CONTENTS
- 1. A Subcontractor's Worker Fatality Case to Which the Serious Accidents Punishment Act Was Applied
- 2. The Court's Determination on Whether the Serious Accidents Punishment Act Was Violated
- - Issue 1. Whether the Duty to Secure Safety and Health Under the Serious Accidents Punishment Act Was Violated
- - Issue 2. Distinguishing the Party With Actual Authority to Direct and Manage Between the Primary Contractor and the Subcontractor
- - Issue 3. The Requirements for Establishing a Violation of the Occupational Safety and Health Act and Occupational Negligence Causing Death
- 3. The Significance and Implications of the Serious Accidents Punishment Act Judgment
- - Serious Accidents Punishment Act Cases, Daeryun's Strategy
1. A Subcontractor's Worker Fatality Case to Which the Serious Accidents Punishment Act Was Applied
This case, in which a violation of the Serious Accidents Punishment Act was at issue, occurred at a sewer pipe maintenance project site in Gunsan-si, Jeollabuk-do.
In October 2022, Worker C, who belonged to the subcontractor, entered an excavation site where the earth-retaining shoring had been removed in order to retrieve a tool, and during that time he was buried and killed by a collapse of the ground.
At the time of the accident, the specifications stated that backfilling had to be carried out before the shoring was removed. At the site, however, this was not followed, and the earth-retaining shoring was removed first, and access to the excavation site was not controlled.
The prosecution indicted the representative director and the site manager of S Construction, the primary contractor, on charges including a violation of the 🔗Serious Accidents Punishment Act, alleging that they had failed to fulfill their duty to secure safety and health, thereby causing an industrial accident.
Meanwhile, the site manager (an internal director) belonging to the subcontractor and the corporation were also indicted on charges of a violation of the Occupational Safety and Health Act and 🔗occupational negligence causing death.
2. The Court's Determination on Whether the Serious Accidents Punishment Act Was Violated
On the question of whether the Serious Accidents Punishment Act had been violated, the court rendered its judgment on May 16, 2025.
The decision contained points that drew some controversy.
The court sentenced the subcontractor's site manager to eight months' imprisonment with a two-year suspended sentence (a suspended sentence under Korean law, broadly comparable to a suspended sentence or probation in common-law systems, under which the conviction loses its effect once the suspension period passes without incident), while it found the primary contractor's representative director and the site manager of S Construction not guilty.
In addition, a fine of 5 million won was imposed on the subcontractor corporation, and a fine of 4 million won was imposed on the primary contractor corporation.
This judgment appears likely to be regarded as the first case to assess the legal liability of the primary contractor and the subcontractor separately, serving as an important precedent for the interpretation of the Serious Accidents Punishment Act.
Issue 1. Whether the Duty to Secure Safety and Health Under the Serious Accidents Punishment Act Was Violated
The prosecution sought to hold the primary contractor's representative director criminally liable on the ground of a violation of the duty to secure safety and health under the Serious Accidents Punishment Act.
Specifically, it alleged the following breaches of duty.
▶Failure to establish evaluation criteria for the performance of duties by the safety and health manager and to conduct the semiannual inspections (Article 4, Subparagraph 5, Item (b) of the Enforcement Decree)
The court, however, determined that it was difficult to find a breach of the duty to manage hazardous and dangerous factors, given that S Construction had established and conducted a risk assessment procedure under the Occupational Safety and Health Act and had received reports of the results.
The court recognized that S Construction had thoroughly conducted backfilling training and supervision through the construction specifications, the safety management plan, and the risk assessment.
The court also found that, even if some breaches of duty were recognized, there was no causal relationship or foreseeability between those breaches and the accident.
Because the accident occurred at a time when the victim had gone to retrieve a tool unrelated to the work, it was a difficult-to-foresee accident arising from a concurrence of unusual conduct by the subcontractor and the victim. Accordingly, the court determined that “criminal liability under the Serious Accidents Punishment Act is not established by a mere breach of duty; rather, that breach of duty must have a substantial causal relationship with the occurrence of the serious accident, and whether the accident could have been foreseen at the time must also be taken into account.”
