[Defendant] Defendant 1 and 3 others
[Appellant] Defendant 2 and 1 other, and the Prosecutor
[Defense Counsel] Attorney Kim Yong-pyo
[Lower Court Judgment] Daegu District Court Judgment of July 17, 2008, 2008No1468
[Order]
The part of the judgment below concerning Defendant 1's occupational negligence resulting in death, and the parts concerning Defendant 2 and Defendant 3 Corporation, are each reversed, and this part of the case is remanded to the panel division of the Daegu District Court. The remainder of the Prosecutor's appeal against Defendant 1 and the Prosecutor's appeal against Defendant 4 Corporation are each dismissed.
[Reasoning]
The grounds of appeal are examined.
1. Regarding the violation of the Occupational Safety and Health Act (산업안전보건법)
A. Regarding the Prosecutor's grounds of appeal
Article 29, Paragraph 2 of the Occupational Safety and Health Act (hereinafter referred to as the "Act") provides that "a business owner under Paragraph 1 shall take measures for the prevention of industrial accidents as prescribed by Ministry of Labor Ordinance when workers employed by its subcontractor perform work at a place where there is a risk of industrial accidents as prescribed by Ministry of Labor Ordinance." Here, "a business owner under Paragraph 1" refers to "the business owner of a business prescribed by Presidential Decree, being a business in which a part of the work performed at the same place is subcontracted," as provided in Article 29, Paragraph 1 of the Act, and does not include the business owner of a business in which the "entirety," rather than a part, of the work performed at the same place is subcontracted (see Supreme Court Decision 2005Do4802, delivered on October 28, 2005; Supreme Court Decision 2007Do5782, delivered on July 10, 2008, etc.).
In the same vein, the lower court's decision to uphold the first instance judgment, which acquitted Defendant 1 and Defendant 4 Corporation of each charge of violating the Occupational Safety and Health Act on the ground that Defendant 4 Corporation had subcontracted the entirety, not merely a part, of the work performed at this construction site, is justified, and there is no error therein such as misapprehension of the law or violation of the rules of evidence as alleged.
B. Regarding the grounds of appeal of Defendant 2 and Defendant 3 Corporation
Article 23, Paragraph 3 of the Occupational Safety and Health Act requires a business owner to take necessary measures to prevent risks at places where risks are anticipated to arise in the course of performing work, such as places where there is a risk of workers falling during work, while Paragraph 4 of the same Article delegates to Ministry of Labor Ordinance the safety measures that a business owner must take pursuant to Paragraph 3. The Rules on Industrial Safety Standards (이하 '규칙', hereinafter referred to as the "Rules"), enacted pursuant to such delegation, specifically provide for the necessary measures that a business owner must take to prevent risks according to the type of work, and Article 66-2 of the Act provides that where a business owner causes the death of a worker by violating the duty to take necessary measures to prevent such risks as described above, the business owner shall be punished by imprisonment for not more than 7 years or a fine not exceeding 100 million won. Comprehensively considering these provisions, the crime of violating Articles 66-2 and 23, Paragraph 3 of the Act by a business owner is established only where it is recognized that the violation was committed by the business owner, such as where the business owner directs work to be performed in relation to work involving safety risks as provided in Article 23, Paragraph 3 of the Act at the business owner's own workplace without taking the safety measures prescribed by the Rules, or where the business owner is aware that such work is being performed without such safety measures having been taken but nevertheless neglects to act. The mere fact that risky work was performed without other possible safety measures beyond those prescribed by the Rules having been taken does not, in itself, establish the above crime (see Supreme Court Decision 2005Do3700, delivered on April 28, 2006; Supreme Court Decision 2007Do7987, delivered on August 11, 2008; Supreme Court Decision 2008Do5707, delivered on September 25, 2008, etc.).
The lower court upheld the first instance judgment, which found Defendant 2, as the scaffolding team leader of Defendant 3 Corporation and the safety manager at the site in question, guilty of the charge of violating the Occupational Safety and Health Act on the ground that, despite having a duty to take measures to prevent workers from falling, such as installing fall prevention nets, prior to the scaffolding dismantling work, Defendant 2, focusing excessively on the convenience and efficiency of the dismantling work, removed the fall prevention nets that had been installed at 3-meter intervals and directed workers to carry out the scaffolding dismantling work without taking any separate safety measures, and found Defendant 3 Corporation guilty on the ground that its employee committed the violation in the course of its business.
