(영문) 서울고등법원 2013.6.28. 선고 2012누38109 판결

The disposition taken by the Defendant against the Plaintiff on December 19, 2011 to suspend asbestos inspection institutions for 3.5 months shall be revoked.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the whole purport of the pleadings in the testimony of Gap evidence 1, Gap evidence 2, Eul evidence 3, Eul evidence 4, Gap evidence 10, Gap evidence 11, Eul evidence 11, Eul evidence 2-1, Eul evidence 2-2, Eul evidence 2, Eul evidence 1, Eul witness B, witness C, D, and E.

A. Status of the parties

① The Plaintiff is a non-profit incorporated association designated as an asbestos inspection institute pursuant to Article 38-2(1) and (2) of the Occupational Safety and Health Act (amended by Act No. 10968, Jul. 25, 201; hereinafter “Act”).

(2) Pursuant to Article 46 (1) 15 of the Enforcement Decree of the Act, the defendant was delegated by the Minister of Employment and Labor with the authority to revoke the designation of an asbestos inspection institution and order the suspension of business.

(b) Process of removal works in an asbestos inspection unclaimed state;

① G Council members (representative: H; hereinafter referred to as the “instant hospital”) located in the F of Kimhae-si, planned the construction work (including the removal work for ceiling materials, wall materials and floor materials; hereinafter referred to as the “instant construction work”) to remodel health rooms, etc. on the sixth floor of the above ground building (hereinafter referred to as “the instant building section”) into the hospital.

② The office head E of the instant hospital decided to remove the ceiling materials, walls, and flooring materials of the instant building. From September 14, 201 to September 24, 2011, the office head of the instant hospital had daily workers perform part of the removal of ceiling materials, walls, and flooring materials.1)

① E became aware that asbestos would be in conflict with the Act in the course of removing asbestos without asbestos inspection, and as a price for approximately KRW 29 million, D delegated asbestos inspection and removal and disposal of the instant building parts to D, and D entrusted the Plaintiff with asbestos inspection on September 25, 201 on behalf of H, etc., the owner of the instant building.

(d) Asbestos inspection, etc. in C;

① On September 26, 2011, 201, 201, 26, the Plaintiff’s air environment industrial engineer C visited the instant construction site to conduct an asbestos inspection in relation to the removal of ceiling materials, walls, and flooring materials. While confirming that considerable parts of the floor materials were removed without undergoing asbestos inspection, it was found that some of them were removed without undergoing asbestos inspection. However, a sample inspection was conducted only in tex, which is a ceiling material.

② On September 27, 2011, C prepared an asbestos inspection report (hereinafter “the instant report”) with the following contents and submitted it to the Defendant, and D) paid KRW 350,000 to the Plaintiff KRW 350,000 as the price for the preparation of the instant report.

Asbestos surveys on the building of this case are conducted on the basis of the verification of land and the extraction of samples on suspected asbestos in the upper part of the building (except for 6th floor tents/ stairs rooms, toilets, and E/V rooms) intended to dismantle or remove the building of this case. Asbestos content materials and the result of analysis, 78mtex 78m2 and 4% of asbestos in 738m2(asbestos 1% of asbestos) and 4% of asbestos in front of the asbestos inspection report - concrete - concrete.

(e) Contract for asbestos dismantling works;

On the other hand, D received a contract from H on September 26, 201 for asbestos dismantling works for the parts of the instant building from the representative H of the instant hospital on September 26, 201 under the name of “I” (hereinafter “I”), which is an asbestos dismantler, for the 15.4 million won (the net value of 14 million won) and the remaining general wastes were disposed of through worker.

F. Re-audit, etc. on the entire part of the instant construction project

① A labor inspector (special judicial police officer) affiliated with the Busan Regional Employment and Labor Office (Seoul Regional Employment and Labor Office) demanded C to re-examine the entire construction work of this case by examining the field photographs attached to the instant report, and verifying that the floor size of the instant building was 510.3 square meters already removed, and that the remaining 228.48 square meters remaining after the removal is an asbestos as an asbestos material, as a result of conducting a field survey on the instant building portion on October 4, 201.

