Defendant

Defendant

Private Armed Forces

Attorney Kim Young-young

Daegu District Court Decision 2006Gohap637 Decided May 30, 2006

The judgment of the court below is reversed.

A defendant shall be punished by a fine of 500,000 won.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

The charge of violating the duty to take safety measures among the charges of this case is acquitted.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles (the violation of duty to take safety measures under the Occupational Safety and Health Act)

In light of the fact that Nonindicted Party 1, who died of the instant accident, was responsible for safety control affairs within the workplace by assisting the Defendant, a business owner, as the factory site (trade name omitted) operated by the Defendant. Prior to the occurrence of the instant accident, Nonindicted Party 1 refused to comply with the fuel tank contact work installed on the vehicle. The instant fuel tank was installed on the 23 tons dump truck and requested to melt the mouth part, and it was alleged that all other employees than Nonindicted Party 1 are dangerous and at the same time requested to do so, Nonindicted Party 1 could not use the fuel tank at the request of Nonindicted Party 1 while expanding gas due to the increase in temperature inside the fuel tank, and did not perform safety measures under the Occupational Safety and Health Act, taking into account the fact that Nonindicted Party 1 could not have been found guilty of the Defendant’s failure to take safety measures at the time of the instant accident, and thus, the lower court did not have determined that the Defendant did not have been guilty at all at the time of the instant accident.

B. Unreasonable sentencing

Even if all of the facts charged in the instant case are found guilty, the sentence of the lower court (fine of KRW 3 million) is too unreasonable.

2. Ex officio determination

First of all, prior to the judgment on the grounds of appeal by the defendant, since the public prosecutor applied for changes in the indictment that changes the contents of each indictment and the party members permitted it, the judgment of the court below, which is based on the premise of the initial indictment, cannot be maintained any longer due to changes in the subject of the judgment.

However, even if there is such ground for ex officio reversal in the judgment below, the argument of mistake or misapprehension of legal principles that the defendant adopted as the ground for appeal is still subject to the adjudication of this court within the scope of the modified facts charged. Thus, we first examine the above argument.

3. As to the violation of duty to take safety measures under the Occupational Safety and Health Act

A. The revised facts charged

Although the Defendant is the representative of a business establishment located in Daegu (Sevis omitted), and is the business owner who controls overall management of matters concerning safety and health in the workplace, and the business owner has to take necessary measures to prevent danger caused by explosive, inflammable or inflammable substances, etc. generated in the course of operating his/her business, the Defendant did not take necessary measures to prevent explosion or fire, such as removal of inflammable or inflammable substances or dangerous substances in advance on containers such as pipes, tanks, or drums, even though there exists fuel inside the fuel tank in having Nonindicted 1 and 2 conduct the fuel tank contact work of the vehicle at around 14:00 on August 26, 2005.

(b) Related statutes;

Article 1 (Purpose of the Industrial Safety and Health Act (amended by Act No. 7920 of Mar. 24, 2006; hereinafter the same) provides that "the purpose of this Act is to maintain and promote the safety and health of workers by establishing standards for industrial safety and health and by creating a pleasant working environment through clarifying where the responsibility lies, and by preventing industrial accidents, and by creating a pleasant working environment," Article 23 (1) of the same Act provides that "the business owner shall take necessary measures to prevent any danger falling under any of the following subparagraphs that may occur in the course of carrying out the business." Article 23 (Safety Measures) of the same Act provides that "The safety measures to be taken by the business owner pursuant to the provisions of paragraphs (1) through (3) shall be determined by Ordinance of the Ministry of Labor." Article 67 (Penal Provisions) of the same Act provides that "a person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than 5 years or by a fine not exceeding 50,000 won."

Meanwhile, Articles 267 and 267 of the Rules on the Industrial Safety Standards (amended by Ordinance of the Ministry of Labor No. 241 of Oct. 7, 2005) of the same Act (amended by Ordinance of the Ministry of Labor, Oct. 7, 2005) provide that "the business owner shall not conduct any work using melting, melting, or other dangerous weapons or any dangerous work that may cause fire, unless he/she takes measures for the prevention of explosion or fire, such as removal of inflammable oil, inflammable dust or dangerous substances, in advance on containers of dangerous substances, oil other than dangerous substances, or pipes, tanks, tanks, drums, etc. where inflammable or inflammable dust is likely to exist."

C. Issues

According to the records, at around 14:00 on August 26, 2005, Nonindicted Party 1 performed the fuel tank contact work at the instant workplace operated by the Defendant, and even though there are fuels inside the fuel tank, it is recognized that Nonindicted Party 1 did not take necessary measures for the prevention of explosion or fire, such as the removal of inflammable oil and inflammable dust or dangerous substances, and died from the wind that the fuel tank explosion (hereinafter “instant accident”).

