content and area of asbestos is to prevent industrial accidents and to maintain and promote the safety and preservation of employees by creating a pleasant working environment. However, the Plaintiff’s act of ordering employees who have completed the instant education to take charge of dismantling or removal of 75 asbestos after September 2009 cannot be said to be insignificant in the degree of violation of the Act and subordinate statutes, even if the Plaintiff was aware of the fact that it was well aware of the standards for the registration of human resources or erroneous determination of the contents thereof, and the disposition of this case cannot justify violation of the duty to comply with the standards for the suspension of business of three months or more based on the Enforcement Rule of the Act and the Enforcement Rule of the Act and the disposition of this case cannot be deemed to have been excessively mitigated or reduced due to the fact that employees who have completed the instant education cannot be deemed to have been subject to excessive removal or removal of asbestos diseases.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.