1.

Cases Where Violations of Both OSHA and SAPA Were Not Found

The cases indicated below are those in which no violations of the Occupational Safety and Health Act (the “OSHA”) were found on the grounds that either (i) there was no breach of the obligation to take safety and health measures under the OSHA, or (ii) it was difficult to conclude that business owners neglected such obligation while knowing that dangerous work was being carried out. In this type of cases, if the so-called “multi-layer causation doctrine” is applied – which states that causation between a violation of the SAPA and an accident can be recognized through a violation of the OSHA – it is likely that a violation of the SAPA will not be recognized unless special circumstances exist. Therefore, when an accident occurs due to an unusual work method or behavior, it is essential to closely identify the underlying causes of the accident from the outset and examine whether there is a breach of the obligation to take relevant safety and health measures:
 

(1)

Incident in which a worker became entrapped in a machine at a plastic container manufacturing plant (non-indictment by the PO)

This accident involved a subcontractor’s worker who was working at a plastic container manufacturing plant. After an object became lodged in an injection molding machine, the worker entered the machine to remove it. To confirm whether the machine was functioning normally, the worker then requested a colleague to operate it. Unfortunately, the worker inside the machine became entrapped and died as a result. The primary issue in this case was whether the worker adhered to proper operational procedures while working inside the injection molding machine.

The PO found that there was a breach of the obligation to take certain safety measures related to the safety devices for the injection molding machine. However, considering that the accident occurred due to the unusual work methods of the worker, who did not adhere to standard working procedures, the PO deemed it difficult to conclude that the company, though aware, anticipated such dangerous work or neglected its safety obligations, and found that there was no violation of the OSHA. Moreover, as it was difficult to establish multi-layer causation because of the lack of an OSHA violation, the PO ultimately reached the conclusion that there were no grounds for indictment.
 

(2)

Incident in which a worker slipped while unloading at a delivery terminal (closed upon the Labor Office’s internal investigation)

In this case, a driver (a subcontractor’s employee) slipped on the floor at a delivery terminal and was killed while attempting to close the back door of a cargo box after unloading goods. The main issues in this case were (a) whether the location of the accident was a “place of business” that required safety measures to be implemented, and (b) whether a causal relationship could be established between the accident and the alleged breach of the obligation to take those safety measures.

The Labor Office concluded that it was difficult to conclude that a breach of the obligation to take safety measures had taken place, given the location and circumstances surrounding the accident. The Labor Office further concluded that even if some violations were found, establishing a causal relationship with the accident would be challenging. Consequently, the Labor Office dismissed the alleged violation of the OSHA and closed its internal investigation. Regarding the SAPA, the Labor Office found no violation of the SAPA because: (a) the obligation to ensure safety and health under the SAPA was faithfully fulfilled, and (b) as long as no violation of the OSHA was found, it would be difficult to establish a causal relationship between the accident and any alleged violation of the SAPA.
 

(3)

Incident in which a worker was stuck under medical equipment during maintenance and repair work at a large hospital (closed upon the Labor Office’s internal investigation)

This case involved the death of a subcontractor’s employee who was working on the maintenance and repair of Computed Tomography (“CT”) equipment at a large hospital. The main issue in this case was whether the victim adhered to the standard work procedures while performing the maintenance and repair work.

The Labor Office concluded that the accident occurred due to the victim’s unusual work methods, which did not comply with standard operating procedures. Additionally, it found that the applicable safety obligations were unclear, and that the company could not have reasonably anticipated such dangerous work. As a result, the Labor Office dismissed the alleged OSHA violations and concluded its internal investigation. Since a violation of the OSHA was not found, the investigation of a potential violation of the SAPA was closed without further inquiry.
 

