Defendant 1 and one other

Written indictments, and astronomical Appellants (public trial)

Law Firm (LLC) LLC, Attorneys Park Jong-sik et al., Counsel for the defendant-appellant

Defendant 1 shall be punished by imprisonment for one year, by a fine of 5,00,000 won, respectively.

However, for two years from the date this judgment became final and conclusive, the execution of the above sentence against Defendant 1 shall be suspended.

Defendant 2 shall be ordered to pay an amount equivalent to the above fine to Defendant 2.

Defendant 1 is a person in charge of safety management of Defendant 2, who is in charge of the maintenance and repair of supply facilities of Nonindicted Co. 5 located in Yeongdeungpo-gu Seoul ( Address omitted), and Defendant 2 is a corporation established for the purpose of supplying urban gas and facilities for using facilities, etc., and is a business owner who contracts to Nonindicted Co. 1 by separating the work of “the necessity to replace an urban gas valve at Man”

The owner of a business, part of which is carried out at the same place and which shall be given a contract separately, shall take measures to prevent industrial accidents as prescribed by Ordinance of the Ministry of Employment and Labor when his/her workers employed by the contractor work at a place where there is a risk of industrial accidents prescribed by Ordinance

1. Defendant 1

The Defendant at the construction site above around 14:40 on January 31, 2013, when the victim Nonindicted 3 (year 53), the representative director of Nonindicted Company 1, and the victim Nonindicted 2 (year 38), who is an employee, inspected and repair a gas valve underground under the Manle, gas leakage in a valve, the Defendant: (a) shall direct the above construction; (b) conduct on-site workers, and (c) conduct safety duties, such as conducting safety education and conducting construction safely; and (d) the above construction is being conducted in a sealed space; (b) in accordance with the safety management regulations, the Defendant confirmed that there is no malfunction in advance using gas leakage inspection devices, etc.; and (c) had the workers enter the said area after wearing safety equipment such as gas leakage; (d) check whether the workers take safety measures against the gas leakage; and (e) monitor the procedures for safety measures and actions of the workers; and (e) take necessary measures to prevent accidents, such as immediately leaving the work site.

Nevertheless, on January 31, 2013, the Defendant neglected to take the above measures, and around 15:00 on January 31, 2013, in the process of checking whether to replace an urban gas valve at the above construction site, caused the death of the above Nonindicted Party 3 to the quality due to the oxygen shortage caused by gas leakage. The above Nonindicted Party 2 suffered from cerebral disease caused by the oxygen shortage caused by gas leakage, resulting in an influence of treatment days leading to the uncertainty of consciousness, and did not take measures to prevent industrial accidents caused by gas leakage.

2. Defendant 2 corporation

Defendant 1, an employee of the Defendant, did not take measures to prevent industrial accidents caused by gas leakage, etc. in connection with the Defendant’s duties.

1. An interrogation protocol on Defendant 1 by the prosecution;

1. Each police statement on Nonindicted 4, Nonindicted 6, and Nonindicted 7

1. An investigation report (to submit evidentiary materials of Nonindicted 8);

1. Each request for appraisal;

1. A medical certificate or death certificate;

1. A disaster investigation report and gas safety corporation;

1. A copy of each business registration certificate, a whole certificate of registered matters, and a copy of registered matters;

1. A written estimate, a copy of electronic tax invoice, and a copy of construction contract;

1. Safety control regulations;

1. Article applicable to criminal facts;

C. Defendants: Articles 71, 68 subparag. 2, 29(3), and 29(1)1 of the Industrial Safety and Health Act

B. Defendant 1: Article 268 of the Criminal Act

1. Formal concurrence (Defendant 1);

Articles 40 and 50 of the Criminal Act

1. Selection of punishment (Defendant 1);

Each Imprisonment Selection

1. Aggravation for concurrent crimes (Defendant 1);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution (Defendant 1);

Article 62(1) of the Criminal Act

1. Order to make provisional payment (Defendant 2 Stock Company);

Article 334(1) of the Criminal Procedure Act

1. Violation of the Occupational Safety and Health Act;

A. The assertion

The Defendants and the defense counsel held that Defendant 2 Co., Ltd. (hereinafter “Defendant Co., Ltd.”) contracted to Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) for the inspection and maintenance of valves, and the “business prescribed by the Presidential Decree” under Article 29(1) of the Industrial Safety and Health Act shall be determined on the basis of the actual business performed by the contractor under a contract. The duties of Nonindicted Co. 1 fall under the simple repair business by adding asbestos to the gas leakage confirmation and valve or replacing V and so on. Defendant 1 ordered to take safety measures against Nonindicted Co. 4, an employee of the Defendant Co. 1, who was not at the scene of accident, and thus, Defendant 1 was acquitted.

B. Determination

(1) Facts of recognition

The following facts are acknowledged according to each evidence of the ruling.

(A) On May 2012, Defendant Company contracted with Nonindicted Co. 5 (hereinafter “Nonindicted Co. 5”) for the maintenance and repair of the supply facilities of Nonindicted Co. 5 established in Gangseo-gu Seoul Metropolitan Government, Yangcheon-gu, and Yeongdeungpo-gu, the supply facilities of Nonindicted Co. 5 established in Yeongdeungpo-gu, and carried out gas leakage maintenance and leakage of valves on the road, which are urban gas facilities, and replacement of valves, and replacement of valves.

