CONTENTS
- 1. Industrial Accident Death, a Case Addressing Whether the Crime of Violating the Occupational Safety and Health Act Is Established Against a Construction Work Orderer
- - Industrial Accident Death, the Diverging Determinations of the First Instance and the Appellate Court
- 2. Industrial Accident Death, the Supreme Court's Determination on the Crime of a Construction Work Orderer Violating the Occupational Safety and Health Act
- 3. Industrial Accident Death, Daeryun's Strategy on the Crime of Violating the Occupational Safety and Health Act
1. Industrial Accident Death, a Case Addressing Whether the Crime of Violating the Occupational Safety and Health Act Is Established Against a Construction Work Orderer
This case addressed whether, when an industrial accident death occurs, the crime of violating the Occupational Safety and Health Act is also established against the construction work orderer.
The accident in this case occurred in 2020 during repair work on the Incheon Port lock gate. A worker was lowering an H-beam (42.5 kg), a hydraulic jack, tools, and other items from the upper part of the lock gate to the lower floor 18 meters below using a winch. While he was doing so, the winch frame located near the victim toppled over and fell beneath the lock gate, and the victim, who was holding a guide line connected to the winch frame, also fell to the floor and died.
Defendant 1 was the president of Corporation F, which was established for purposes including the execution of works related to the construction, reconstruction, maintenance, repair, and dredging of port facilities, as well as businesses related to the management and operation of the port, such as port security, guarding, cargo management, and passenger terminals. He was the contractor for the construction in this case.
While the work was being contracted out, Defendant 1 argued that, because he qualified as a “construction work orderer” under Article 2, Subparagraph 10 of the Occupational Safety and Health Act, he did not bear liability as an employer or a contractor under that Act.
This case turned on the criteria for distinguishing a “construction work orderer” from a “contractor” under the Occupational Safety and Health Act.
Industrial Accident Death, the Diverging Determinations of the First Instance and the Appellate Court
In this industrial accident death case, the court of first instance determined that, normatively, Corporation F held the “position of leading, overseeing, and managing the execution” of the construction in this case, and therefore bore the duty of care of a contractor rather than a construction work orderer. Accordingly, it found that Defendant 1, the president of Corporation F, was also liable for the victim's death.
The court of first instance noted that Corporation F operated a disaster safety office, a lock gate management office, and similar bodies that managed the lock gate repair work and the resulting accidents; that Corporation F's personnel and budget were far superior to those of Company C, the subcontractor to which the victim belonged; and that Corporation F had given prior approval for hazardous work by Company C.
The appellate court, however, determined that Corporation F did not hold the position of leading, overseeing, and managing the execution of the construction in this case under the Occupational Safety and Health Act.
The appellate court viewed that a party who lacks the qualifications or capacity to carry out construction work directly and therefore has no choice but to contract the construction out to another employer qualifies as a construction work orderer under that Act, absent special circumstances such as having arbitrarily created such an appearance in order to evade liability under the Occupational Safety and Health Act.
Accordingly, it determined that Corporation F qualified as a “construction work orderer” rather than a contractor, and it acquitted Corporation F and Defendant 1, the president of Corporation F.
It stated that, even assuming they qualified as contractors, it was difficult to find that the defendants had intent to violate the law or to hold them liable for failing to fulfill the safety and health measure obligations at a workplace where a serious accident had occurred.
2. Industrial Accident Death, the Supreme Court's Determination on the Crime of a Construction Work Orderer Violating the Occupational Safety and Health Act
In this industrial accident death case, the Supreme Court held that Defendant 1 should be regarded as a contractor under the Occupational Safety and Health Act, going beyond a mere construction work orderer regardless of whether he held a construction firm's execution qualifications, and it found that he was liable for the victim's death.
The Supreme Court found that Defendant 1 maintained a dedicated department for the maintenance and repair of the lock gate, a core port facility, and held substantial authority to control and manage the hazardous and dangerous factors related to the prevention of industrial accidents that could arise in the course of the periodic lock gate repair work.
The Supreme Court viewed that, as a contracting employer with high expertise concerning the periodic lock gate repair work, Defendant 1 exercised substantial influence over the subcontractor, and it stated that whether a party qualifies as a construction work orderer must be evaluated normatively.
Finding that the lower court had erred by misunderstanding the legal principles regarding the distinction between a construction work orderer and a contractor under the Occupational Safety and Health Act, and regarding a worker's death resulting from a violation of the safety and health measure obligations under that Act and the crime of an employer's violation of the safety and health measure obligations, the Supreme Court reversed and remanded the lower judgment.
3. Industrial Accident Death, Daeryun's Strategy on the Crime of Violating the Occupational Safety and Health Act
An industrial accident death is punishable under the Occupational Safety and Health Act.
The amended Occupational Safety and Health Act introduced a provision defining “contracting” as “a contract, regardless of its title, under which the manufacture, construction, repair, or provision of goods, the provision of services, or other work is entrusted to another person,” and it provided that an employer qualifying as a contractor bears safety and health measure obligations not only toward its own workers but also toward the workers of related subcontractors.
This significantly expanded the scope of contractors who bear safety and health measure obligations toward the workers of related subcontractors working at their worksites.
Under the Occupational Safety and Health Act, where a contracting employer is evaluated as a contractor rather than a construction work orderer, the likelihood has increased that it will bear substantially strengthened liability, as safety and health measure obligations are imposed on it with respect to the workers of related subcontractors working at the contractor's worksite, and aggravated punishment provisions apply when repeated fatal accidents occur.
Accordingly, when placing a construction order, a party should carefully review, with the assistance of an attorney experienced in this area, the location of authority over the safety management and the control and management of the worksite.
At Daeryun Law Firm LLP, 🔗attorneys experienced in labor and industrial accident matters, with experience at the courts, the prosecution service, the Administrative Appeals Commission, the Ministry of Employment and Labor, and major corporations, draw on their accumulated experience and know-how to provide solutions tailored to each client's situation.