(4)

Electric shock incident while an employee was working on the plumbing of a plant (closed upon the Labor Office’s internal investigation)

This accident involved a subcontractor’s employee who was fatally electrocuted while installing piping components at a new factory construction site after coming into contact with a severed wire. The main issues in this case were, among others, (a) whether the company (the subcontractor) fulfilled its safety obligations related to electrocution prevention, and (b) whether a causal relationship could be established between the accident and any violation of these safety obligations.

The Labor Office determined it was difficult to conclude that the company was required to implement safety measures to prevent electrocution in anticipation of the wire being severed. The Labor Office also concluded that even if some violations were found, it would be difficult to establish a causal relationship with the accident. Therefore, it did not find any violations of the OSHA and closed the investigation. As no violation of the OSHA was found, the case was closed without further investigation into potential violations of the SAPA.
 

(5)

Incident in which a worker fell from a rough opening at a building construction site (closed upon the Labor Office’s internal investigation)

In this case, a subcontractor’s employee who was cleaning up tools at a building construction site fell from a rough opening and died. The main issue was whether the contractor breached its obligation to take safety measures to prevent falls from the rough opening.

The Labor Office concluded that the subcontractor constructed the rough opening where the accident occurred without the contractor’s permission, and it is difficult to find that the contractor neglected its obligation to take safety measures despite being aware of the risk of falling. As such, the Labor Office did not find a violation of the OSHA and closed the internal investigation. Since no violation of the OSHA was found, the case was closed without further investigation into violations of the SAPA.
 

(6)

Incident in which a worker fell while salvaging scaffolds at an apartment construction site (closed upon the Labor Office’s internal investigation)

This case involved the death of a subcontractor’s employee who fell while salvaging scaffolds at an apartment construction site. The issue was whether the contractor had breached its obligation to take safety measures.

The Labor Office concluded that the accident occurred because a colleague mistakenly hung the tower crane rope on another scaffold that was not the one intended for lifting, and that it was difficult for the contractor to foresee such dangerous work. Accordingly, the Labor Office did not find a violation of the OSHA and closed the internal investigation. Without having found a violation of the OSHA, the case was closed without further investigation into violations of the SAPA.
 

2.

Cases Where De Facto Control, Operation or Management Requirements Under SAPA Were Not Satisfied

In many serious industrial accidents, issues arise as to whether a company qualifies as a “Construction Project Owner” as defined under the OSHA. The OSHA stipulates that a “Construction Project Owner” refers to an entity that awards a contract for construction work but does not take the lead in supervising and managing the execution of that work. Accordingly, the obligation to implement safety and health measures is imposed only on the contractor, based on the premise that a Construction Project Owner and a contractor have distinct responsibilities. In general, Construction Project Owners do not bear liability under Articles 4 and 5 of the SAPA unless special circumstances exist that would deem them to have de facto control, operation or management over relevant work, facilities, equipment and locations. Therefore, in cases where the designation of a company as a Construction Project Owner is at issue, it is essential to closely examine and assess whether the company can be deemed responsible for de facto control, operation or management in light of the overall circumstances:
 

(1)

Electric shock incident while an employee was working on the plumbing of a plant (closed upon the Labor Office’s internal investigation)

In this case, a subcontractor’s employee who was working on the installation of plumbing components at a plant was electrocuted by a severed wire and died. One of the main issues was whether the principal company that placed the order for construction work should be deemed a Construction Project Owner or a contractor under the OSHA.

The Labor Office recognized the principal company as a Construction Project Owner on the grounds that it was difficult to conclude that the plumbing installation work was essential to the maintenance or operation of the company site or that it constituted a part of the company’s business. In addition, it was difficult to conclude that the principal company led, supervised or managed the construction work, given the size and expertise of the principal company and its subcontractor. Accordingly, the Labor Office found no violation of the OSHA by the principal company because the company, as a Construction Project Owner, was not obligated to take certain safety and health measures related to the accident. The Labor Office also did not find a violation of the SAPA because the principal company, as a Construction Project Owner, did not have responsibility for de facto control, operation or management over the construction work.
 

