201Guhap43218 Revocation of business suspension

A An incorporated association

The head of the Seoul Regional Employment and Labor Office Seoul East Site

September 21, 2012

November 9, 2012

1. The disposition taken by the Defendant against the Plaintiff on December 19, 201 to suspend the business of an asbestos inspection institution for 3.5 months (from December 21, 201 to April 4, 2012) shall be revoked.

2. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The same shall apply to the order.

1. Details of the disposition;

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

B. From September 25, 201, the Plaintiff received a request from B for asbestos inspection on the 6th floor remodeling construction of the Kimhae-si Building (including a licking construction on the ceiling, floor, and wall; hereinafter “the instant construction”). On September 26, 201, the Plaintiff visited the instant construction site and conducted asbestos inspection on September 27, 201. D set the upper part of the building to be removed from the instant construction site as an “sixth tent.” On September 27, 2011, the Plaintiff prepared an asbestos inspection report (hereinafter “the instant report”) stating the material name as an “specific, other than asbestos suspected material” in the floor, and submitted it to the Defendant.

D. The Defendant: (a) deemed that the instant report on asbestos inspection to be limited to ① the Plaintiff’s 6th floor space in the building subject to removal constituted “a case where the Plaintiff falsely prepares documents pertaining to asbestos inspection” under Article 38-2(5) and Article 15-2(1)4 of the Act; (b) Article 30-6 subparag. 2 of the Enforcement Decree of the Act (amended by Presidential Decree No. 23545, Jan. 26, 2012; hereinafter the same shall apply); (c) the Plaintiff failed to conduct a preliminary investigation as to whether the asbestos was contained in the building drawing, facility installation drawing, or user structure; (d) the Plaintiff violated the duty of business suspension under Article 38-2(2) and (5) and Article 15-2(1)4 of the Enforcement Decree of the Act; and (e) Article 30-6 subparag. 3 of the Act (amended by Presidential Decree No. 23545, Jan. 26, 2012; hereinafter the same shall apply).).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 4, the purport of the whole pleadings

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 the "tent material", and even if there were some errors or omissions in the part of the "floor material" which is not the object of the investigation, it cannot be deemed that the false report was prepared. Therefore, it cannot be deemed that there was a false reason for preparing a false report. 2) As long as the object of the investigation by the plaintiff is limited to the "tent material" which is limited to a single material, the necessity of a preliminary investigation for a building drawing is not recognized, there is no reason for violating the duty of preliminary investigation.

3) Even if each of the causes of this case is 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

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Furian Youth and Medical Center located in Kimhae-si, Kimhae-si (the representative: G; hereinafter referred to as the “instant hospital”) planned to remodel the health room, etc. on the sixth floor above the above ground (hereinafter referred to as the “instant building”) into the hospital. The chief of the hospital decided to remove the ceiling, floor, and wall of the instant building from September 14, 201 to September 24, 201, part of the removal construction for the floor and wall was carried out by the daily workers.

2) Recognizing that asbestos may be in conflict with the Act in the course of removing asbestos without asbestos inspection, H delegated B with asbestos inspection, removal, and waste disposal of the instant building (see, e.g., evidence 2-2, 2-2, and evidence 6). Accordingly, B entrusted D’s asbestos inspection on September 25, 201, and requested D’s asbestos inspection to be the object of asbestos inspection (see, e.g., evidence 3-2).

3) On September 26, 2011, D removed not only the ceiling of the instant building, but also the floor and the walls, and in particular, the floor part was concrete with about 80% of the already removed, but also 20% of the number of asbestos suspected materials not yet removed (see evidence 7 and the 4 pages of the examination record of witness to D), and the sample inspection was conducted only on the TT, which is a ceiling material, and submitted the instant report to the Defendant (Evidence 2), and the Plaintiff paid 350,000 won as the price for the preparation of the said report.

Asbestos surveys on the building of this case and the scope of the investigation were conducted on the basis of the verification of meat and the extraction of samples on suspected asbestos-containing substances, which were conducted on the upper part of the building (excluding the sixth tent / stairs , toilets, toilets and EV rooms) intended to dismantle or remove the building of this case. Asbestos content materials and the results of analysis

- Asbestos-containing 4% (in excess of 1% of asbestos) containing 738.78mm2, 738m2, - Asbestos-related photographs, photographs, floor materials and concrete

4) Meanwhile, on September 26, 201, B contracted asbestos dismantling works on the ceiling portion of the instant building from the representative G of the instant hospital on September 26, 201 under the name of “I” corporation (IT), which is an asbestos dismantler, to KRW 15.4 million (see evidence 11 of A), and the remainder of general wastes were disposed of through daily workers.

5) As a result of an on-site investigation on the instant building on October 4, 201, the Labor InspectorJ of the Busan Regional Employment and Labor Office demanded D to re-examine the entire part of the instant construction project by examining the field photographs attached to the instant report, and verifying that the floor size 510.3 square meters of the instant building was already dismantled, and that the remaining 228.48 square meters of the total area is asbestos as an asbestos-containing material.