② On October 6, 2011, C conducted an asbestos inspection again on the floor materials of the instant building, and prepared and submitted an asbestos inspection report (hereinafter “the second report”) with the following contents as follows.

Asbestos surveys on the building of this case are conducted as to suspected asbestos-containing materials and samples on the surface of the building in question (excluding 6th floor - tent materials, walls and stairs rooms, toilets and E/V rooms) intended to be dismantled or removed. In the case of the construction of this case, asbestos-containing materials and results of analysis to be remodeled after the removal of the 6th floor ceiling materials, walls and floor materials - In the case of the construction of this case, asbestos-containing materials and results of analysis - In the case of the construction of this case - In the case of the construction of this case, asbestos-containing XTT - in the 78th square meters of 738.7m of ceiling materials (in excess of 1%) - In the case of the floor of 4% of white asbestos (in excess of 1%) - In the case of the floor of the 6th floor, the floor of the O

G. On October 10, 201, I received a certificate of report on asbestos dismantling or removal from the head of the Busan Regional Employment and Labor Agency on the date of performing asbestos removal or removal works only for the tent portion identified as asbestos-containing substance in accordance with the instant second report.

(h) Details of the disposition;

On December 19, 2011, the defendant ordered the plaintiff to suspend the operation of the asbestos inspection institution (hereinafter referred to as the "disposition of this case") as follows.

(1) Details of violation

A person shall be appointed.

(2) Details of disposition: Business suspension for the preparation of a false report, three months for the grounds for violation of duties in a preliminary investigation, and one month for the suspension of duties for the grounds for violation of duties in a preliminary investigation, applying the individual criteria of Article 143-2 related [Attachment Table 20] paragraph (2) of the Enforcement Rule of the Act, and the suspension of duties for the plaintiff for 3.5 months after adding the remainder of 0.5 months for the heavy disposition standards under paragraph (1) Item (a) of the attached Table 20

(3) Scope of business suspension: All of the asbestos inspection institutions.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) The object of the asbestos inspection requested by the owner was limited to â€˜astronomical materials', and even if there were some errors or omissions in the part of â€˜floor materials' which are not subject to the investigation, it cannot be deemed that the investigation report was prepared falsely, so the reason for preparing the false report is not recognized.

2) As long as the Plaintiff’s investigation is limited to a tent, which is a limited single material, there is no need to conduct a preliminary investigation subject to architectural drawings, and therefore, it is not recognized that “reasons for breach of duty of preliminary investigation” is not recognized.

3) Even if the grounds for each of the instant dispositions are recognized, in light of the fact that the Plaintiff’s violation behavior is insignificant, the instant disposition was deviates from and abused discretion in violation of the principle of proportionality.

(b) Relevant statutes;

1) Relevant statutes

It is as shown in the attached Form.

2) The purport of the Act, which provides for asbestos inspection, causes diseases such as asbestosis or chromosomes, by being inhaled through the respiratory body called the body body so as to cause asbestosis or chromosomes. Asbestos remains in the body of a lifelong body without leaving or greens, and is damaged in its structure and chromosomes. When asbestos dust enters the body, most of the asbestos remains in the body through a locker of 10 to 30 years. Since asbestos is dangerous, in order to prevent damage that can be caused to workers by scattering asbestos in the process of removing or dismantling the building, Article 38-2(1) of the Act provides that an asbestos inspection institution shall inspect whether asbestos is contained in the building or facility (Article 1); the type and size of asbestos contained in the building or facility (Article 2); the location and size of asbestos contained in the building or facility (Article 38-4); and the standards prescribed by the Minister of Employment and Labor to remove asbestos from the building or facility; and Article 38-2(1) of the Act provides that asbestos shall be removed.

C. Based on the above purport of the Act, in full view of the following circumstances revealed by the above facts of recognition and the evidence revealed by the above evidence, the part of the floor part of the building of this case was included in the object of asbestos inspection requested by the owner of the building of this case (H, etc.). Contrary to this, Gap evidence 6-1, 2, Gap evidence 7, Eul evidence 9-1, 9-2, witness of the first instance court, witness C, D, and E are likely to believe, and there is no counter-proof otherwise.

