안전조치의무위반죄의 성립요건과 형사책임 -산업안전보건법 제23조를 중심으로- = Elements and Criminal Responsibility for Breach of Security Measures

다국어 초록 (Multilingual Abstract)

Occupation Safety and Health Acts regulates that business owner have a duty to prevent an industrial disaster and keep a safety & health of employee. This is various from general duty(Art. 5) to precautionary step(Sec. 4) on harmfulness danger. The breach of security measures belong to the latter. If the business owner is in breach the duty, the person will be sentenced to a maximum of five years in prison or 50 million won in fines according to penalty clause 67. And if the employee is dead, the person will be sentenced to maximum of seven years in prison or 100 million won in fines according to penalty clause 66-2. In this case, the basic elements of penalty clause is Art. 23 of the Act. But the Act regulates Art. 23 bigly and delegates a practical requirement of necessary measures on the basic elements to labor department decree. That is, owner`s duty is limited to compliance with technical regulation which is general and abstract. If the owner complies with technical regulation, the Supreme Court ruling show that the owner is punished in accordance with Art. 268 of Criminal Code not Art. 23 of the Act. In other words, the different standard of deliberate offence and negligence criminal is a technical regulation. I doubt if such a thing is of any practical use, such as the benefit and protection of the Act. And it is a question arises imbalance of penalty about judicial precedents of Supreme Court. For example, the business owner and president becomes more likely to be excluded from the actor of breach depending on criminal ability. In a number of respects, the Act is in need of reform. Such as, the owner`s duty changes employer of the Labor Standard Act and the behavior of duty changes a phased behavior. The owner is guilty of breach according to phased behavior. It may be summarized as follows. ① a simple violation of duty ― administrative penalty ② a repeatable violation of duty ― corrective measures and administrative punishment ③ an intentional violation of duty ― administrative punishment In this case, I think that the principle of legality harmonizes with benefit and protection of the Act. Therefore the approach to achieve the goal of the Act according to raise the penalty clause must be sublated. Also the employee will have to bear by same to token because of the prevention of industrial disaster. Of course the employee`s duty should be linked to differential (criminal) responsibility on the phased behavior.