Is there a way to avoid a custodial sentence for a violation of the Occupational Safety and Health Act?

Hello. This is an attorney specializing in occupational safety at Daeryun Law LLC.

In a case where a worker's death occurs due to a violation of the Occupational Safety and Health Act, as you mentioned, under Article 167 of the Occupational Safety and Health Act, imprisonment for up to 7 years or a fine of up to 100 million won is possible, and depending on the circumstances, the Serious Accidents Punishment Act and occupational negligence causing death under the Criminal Act may also be at issue, so the criminal risk is by no means light.

However, a custodial sentence is not immediately imposed in every case, and there are also many cases in which a custodial sentence was avoided through careful legal response tailored to each matter.

In determining whether a custodial sentence is warranted, the factors that investigative agencies and the court focus on most are the safety management system in place before the accident, the degree to which the representative or manager fulfilled their duty of care, and the attitude of the response after the accident occurred.

In other words, the weight of liability is assessed differently between a case in which the safety measures required by law were not implemented at all and a case in which a basic management system was in place but certain inadequate aspects led to the accident.

In particular, in cases involving a violation of the Occupational Safety and Health Act, the key issues are ① whether criminal liability is attributed to the representative personally, ② how the structure of shared liability with the on-site management supervisor is configured, ③ whether the accident was foreseeable and avoidable, and ④ whether the degree of occupational negligence amounts to ‘gross negligence’.

Depending on these points, the conclusion is divided among a custodial sentence, a suspended sentence, and a fine.

Even after an accident has already occurred, it is very important to comprehensively demonstrate matters such as an objective analysis of the cause of the accident, the organization of existing safety training and inspection records, whether post-accident recurrence prevention measures were implemented, and responsible measures taken toward the bereaved family.

These materials can be recognized as substantive grounds for a reduction of sentence only when they are legally structured and explained in a direction that limits criminal liability.

Because the very nature of a case involving a violation of the Occupational Safety and Health Act can change depending on the initial statements and the direction of the investigative response, responding with the assistance of an attorney who understands both the Occupational Safety and Health Act and criminal practice from the investigation stage plays a decisive role in lowering the possibility of a custodial sentence.

You should note that a strategy to avoid a custodial sentence is not something created after the fact but must be designed from this very stage.

Our firm responds with relevant legal professionals, such as attorneys specializing in occupational safety and attorneys specializing in criminal law, who prepare strategies suited to the client's matter.

If you need assistance, I recommend that you proceed with a consultation.