업무상과실치사상죄의 ‘업무상주의의무’ 판단 경향의 검토 - 산업재해 영역에서 산업안전보건법과의 관계를 중심으로 - = A Review of the Evaluation Criteria for Occupational due diligence in Death and Injury by Occupational Negligence

다국어 초록 (Multilingual Abstract)

A Review of the Evaluation Criteria for Occupational due diligence in Death and Injury by Occupational Negligence
With a Focus on the Relationship with the Occupational Safety and Health Act in the Area of Industrial Accident
The crime of gross negligence manslaughter and personal injury in the workplace has maintained the same element(“actus reus”) since the enactment of the criminal law to the present day, but its role in major industrial accidents and disasters has been rediscovered as risk management has emerged as an important issue in criminal law in the context of a highly specialized society. The provision stipulates imprisonment of fewer than five years as a statutory sentence and does not have an offense unpunishable over objection (meaning a crime which shall not be prosecuted over an express objection of the victim) provision, making the punishment heavy, but broadly recognizes the meaning, requirements, and grounds for the establishment of occupational due diligence. It is important to be wary of making sure that negligence offenders’ crimes are not extended to taking responsibility for consequences.
Meanwhile, the areas to which the crime is applied are highly specialized spheres such as transportation, medical care, and manufacturing. Due to the nature of the fields requiring active administrative control by the state, enforcement regulations under the administrative law are in place in each area. Violations of regulations are considered to be occupational negligence in themselves and satisfy the requirements of the crime mentioned above, and if a separate punishment is imposed, they may be in contentious relations with the crime. As the disciplinary laws and regulations in the same field overlap, it is important to establish the relationship.
This paper examines the area of industrial accident. If the intervention of a large number of participants in a large and specialized facility causes the consequences of death of workers, this will be a violation of both the Occupational Safety and Health Act and the crime of gross negligence manslaughter and personal injury in the workplace.
Some court rulings (i) acknowledge occupational negligence immediately in the case of violating the Rules for Occupational Safety and Health Standards; or (ii) expand the scope of due diligence without clear evidence even in the case of no illegal breach of the Occupational Safety and Health Act and understand the above crime as a supplementary punishment to the violation of the Occupational Safety and Health Act. As a person who is obligated to take safety measures, it is difficult to exercise the right to defend, and inevitably has an insecure position due to the unclear scope of crime for the above-mentioned crime.
Taking into consideration of the supplementary and the last resort nature of the criminal law and following the principle that the crime must be punished based on clear evidence, the interpretation of the requirements and the application of negligence crime should be carried out formally so that it would not result in liability for consequences. This principle should also be maintained in the process of establishing a role between intentional crimes and negligent crimes when it comes to gross negligence manslaughter and personal injury in the workplace, and between criminal law and administrative legislation.