① Article 38-2 of the Act imposes an obligation on a person who intends to remove or dismantle a structure or facility in excess of a certain size prescribed by Presidential Decree to conduct an asbestos inspection. In addition, in light of these circumstances, E, as an industrial engineer of the Plaintiff with expertise in asbestos inspection and related statutes, was later aware of it and entrusted D with overall duties related to asbestos, such as asbestos inspection on the instant part of the building in question. 8), the project owner intended to avoid sanctions, such as fines for negligence, as asbestos inspection was conducted on the parts of the instant building through asbestos inspection. Thus, the project owner did not seem to have intended to exclude the parts of the floor suspected of whether it contains asbestos from the object of asbestos inspection, and theD entrusted with such duties seems to have also been the same position as the project owner. In addition, it is hard to find that the Plaintiff’s industrial engineer of the Plaintiff with expertise in asbestos inspection and related statutes, who is also requested by the project owner through C&D, is exempt from asbestos inspection on the upper part of the instant building through asbestos inspection.

② On October 4, 201, the labor inspector B of the Busan Regional Employment and Labor Agency conducted an irregular inspection of the instant construction site on October 4, 201, and discovered the fact that the owner performed partial removal works without asbestos inspection to promptly remodel the hospital and that the instant report was prepared differently from the fact. B conducted a telephone survey on October 6, 201, and D requested C to conduct asbestos inspection at the time of the investigation, and only requested C to conduct an overall investigation on the instant building (six floors) and stated that D did not contain any specific scope of the investigation. (9) After the reversal of the subsequent statement, the said telephone statement in the initial investigation process was conducted without considering the disadvantage of the Plaintiff, and its probative value cannot be viewed as unhulled. 10).

③ On September 26, 2011, C visited the site of the instant construction, and taken photographs by investigating walls and flooring materials as well as tenting materials of the instant building. In other words, the 8-9th report of this case is accompanied by six photographs of wall materials and flooring parts, as well as six photographs of wall materials and flooring parts, respectively. Each photograph includes each material of the said materials.

(2) The Plaintiff asserted that the report of this case serves as a document proving the result of the investigation into the removal of the instant building parts, namely, as a single removal work, that is, as a document proving the result of the investigation into the demolition of the instant building parts, the instant report serves as a single removal work, namely, as a whole, as a document verifying the result of the inspection into the demolition of the instant building parts, and thus, it is difficult to distinguish the material from the material facts in itself.

⑤ around September 25, 201, D notified E of the fact that, at the time of request for asbestos inspection, etc. on the instant building, E was conducted without asbestos inspection, the owner of the building was subject to a fine for negligence. As such, D and E appears to have discussed measures to avoid the disposition of a fine for negligence.

(6) Ultimately, it appears that C, in the relationship with D, prepared the instant report and stated as if the subject matter of investigation is limited to the ceiling materials on the ceiling materials of the instant building, is likely to prevent the project owner from being subject to an administrative fine under Article 72(1)1 of the Act by concealing the fact of violating Article 38-2(1) of the Act by removing other days on the floor before the project owner had already undergone asbestos inspection.

D. Determination on the grounds for preparing a false report

In light of the following circumstances revealed by the above facts and the above evidence, the plaintiff's employee C entered the report in this case as if the subject of investigation is limited to the ceiling materials of the building of this case, and investigated as to the removal of part of the floor, but it entered this part of the material into concrete with a false statement as to "Asbestos inspection and degree management regulations" under Article 7 (1) 1 of the Enforcement Decree of the Act (Notice of Ministry of Labor No. 2009-32 of August 7, 2009; hereinafter the same shall apply). Thus, this part of the plaintiff's assertion that it did not prepare a false report is not acceptable.

(1) As seen earlier, C prepared the instant report and entered as if the subject matter was limited to the ceiling materials of the instant building, i.e., the removed parts, namely, the ceiling materials, walls, and flooring materials.