Issue 2. Distinguishing the Party With Actual Authority to Direct and Manage Between the Primary Contractor and the Subcontractor
One of the most frequent issues under the Serious Accidents Punishment Act is the question of who is “the party that bears the duty to secure safety and health.”
In this case, the court focused on the fact that the party that directly directed the work and determined the work method was the subcontractor.
The court confirmed that S Construction had subcontracted the work in question to the subcontractor and that the persons who directly carried out the work at the time of the accident were the subcontractor's work foreman and the victim.
The court also took into account that the primary contractor's site manager was not present at the site at the time of the work and that, at a prior meeting, he had emphasized “compliance with the work sequence when installing and dismantling temporary structures according to the excavation depth.”
Accordingly, the court determined that “the business operator with the duty to direct the work and to take safety measures was the subcontractor, and the primary contractor bore no direct responsibility for directing or managing this accident.”
Issue 3. The Requirements for Establishing a Violation of the Occupational Safety and Health Act and Occupational Negligence Causing Death
The prosecution also applied charges of a violation of the 🔗Occupational Safety and Health Act and occupational negligence causing death to the primary contractor's site manager, but the court did not recognize them and rendered an acquittal.
Under Supreme Court precedent (Supreme Court, Decision of September 29, 2011, 2009 Do 12515), for a violation under the Occupational Safety and Health Act to be established, not mere negligence, but intent, including conditional intent (dolus eventualis), to tolerate or leave unaddressed the failure to take safety measures, is required.
The court determined that there was no foreseeability of the accident or intent to leave it unaddressed, on the basis that the primary contractor had documented appropriate preventive measures through the construction specifications, the safety management plan, and the risk assessment report and had provided training on these to the subcontractor.
In the end, the direct cause of the fatal accident was the subcontractor's deficient management, namely removing the earth-retaining shoring without backfilling and allowing workers to enter the work site without controls.
3. The Significance and Implications of the Serious Accidents Punishment Act Judgment
This judgment on whether the Serious Accidents Punishment Act was violated is the first case to clearly separate the criminal liability of the primary contractor and the subcontractor.
In many prior judgments, the primary contractor and the subcontractor were found guilty, or not guilty, alike.
In particular, in prior acquittal cases, the courts identified the principal grounds as the construction amount falling below the threshold or the absence of foreseeability of the accident. In this case, however, the court rendered an acquittal by recognizing that the primary contractor's business operator had fulfilled its duties.
This can be viewed as a judgment that reaffirms the principle of liability based on fault under the Serious Accidents Punishment Act and that checks the practice of imposing criminal liability approaching strict liability merely because a party is the primary contractor.
The court also made clear that, within a subcontracting structure, it is legally unreasonable to hold the prime contractor criminally liable even in cases where the subcontractor's deficient safety and health measures are the direct cause of an accident.
The labor sector's opposition, however, has been considerable.
In an interview, the Korean Confederation of Trade Unions criticized the decision as a judgment “contrary to the legislative purpose of the Serious Accidents Punishment Act” and as one that diminishes the effectiveness of preventing industrial accidents.
Serious Accidents Punishment Act Cases, Daeryun's Strategy
This judgment serves as a case showing that the criminal liability of a “responsible managing officer” under the Serious Accidents Punishment Act may not be established by the occurrence of an accident alone.
For criminal liability to be recognized against a business operator and others in an industrial accident, the following requirements must be satisfied.
▶A breach of that duty
▶A substantial causal relationship between that breach and the accident
▶Foreseeability of the accident
Accordingly, in preparation for cases similar to those under the Serious Accidents Punishment Act, companies should conduct the following advance reviews.
▶Effectively establishing a risk assessment and safety management plan and a reporting system
▶Building a documented inspection system for the performance of duties by the safety and health manager
▶Recording and securing evidence of the content of prior safety meetings and training
At Daeryun Law Firm LLP, 🔗attorneys handling serious accident matters provide legal services such as advisory work on responding to the Serious Accidents Punishment Act, reviewing the duties of responsible managing officers, establishing risk assessment procedures, responding to investigations and trials, and designing safety management systems, and, drawing on extensive practical experience in criminal litigation arising from industrial accidents, they support companies in minimizing their risks.
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