6) On October 6, 2011, D 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. (Evidence A 3).

○ Investigation and Scope- Asbestos Inspection on the instant building is conducted as discussed with respect to suspected asbestos-containing substances, only on the parts (except for 6th floor tent materials, wall materials and floor / stairs rooms, toilets and E/V rooms) of the relevant building intended to be dismantled or removed. In the case of the instant construction, asbestos content materials and analysis results of ○○ asbestos-containing materials to be remodeled after the removal of the 6th floor, wall materials and floor materials - As a result, asbestos content materials and analysis results of - 4% of the ceiling 738.78m2 - 4% of the 0th 4% of the upper asbestos (in excess of 1% of the asbestos) - On the top of the floor and the 000 asbestos-free asbestos inspection room floor - tymats of the asbestos non-exponed asbestos - tymating materials - typ and

7) On October 10, 201, I performed asbestos removal and removal works only for the ceiling portion identified as asbestos-containing material in accordance with the instant secondary report, and received a certificate of report on asbestos dismantling and removal from the head of the Busan Regional Labor and Labor Office on October 10, 201.

[Reasons for Recognition] Uncontentious Facts, Gap's evidence 2, 3, 10, 11, Eul's evidence 1, 2 (including additional numbers) through 4, 6 through 9, witness J's testimony, witness D, B, and H's testimony, and the purport of the whole pleadings

D. Determination

1) Whether the grounds for preparing a false report are recognized

A) Asbestos fibers is an asbestos substance that is highly likely to cause cancer by infiltrating the organ into the body of the body and the body of the body, and it can be the cause of the outbreak of malicious species that may cause breaking asbestos around the waste cancer and its surrounding area. For the purpose of preventing damage caused by scattering asbestos in the process of removing and dismantling asbestos according to such risk, Article 38-2(1) of the Act provides that a person who dismantles a building or its equipment above a certain size shall, before work, have an asbestos inspection institution examine whether asbestos is contained in the building or its equipment ( Subparagraph 1); the location and size of asbestos contained in the building or its equipment ( Subparagraph 2); and Article 38-4(1) of the Act provides that, if asbestos contains asbestos above a certain standard as a result of inspection, the Minister of Employment and Labor shall remove asbestos from the building after dismantling and dismantling it.

B) In this case, it is problematic whether the subject who determines the scope of asbestos inspection commissions for asbestos inspection, but Article 38-2(1) of the Act imposes an obligation to examine whether asbestos is contained in a building subject to removal on the owner who is the removal and dismantlement of the building, etc. Therefore, it is reasonable to deem that the subject who determines the scope of asbestos inspection is the owner of the building in principle. Therefore, it is difficult to recognize that the asbestos inspection institution is actively responsible for detecting and investigating the existence of asbestos content up to the portion exceeding the scope designated by the

However, in full view of the fact that it is difficult for a project owner without expertise in asbestos content to properly determine the scope of asbestos inspection; it is practically difficult for a supervisory agency to conduct on-site inspection for all removal works to supervise whether the scope of asbestos inspection is appropriate; and an asbestos inspection institution is an entrusted official with expertise and objectivity in asbestos scattering possibility and where the scope of asbestos inspection requested to be removed differs from the scope of asbestos inspection requested to be removed, an asbestos inspection institution, in principle, shall be deemed to have an obligation to correct it within the scope of inspection requested by it; however, if an asbestos inspection institution recognizes that the scope of asbestos inspection requested compared to the actual status of a building to be removed is inappropriate, it shall be deemed that the project owner is obligated to demand the expansion of the object of asbestos inspection; or if it is recognized that the scope of asbestos inspection is not appropriate, it shall be corrected by demanding the expansion of the object of asbestos inspection; and it shall be clearly stated that the asbestos inspection report on asbestos inspection is part of another material not subject to asbestos inspection.

C) Examining the instant case’s return, in light of the following: (a) H, the original owner of the instant building, comprehensively entrusted the investigation and removal of asbestos and waste disposal to B; (b) it appears that the scope of asbestos inspection was limited to the ceiling materials of the instant building; and (c) D had been consulted with the Plaintiff affiliated with D in the process; and (b) it was recognized that the floor of the instant construction site had already been removed at the time of conducting asbestos inspection and the remaining floor materials were suspected of asbestos being suspected of being an asbestos-containing material; (c) D was requested to conduct an asbestos inspection only for the ceiling, wall, and floor materials of the instant building, even though they were actually subject to removal; (d) it did not raise any objection against the request; and (e) in addition, the report of this case, the scope of removal of the instant construction is limited to the ceiling materials; and (e) the act of stating that materials were not suspected asbestos materials constitutes an act of using concrete materials, which is not an asbestos inspection stipulated in Article 20-13(2) of the Enforcement Decree of the Act.