When the Defendant Company entered the request for repair related to the gas valve from Nonindicted Co. 5, the Defendant Company subcontracted the work of repairing the valves to Nonindicted Co. 1 Company in order to check the gas valve and to determine that the replacement of the valves is unnecessary (in the event that Nonindicted Co. 1 Company deems it necessary to replace the valves, the Defendant Company directly subcontracted the work of replacing the valves after blocking gas).

(B) On January 13, 2013, Nonindicted Co. 1 received a request from the Defendant Company for the inspection and repair of a gas valve under the Manyle located in Yeongdeungpo-gu Seoul ( Address omitted), and the victims, an employee of Nonindicted Co. 1, an employee of Nonindicted Co. 1, were discharged from a large amount of gas during the process of replacing the voltage of gas valves from the sealed space under the Manyle of the above location, and the victim Nonindicted Co. 3 died due to corrosion, and the victim Nonindicted Co. 2 suffered injury due to cerebral disease caused by a low-carbon, leading to unknown consciousness.

(C) Defendant 1 did not take necessary measures to prevent risks, such as measuring the concentration of oxygen, keeping the air system, and using the air system at the time of airing, etc., and did not inform the victims of necessary measures for the inspection and repair of valves due to gas leakage in the sealed space.

(2) Determination

(A) Article 29(3) and Article 29(1)1 of the Occupational Safety and Health Act provides that a business owner prescribed by Presidential Decree among businesses conducted at the same place where part of the business is given a contract by separating a contract, shall take measures to prevent industrial accidents, such as the installation of safety and health facilities, when his/her workers work in a place where there is a risk of industrial accidents, such as fire, explosion, etc., and Article 26(2) of the Enforcement Decree of the Occupational Safety and Health Act (amended by Presidential Decree No. 23545, Jan. 26, 2012; hereinafter the same shall apply) refers to construction business and the business under each subparagraph of Article 23, and Article 2-2(2) of the Enforcement Decree of the same Act provides that the classification of business under this Decree shall be in accordance with the Korean Standard Industrial Classification publicly notified by the Commissioner of the Statistics Korea. In addition, the "business prescribed by Presidential Decree" under Article 29(3) and 29(1)1 of the Occupational Safety and Health Act shall be determined within the scope of the contractor's contract.

In full view of the aforementioned facts, relevant statutes, etc., the duties contracted by the Defendant Company from Nonindicted Co. 5 constitutes “gas pipeline construction” among the construction businesses under the Korean Standard Industrial Classification publicly notified by the Commissioner of the Statistics Korea. Since the duties the Defendant Company received from the Defendant Company are gas valves inspection and repair works (excluding gas valve replacement works) among the supply facility maintenance works of Nonindicted Co. 5, the business of Nonindicted Co. 1 constitutes “business of giving a contract by separating part of the business” under Article 29(3) and Article 29(1)1 of the Industrial Safety and Health Act, and the Defendant Co. 1 constitutes a business owner as prescribed by the above statutes.

(B) In addition, even though the employer is aware of the fact that the workplace without safety measures are being taken at the workplace and that such work will continue in the future, if the workplace took place without taking safety measures, the above crime is established even if the employer did not individually and specifically instruct such work (see Supreme Court Decision 2009Do11906, Nov. 25, 2010, etc.). In full view of the above facts of recognition and relevant statutes, Defendant 1 failed to take measures such as measuring oxygen concentration, keeping a gas valve repair work at the scene of the accident without taking measures such as preventing the victims from complying with the safety measures, and it is difficult to view Defendant 1’s failure to comply with Article 641 of the Industrial Safety Standards, etc., solely on the ground that the victims were able to be able to receive gas valves repair work at the scene.

(C) Therefore, the Defendants and the defense counsel’s arguments are rejected.

2. Injury caused by occupational negligence;

Defendant 1 and his defense counsel asserted to the effect that there was no causal relationship between Defendant 1’s occupational negligence and Nonindicted 2’s bodily injury, even though Nonindicted 2 got out of the Manle at the time of the instant accident and escaped to a safe place, and thus, the risk was inflicted upon himself.

In light of the following circumstances acknowledged by the aforementioned evidence, i.e., when the gas was emitted during the work, Nonindicted 2 went out of the front bridge with the knowledge that Nonindicted 3 was unable to get out of the Manle, but the time when Nonindicted 2 went out of the Manle after entering again, is only about one minute. The work site of this case is about 1.8m in width, 1.3m in height, 1.8m in height, and 0.75m in height and 1.8m in height, gas pressure pressure gas was cut out, and large quantities of gas was cut out. Considering the fact that Nonindicted 2 appears to fall out of the Manle after gas distribution, it is not accepted that there was a proximate causal relation between Defendant 1’s negligence and his attorney’s injury on the part of his defense counsel.

Although the Defendants failed to take proper safety measures and caused a serious result that the victims died or knew, there was an agreement with the bereaved family members of the victim Nonindicted 3, the victims neglected to exercise due diligence, and Defendant 1 did not have any criminal record except for those punished by a fine around 2002, and the punishment is determined as ordered by taking into account various sentencing factors that were shown in the arguments, such as Defendant 1’s age, health status, character and conduct, environment, and conditions before and after the crime.

Judges Yellow Min-young