CONTENTS
- 1. The Client Charged with Violation of the Occupational Safety and Health Act
- 2. The Complainant's Arguments in the Case of Violation of the Occupational Safety and Health Act
- - Review of the Laws on Violation of the Occupational Safety and Health Act
- 3. Defense of the Client Charged with Violation of the Occupational Safety and Health Act
- 4. No Prosecution Disposition for the Client in the Violation of the Occupational Safety and Health Act Case as a Result of the Prosecutorial Investigation
1. The Client Charged with Violation of the Occupational Safety and Health Act
The client, who came to Daeryun Law stating that he was under suspicion of violating the Occupational Safety and Health Act, was in the following situation.
The complainant was a bereaved family member of worker A, who had died while working at the workplace operated by the client.
Another employee, B, who worked at the client's workplace, was an employee who drove a cargo truck. While unloading a large quantity of cargo from the cargo truck he was driving, B caused the cargo to fall, leading to the death of A.
Accordingly, the complainant filed a criminal complaint against the client, claiming that A died because the client, as the business owner, failed to observe safety rules.
2. The Complainant's Arguments in the Case of Violation of the Occupational Safety and Health Act
In the case of the client charged with violating the Occupational Safety and Health Act, the complainant argued as follows.
The complainant stated that, according to the complainant's review of the CCTV footage, there was no safety management supervisor at the site and that not even minimal safety rules were in place.
The complainant argued that A died because the client's workplace was a worksite where not even the basic safety rules required by statute were observed.
Review of the Laws on Violation of the Occupational Safety and Health Act
The client charged with violating the Occupational Safety and Health Act faced punishment under the following statute.
Occupational Safety and Health Act Article 167 (Penalty Provisions)
① Article 38(1) through (3) A person who, in violation of these provisions, causes the death of a worker shall be punished by imprisonment for not more than seven years or a fine of not more than one hundred million won.
Article 38 (Safety Measures) ① A business owner shall take the measures necessary to prevent industrial accidents caused by any of the dangers falling under any of the following items.
② A business owner shall, when performing excavation, quarrying, loading and unloading, logging, transportation, operation, conveyance, dismantling, the handling of heavy objects, or other work, take the measures necessary to prevent industrial accidents caused by dangers arising from poor work methods and the like.
③ A business owner shall take the measures necessary to prevent industrial accidents that may occur when a worker performs work at a place falling under any of the following items.
1. A place where there is a danger of a worker falling
2. A place where there is a risk of collapse of earth, sand, structures, or the like
3. A place where there is a danger of objects falling or flying
4. A place where there is a risk of danger arising from natural disasters
The client charged with violating the Occupational Safety and Health Act, as the person responsible for management, had violated the duty to secure safety and health under the Occupational Safety and Health Act and related statutes by failing to assign a safety management supervisor to the location where the fatal accident occurred, and was therefore subject to imprisonment for not more than seven years or a fine of not more than one billion won.
3. Defense of the Client Charged with Violation of the Occupational Safety and Health Act
We undertook the defense in order to clear the charges against the client accused of violating the Occupational Safety and Health Act.
Violation of the Occupational Safety and Health Act
Mr. A, who allegedly died as a result of the client's violation of the Occupational Safety and Health Act, merely transported cargo under a contract with another company and never provided labor to the client.
Mr. A was a sole proprietor who personally bore the costs of vehicle repair and maintenance, fuel, and the like using a vehicle he had purchased himself, who bore responsibility on his own for any cargo damage arising during transport, and who issued tax invoices to and was paid by various business partners after transporting their cargo, so it is difficult to regard him as a worker.
Accordingly, Mr. A, as a sole proprietor operating as an owner-operator under a vehicle-leasing arrangement, is not a worker, and because he did not provide labor on a regular basis to the client's company with exclusivity, he also does not qualify as a worker in a special type of employment.
Mr. A is not a person protected under the Occupational Safety and Health Act, so the said statute cannot be applied.
4. No Prosecution Disposition for the Client in the Violation of the Occupational Safety and Health Act Case as a Result of the Prosecutorial Investigation
With the assistance of Daeryun Law, the client charged with violating the Occupational Safety and Health Act was able to obtain a no prosecution disposition as a result of the prosecutorial investigation.
No Prosecution means that, in the prosecutor's judgment, public prosecution will not be instituted. Given A's death, the client's punishment had seemed unavoidable, but this was a result obtained because of the assistance of a specialist attorney at Daeryun Law.
In the course of operating a workplace, various incidents and accidents are bound to arise. If you need help, please reach out to Daeryun at any time.
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