However, such determination by the lower court is difficult to accept for the following reasons.
Even if Defendant 2, focusing excessively on the convenience of the work, etc., removed the fall prevention nets installed at 3-meter intervals and failed to take additional risk-prevention measures such as installing mattresses, this cannot be deemed to constitute a violation of the safety measure obligation under Article 23, Paragraph 3 of the Act, so long as the Rules do not separately provide for an obligation to install such fall prevention nets, etc.
Furthermore, Article 372, Paragraph 1 of the Rules provides that "a business owner shall comply with the following matters when performing work to assemble, dismantle, or alter a hanging scaffold or a scaffold of 5 meters or more in height," and Subparagraph 1 of the same Paragraph provides "to have the work performed under the direction of a management supervisor," Subparagraph 2 provides "to educate the workers engaged in the work on the timing, scope, and procedure of assembly, dismantling, or alteration," Subparagraph 3 provides "to prohibit the entry of persons other than the workers engaged in the relevant work into the area where assembly, dismantling, or alteration work is being performed, and to post such information in a place where it can be easily seen," and Subparagraph 5 provides "when performing work to connect or dismantle scaffold materials, to install a scaffold plank of 20 centimeters or more in width and to take measures to prevent workers from falling, such as having workers use safety belts."
According to the record, it can be seen that: at the time of this accident, Defendant 2, foreman Non-indicted 1, and one safety officer each from Defendant 3 Corporation and Defendant 4 Corporation were stationed at the fifth-floor slab area of the construction site, performing the duties of directing work and supervising and managing safety; on November 20, 2006, special safety education regarding scaffold installation and dismantling was conducted for the workers over a period of 2 hours, and safety education had been conducted every morning; the victim had performed scaffolding dismantling work at the same location the day before this accident and was thus familiar with the content of the work; the elevator entrance on the 3rd floor of the clean room was blocked using ropes and tripods so that persons other than workers could not enter; at this work site, not only work platforms but also two-tier safety railings had been installed, but the safety railings were removed on the day of the accident for the scaffolding dismantling work; the victim was wearing a safety helmet and safety belt, and the safety officer and supervisor were controlling the work so that workers hooked their safety belt clips while working. In light of these factual circumstances, it also cannot be said that Defendant 2 violated the safety measure obligation under the Rules.
Nevertheless, the lower court upheld the first instance judgment, which found that Defendant 2 and Defendant 3 Corporation violated the safety measure obligation under Article 23, Paragraph 3 of the Act based merely on the circumstances alleged in the indictment. Such determination by the lower court constitutes an error affecting the judgment by misapprehending the legal principles concerning the scope of the safety measure obligation under Article 23, Paragraph 3 of the Occupational Safety and Health Act. Therefore, the argument in the grounds of appeal of Defendant 2 and Defendant 3 Corporation pointing this out is well-founded.
Meanwhile, where multiple crimes in an imaginary concurrence relationship (상상적 경합관계) are only partially found guilty as opposed to being found guilty in their entirety, there arises a difference in the consideration of sentencing factors, and consequently a difference may arise in determining the sentence to be imposed, ultimately affecting the result of the judgment (see Supreme Court en banc Decision 80Do384, delivered on December 9, 1980; Supreme Court Decision 2005Do5432, delivered on October 27, 2005, etc.). Accordingly, the part of the judgment below concerning Defendant 2 cannot avoid reversal in its entirety.
2. Regarding the crime of occupational negligence resulting in death
A. Regarding Defendant 2's grounds of appeal
Upon examination in light of the relevant legal principles and the record, the lower court's determination, with respect to the part of Defendant 2's occupational negligence resulting in death, that the facts of the offense as stated in the judgment could be sufficiently recognized based on the evidence stated therein, and its rejection of the ground of appeal that this accident was an unavoidable accident that did not occur due to Defendant 2's negligence, is justified, and there is no error therein such as misapprehension of the law or violation of the rules of evidence affecting the outcome of the judgment as alleged in the grounds of appeal.