② As a result of the survey on the floor materials of the instant building, C expressed the material of the said part as a mere concrete, even though it had been known that a considerable part of the floor was already demolished. In other words, in preparing the “asbestos map and quantity calculation report” in the instant report, most of the floor parts were prepared differently from the fact that they were concrete, and even though it is obvious that there was a trace of removing the date from the floor, it was simply indicated as a “ concrete”. 13)

③ As seen earlier, the instant report serves as a document evidencing the result of asbestos inspection on one of the demolitions of the ceiling materials, walls, and floor materials in the instant building part, so it cannot be said that it was not merely for reference, but for a mere purpose, rather than for the subject matter of investigation.

④ In light of the fact that C had a friendly relationship with D, and that asbestos inspection, etc. on the instant building was conducted at the direct request of D, C appears to have had a motive to make false entries in the instant report in order to prevent an administrative fine from being imposed upon D’s request.

E. Determination on the violation of duty of preliminary investigation

1) Article 38-2(2) of the Act delegates asbestos inspection methods to the Minister of Employment and Labor. Article 80-4(1)1 of the Enforcement Rule of the Act requires that “A preliminary investigation shall be conducted on whether asbestos is contained in the building drawing, facility production drawing, or material used.” Article 3(3) of the Act provides that “Asbestos inspection and accuracy management regulations shall be conducted on the basis of the delegation from Article 3(3) of the same Act.” Article 3(2) of the same Act provides that “A preliminary investigation shall be conducted on the basis of construction drawings, facility installation drawings, user’s appearance and use location before collecting solid samples, and shall be classified into equal parts.” As can be seen, prior to conducting asbestos inspection, the Act stipulates a preliminary investigation on the basis of building drawings, facility installation drawings, user’s history, etc., if necessary depending on specific circumstances, such as characteristics and spatial structure of the building subject to investigation, it appears to the purport that the overall structure of the building is identified and the materials used for each structure

2) As to the instant case, in light of the following circumstances revealed by the aforementioned facts and the evidence revealed, C did not conduct a preliminary investigation as to whether asbestos is contained in the instant building site, wall materials, and floor materials, the Plaintiff’s assertion on this part cannot be accepted, as it is in violation of the method of investigation as prescribed by Ordinance of the Ministry of Employment and Labor pursuant to Article 30-6 subparag. 3 of the Enforcement Decree of the Act.

① As seen earlier, C is requested to conduct asbestos surveys on the removed parts, i.e., ceiling materials, walls, and flooring materials of the instant building. As such, since the total surface area reaches a considerable scale, it is difficult to deem that the preliminary investigation is sufficient to confirm the removed parts of the instant building and to collect the solid sample.

② Furthermore, the owner of the instant construction project had already been performing the removal work without asbestos inspection. As such, when C went to the construction site on September 26, 201, it was impossible to confirm the structure before the removal and specific materials.

③ In such cases, C with expertise in asbestos inspection and related Acts and subordinate statutes is deemed necessary to conduct a preliminary investigation through design drawings, etc. in order to grasp the overall structure of a building and to verify the original material, size, etc. of the removed part.

(f) Determination of deviation from discretion - abuse of discretion

1) The Defendant applied the individual criteria of Article 143-2 of the Enforcement Rule of the Act [Attachment Table 20] [Attachment Table 20](2) to the Plaintiff, and applied the individual criteria of Article 143-2(2) of the Enforcement Rule of the Act to suspend business operations for three months and one month for the reason for violating the obligation to make a preliminary investigation. However, the Defendant rendered a disposition of business suspension for three and a half months including the remainder of 1/2 and 0.5 months of the disposition standards in March of the heavy disposition standards pursuant to paragraph (1) of the above [Attachment Table 20]. The criteria for the disposition of business suspension under the above attached Table are the legal order, but the above period is not the fixed period but the upper limit (see, e.g., Supreme Court Decision 2005Du11982, Feb. 9, 206). In addition, Article 143(2) of the Enforcement Rule of the Act provides that when an administrative disposition is taken pursuant to the above attached Table, the administrative disposition may be mitigated or aggravated in consideration of intention and other circumstances.