2) Whether the preliminary investigation constitutes a breach of duty

A) 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 “A preliminary investigation as to whether asbestos is contained in the building drawing, facility production drawing, or user’s history.” Article 80-4(1)1 of the Enforcement Rule of the Act requires “A preliminary investigation as to whether asbestos is contained in the building drawing, facility production drawing, or user’s history.” Article 3 subparag. 2 of the Act provides that asbestos inspection by delegation under Article 3(3) of the Act and the accuracy management regulations must be classified into two parts: (a) the function of land inspection and space, design drawings, external appearance and use location of materials, etc. before collecting height samples; and (b) the aforementioned provision of a preliminary investigation by building drawings, facility installation drawings, user’s history, etc. prior

If necessary, it appears to the effect that the whole structure of the relevant building is identified and the materials used for each structure are demanded to be confirmed through the above documents, and it is difficult to view that a provision compelling all buildings to perform a preliminary investigation duty through a building drawing, etc. is necessarily difficult regardless of the characteristics of the relevant building.

B) Examining the instant case’s return, in light of the following: (a) the part requested by the Plaintiff to conduct asbestos surveys is the ceiling of the instant building consisting of single material (Tex); and (b) the experts in the relevant field also expressed that a preliminary investigation is sufficient for confirmation by land and collection of solid samples in the case of asbestos surveys on small-scale simple construction works (Evidence 5), a preliminary investigation by the Plaintiff’s affiliated D to conduct asbestos surveys on the ceiling portion of the instant building; and (c) it cannot be deemed a violation of the method of investigation as prescribed by Ordinance of the Ministry of Employment and Labor under Article 30-6 subparag. 3 of the Enforcement Decree of the Act on the sole basis of not referring to the architectural drawing, etc. while conducting

3) Whether the discretion is deviates or abused or not

A) As seen earlier, the Defendant decided on the grounds for preparing a false report by applying the individual criteria of Article 143-2 of the Enforcement Rule of the Act [Attachment 20] [Attachment 20] [Attachment 20] [Attachment 20] [Attachment 20] [Attachment 20] [Attachment 20]] [Attachment 2]] [Attachment 2]] [Attachment 2]] [Attachment 2]]]] [Attachment 205Du11982]]] [Attachment 206]] [Attachment 205]]] [Attachment 206]]] [Attachment]]]] [Attachment]]] [Attachment]]] [Attachment]]]] [Attachment]]]]]] is subject to the court’s judgment.

B) The report of this case is a passive nature that is not to indicate the difference between the building and the scope of the investigation subject to the asbestos inspection as requested. Thus, the general behavior (e.g.,, in the case of entry as if the investigation was conducted without the investigation, the sample analysis was conducted without the investigation, and the time of investigation was conducted after the removal and the case of false preparation as if the investigation was conducted before the removal) of the general behavior (e.g., in the case of entry as if the investigation was conducted without the investigation, the inspection was conducted after the removal and the investigation was conducted after the removal, and the result shows a qualitative difference; ② asbestos is not detected as a result; ③ it is difficult for the plaintiff to perform the contract in progress due to the disposition of this case; ③ it is difficult to determine that there is a balance between the public interest to achieve the disposition of this case and the disadvantage suffered by the plaintiff. Accordingly, the plaintiff's allegation that this part of the disposition of this case constitutes abuse of discretionary power.

4) Sub-committee

Therefore, the reason for violation of duty of preliminary investigation among the reason for the disposition of this case is not recognized, and the reason for the preparation of a false report also seems to be excessive, so the whole of the disposition of this case, which is a single disposition, cannot be exempted from being illegal, and its revocation is inevitable.

3. Conclusion

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

Number of judges of the presiding judge;

Judges

Judges Yang Jae-chul

1) A written statement (No. 9-2 of the A) and testimony in this Court to request asbestos inspection and removal only for the parts on the ceiling of the instant building through the testimony in this Court.

He stated that he had been aware that he had no expertise in asbestos or removal, but he himself judged the possibility of exposure to asbestos hazardous materials.

In light of the fact that it is difficult to view that the scope of asbestos inspection and asbestos dismantling has been limited to the ceiling, the first statement is more reliable than the evidence 2-2.

It seems that there seems to be some.

2) According to the statements in Eul evidence No. 6 and Eul, and Eul's testimony, Eul requested asbestos inspection only for the tent portion at the beginning without consultation with D.

In the construction of this case, the scope of asbestos inspection in which B, who is a waste disposal business entity, is to remove a ceiling, floor, or wall;

Therefore, it is consistent with the common sense that it was discussed with D which is entrusted with asbestos inspection due to the infinite relationship. Therefore, the evidence No. 3 is more reliable.

section 1.

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A person shall be appointed.

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A person shall be appointed.