Based on these facts, the prosecutor did not take necessary measures to prevent the risk of explosion when the defendant, who is the business owner, was employed by Nonindicted Party 1, who contained the risk of explosion as above. This act was prosecuted as falling under Article 67 subparag. 1 of the Occupational Safety and Health Act in violation of Article 23(1) of the same Act.

However, in full view of the legislative intent and relevant provisions of the Industrial Safety and Health Act, a business owner’s duty to take safety measures under Article 23 of the same Act provides that a business owner shall take necessary measures to prevent risks that may arise in the course of performing his/her business, i.e., the risks of an industrial accident that a business owner may sustain in the course of performing his/her business. Thus, it is reasonable to view that the risks of an industrial accident to be prevented or prevented by a business owner are limited to risks that the business owner may control in relation to the pertinent business. Therefore, the mere fact that an industrial accident occurred while an employee was engaged in dangerous work inside the workplace does not constitute a violation or presumption of a business owner’s duty to take safety measures under the Industrial Safety and Health Act. At least, a business owner may be held accountable for the industrial accident only in cases where it is deemed that there is an error by a business owner’s failure to cause the industrial accident to be exposed to or to remove the risks already occurred. Accordingly, the business owner may be held liable for the industrial accident even if it did not recognize or recognize the risks of the industrial accident in advance.

The issue of the instant case is whether the Defendant, a business owner, was aware or aware that Nonindicted 1, the head of the factory at the time of the instant case, was engaged in melting operations without taking necessary measures to prevent explosion or fire, such as removal of inflammable oil, etc., with respect to the fuel tank of vehicles that are likely to have inflammable oil, etc.

D. Determination

In light of the records, the Defendant, a business owner of the instant plant, was mainly engaged in external business activities and frequently carried out the said workplace. On the other hand, Nonindicted Party 1, a factory site, took overall charge of the work in the instant workplace, such as selecting a day-to-day employee and supervising the site employees. Nonindicted Party 1, a factory site, had an employee frequently induced the risk of work, and the vehicle’s fuel tank is difficult to completely remove the fuel contained therein. Accordingly, the Defendant and Nonindicted Party 1 had been urged to refuse repair or exchange the fuel tank with a new fuel tank even if requested work at ordinary times. As such, the Defendant and Nonindicted Party 1, even once before the instant accident occurred, did not carry out the fuel tank contact work within the instant workplace. At the time of the instant accident, Nonindicted Party 1, a factory site, had been in charge of the fuel tank contact work without completely removing the fuel in spite of the kinds of other employees, and continued to be in charge of the fuel tank’s direct operation during the instant accident.

According to the above facts, it is reasonable to view that at the time of the accident of this case, the defendant was not able to directly perform its work without taking necessary measures for explosion or fire prevention, such as removal of inflammable oil remaining in the fuel tank, etc., as the non-indicted 1 was requested by the owner of the vehicle to conduct the work, which is highly dangerous work for explosion, unlike ordinary times, at the time of accident of this case.

Therefore, in relation to the instant accident, it cannot be found that the Defendant did not perform its duty to take safety measures under Article 23(1) of the Occupational Safety and Health Act, and there is no other evidence to prove the facts charged.

3. Conclusion

Therefore, without examining the grounds for appeal by the defendant pointing out unfair sentencing, the judgment of the court below is reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the following is again decided through pleading.

The defendant is the representative of the business place located in Daegu (Sagu omitted) and is the business owner who exercises overall control over matters concerning safety and health at the business place, and the business owner shall report the outline of occurrence, damage situations, etc. to the head of the competent local labor office within 24 hours by telephone, facsimile, or other appropriate means. However, as described in paragraph (1) below, the defendant did not report the occurrence of an explosion that occurred during the work, as described in paragraph (1), around September 13, 2005, and around 14:00, when Non-Indicted 1 died, which is the reporting period.

The summary of evidence admitted by a member is the same as the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 69 subparagraph 1 of the Occupational Safety and Health Act and Article 10 (1) of the same Act

2. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

3. Order of provisional payment; and

Article 334(1) of the Criminal Procedure Act

The facts charged as to the violation of the Occupational Safety and Health Act due to the violation of the duty to take safety measures are as stated in Article 3-1(a) through (d) above, and in this regard, there is no proof of a crime for the same reason as stated in Article 3-2(b) through (d) above, and thus,

Justices Kim Tae-tae (Presiding Justice)