B. Regarding the Prosecutor's grounds of appeal
According to the reasoning of the judgment below, the lower court upheld the first instance judgment, which acquitted not only Defendant 1 and Defendant 4 Corporation of the crime of violating the Occupational Safety and Health Act but also Defendant 1 of the crime of occupational negligence resulting in death, on the ground that Defendant 4 Corporation, being a business owner that subcontracted the "entirety" of the work performed at the same place, ultimately does not fall under a business owner obligated to perform the safety measure duty under Article 29, Paragraph 2 of the Act.
However, such determination by the lower court is difficult to accept for the following reasons.
In the case of a subcontract agreement, in principle, the principal contractor does not have a duty of care to take safety measures necessary to prevent accidents in relation to the subcontractor's work; however, where there are special circumstances such that the principal contractor is granted specific duties of management and supervision, etc. regarding the subcontractor's work by statute, or where the principal contractor has specifically directed and supervised the construction work or individual work, the principal contractor also has a duty of care to take safety measures necessary to prevent accidents in relation to the subcontractor's work (see Supreme Court Decision 95Do2263, delivered on January 26, 1996, etc.).
According to the record, it can be seen that: Defendant 1, as the site manager of this construction site, was designated as the safety and health management supervisor under Article 13 of the Act and comprehensively directed and supervised safety and health management duties, and 15 employees belonging to Defendant 4 Corporation, having divided the duties among themselves, specifically managed and supervised the work site; Non-indicted 2, in charge of construction execution for Defendant 4 Corporation, prepared a very specific work procedure document regarding the dismantling of the scaffold in question, which, after review by safety deputy Non-indicted 3, construction section chief Non-indicted 4, and deputy site manager Non-indicted 5, was approved by site manager Defendant 1; the above plan included detailed work procedures such as conducting special safety education for workers, establishing entry-prohibited areas, and dismantling fall prevention nets by floor, and included specific work content stating that, during the first dismantling (6th floor and above), the fall prevention nets would be dismantled floor by floor, and during the second dismantling (1st to 5th floors), all safety nets down to the first floor would be dismantled; Defendant 3 Corporation, under the supervision of Defendant 4 Corporation's safety officer, removed all safety nets in accordance with the above work procedure document and was proceeding with the scaffolding dismantling work when this accident occurred; at the time of the accident, one safety officer of Defendant 4 Corporation was also supervising the workers' work at the work site; and deputy Non-indicted 3 of Defendant 4 Corporation, among others, conducted special safety education on scaffold installation and dismantling work for workers, including the victim, for 2 hours starting around 07:20 on November 20, 2006. In light of these various circumstances, it can be said that Defendant 1, as the site manager of this construction site, specifically directed and supervised the work of workers of Defendant 3 Corporation, the subcontractor, in relation to this scaffolding dismantling work, and thus had a duty of care to take safety measures necessary to prevent accidents in relation to the above work.
If so, the lower court should have carefully examined the duty of care to be recognized as applicable to Defendant 1, and determined whether Defendant 1 was negligent in failing to take the necessary safety measures in relation to this scaffolding dismantling work. However, the lower court's determination acquitting Defendant 1 of the crime of occupational negligence resulting in death solely on the ground that Defendant 4 Corporation does not fall under a business owner obligated to perform the safety measure duty under Article 29, Paragraph 2 of the Act, without conducting a full examination, constitutes an error of failing to exhaust the examination and misapprehending the legal principles concerning the scope of application of the Occupational Safety and Health Act, which affected the result of the judgment. Therefore, the argument in the grounds of appeal pointing this out is well-founded.
3. Conclusion
Accordingly, the part of the judgment below concerning Defendant 1's occupational negligence resulting in death, and the parts concerning Defendant 2 and Defendant 3 Corporation, are reversed, and this part of the case is remanded to the court below for further examination and determination, and the remainder of the Prosecutor's appeal against Defendant 1 and the Prosecutor's appeal against Defendant 4 Corporation are each dismissed. This judgment is rendered in accordance with the unanimous opinion of the participating Justices as stated in the Order.
Justice Shin Young-cheol (Presiding Justice), Park Si-hwan, Park Il-hwan (Justice in Charge), Ahn Dae-hee