2) Examining the instant case in light of the following circumstances acknowledged by the above facts and the evidence as seen earlier, considering the fact that asbestos was not found in the floor materials omitted in the instant report and the circumstances, it is difficult to deem the instant disposition to constitute a deviation or abuse of discretionary power, and therefore, the Plaintiff’s allegation in this part is without merit.

(1) The provisions concerning asbestos inspections under the Act, the Enforcement Decree thereof, and the Enforcement Rule thereof are intended to enforce the obligation of asbestos surveys for the health safety of the people who are very important public interest, and to ensure objectivity and reliability of the results of asbestos surveys.

② In light of the risk of asbestos as seen earlier, asbestos inspection work conducted by the Plaintiff is an asbestos inspection institution’s business with a significant impact on the health of the general public as well as on the site workers at construction sites. It is true that all administrative agencies are unable to manage and supervise removal works, and therefore, administrative agencies’ supervisory measures are bound to depend mainly on the inspection report of asbestos inspection institutions. Therefore, it is very important to properly prepare the inspection report.

The plaintiff's employee, C investigated the ceiling materials, walls, and floor materials of the building of this case and confirmed that part of them had been removed without asbestos inspection. Despite the existence of suspected asbestos contained yet on the floor, the preparation of the report of this case in a false manner without properly conducting a preliminary investigation would seriously undermine the public confidence of asbestos inspection institutions and undermine the objectivity and reliability of the investigation results. Nevertheless, the plaintiff did not show the attitude that it was urgent to avoid liability, and even if part of the error was found, it did not recognize and prevent recurrence.

④ Even if asbestos was not found in the floor materials omitted in the instant report, considering the fatal risk of asbestos and the responsibilities of an asbestos inspection institution that must ensure the health safety of the people, liability corresponding to an unlawful act cannot be imposed against the Plaintiff. Moreover, since it is not clearly revealed that C is the only difference between the collection and analysis of samples after the date of the ex post facto collection and analysis, and the removal before the date of the ex post facto collection and analysis, it is also difficult to accurately identify whether the asbestos is contained in other days already removed and the content thereof.

Considering the important public interest of the 6th citizens’ health safety, even if there are economic damages, such as the difficulty in performing the contract that the Plaintiff is proceeding due to the instant disposition and the difficulty in paying wages to the employees, the instant disposition cannot be deemed as a ground to revoke the instant disposition.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair, and it is so revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges

The presiding judge, judge and assistant administrator;

Judges Nown Korea

Judge Lee Ro-man

Note tin

1) Eul evidence 2-2

2) Each entry of Eul evidence 2-2 and Eul evidence 6. E refers to a written statement (Evidence A-2) and testimony in this court to request the inspection and removal of asbestos only for the parts on the ceiling of the instant building through the testimony in this court. However, in light of the fact that it is difficult to view that Eul, without expertise in asbestos and removal, has limited the scope of asbestos inspection and asbestos dismantling to the ceiling on its own by judging the possibility of exposure to asbestos dangerous substances, it appears that the first statement is more reliable.

3) The statements in Eul evidence 7 and the witness C in part of the first instance trial.

4) The descriptions and images of Gap evidence 2

5) A’s evidence No. 11.

6) The descriptions and images of Gap evidence 3.

7) Fluorial fluoring around chests or clothes attached to the chest exterior wall, and fluoring the heart surface covered by the heart, and most of the fluoral fluoring is a fluoral fluoring fluoring form, which is caused by asbestos dust fluoring up to 30 years, and dies within 1-2 years after the outbreak.

8) Eul evidence 6 must be written.

9) Note B 2-1 of the evidence.

10) Meanwhile, C and D did not go through D and intended to go as if they directly requested for asbestos inspection to C (each of the evidence Nos. 1, 2, and 3).

11) Partial testimony of the witness D in the first instance trial.

12) If Gap evidence 2, 6 pages (the instant report) and Eul evidence 3-7 pages (the instant second report) are compared, the difference is revealed as soon as possible.

13) The descriptions and images of the evidence B 9.

14) Evidence B 2-1, each entry of Evidence B-6, and witness D of the first instance trial.