(2)

Incident involving acute poisoning during waste transportation at a cement manufacturing plant (closed upon the Labor Office’s internal investigation)

In this case, an employee of a waste transporter died from hydrogen sulfide poisoning at a waste treatment facility in a cement manufacturing plant while unloading wastes generated outside. The main issue was whether the cement company was responsible for de facto control, operation or management over the waste transporter’s employee.

Considering, among other things, that there was no contractual relationship between the cement company and the waste transporter (i.e., a third party waste generator contracted the waste transporter to transport its wastes, and the cement company signed an agreement with the third party waste generator to treat the transported wastes), the Labor Office found that the cement company did not have de facto control, operation or management over the waste transporter’s employee. The Labor Office concluded that there was no violation of the SAPA.
 

(3)

Incident involving the death of a third party individual who accompanied a delivery man during his delivery services (closed upon the Labor Office’s internal investigation)

In this case, an acquaintance of a delivery man who had a contract with a branch of a delivery company died as a result of a sudden deterioration in health while riding in the delivery man’s vehicle. The main issue was whether the delivery company was responsible for de facto control, operation or management over the delivery vehicle and the accident.

The Labor Office concluded that the company, as a contractor, could not be held liable for violations of the OSHA or SAPA on the grounds that the delivery vehicle and delivery destinations were entirely managed by the delivery man, and that the delivery company could not be deemed responsible for de facto control, operation or management over the vehicle and destinations.
 

3.

Cases Where Violations of Duty to Ensure Safety and Health Under SAPA Were Not Found

In cases where the SAPA is found to be applicable, it is crucial for the Responsible Management Personnel (“RMP”) to demonstrate that they have faithfully fulfilled their obligation to ensure safety and health as set forth under the SAPA. The following cases are examples in which companies successfully defended that they faithfully fulfilled their obligation to ensure safety and health, as set forth under the SAPA, leading to findings of no SAPA violations. In these types of cases, it is necessary to carefully analyze the details pertaining to the obligation to ensure safety and health, as well as the purpose of requesting the performance of such an obligation, and to fully explain that the company has substantively implemented the obligation:
 

(1)

Electric shock incident in a high-pressure water substation at a resort (non-indictment by the PO)

This case involved the death of a subcontractor’s employee due to an electric shock in an outdoor high-pressure water substation at a resort. The main issue was whether the RMP complied with the following obligations: (a) the obligation to prepare procedures for identifying and mitigating hazards and risk factors, (b) the obligation to prepare procedures for gathering opinions from workers, and (c) the obligation to prepare standards and procedures for safety and health assessments in cases of subcontracting, entrustment or outsourcing.

The PO found that the company did not violate the SAPA based on the following grounds: (a) the company established “Risk Assessment Procedures” to identify and mitigate hazards and risk factors and conducted regular risk assessments, (b) the company formed and convened the “Safety and Health Consultation Committee” at least once a month as a process for gathering opinions from workers, and (c) the company established and adhered to relevant regulations regarding standards and procedures for safety and health assessments in cases of subcontracting, entrustment or outsourcing.^[1]
 

(2)

Fire incident in an underground parking lot of a large outlet (non-indictment by the PO)

In this case, a fire broke out in the underground parking lot of a large outlet, resulting in the deaths of several subcontractor employees. The main issue was whether the company faithfully performed the following obligations: (a) the obligation to prepare standards for evaluating safety and health managers and to conduct evaluations based on the established standards, (b) the obligation to prepare and inspect procedures for gathering opinions from workers, (c) the obligation to prepare and inspect emergency response manuals, and (d) the obligation to inspect compliance with safety and health-related regulations.

Finding that the company complied with its obligation to ensure safety and health under the SAPA, the PO concluded that there was no SAPA violation. In particular, the PO based its determination on the following grounds: (a) a system for evaluating places of business on a quarterly basis existed, (b) the Occupational Safety and Health Committee, the Safety and Health Council and the safety proposal channel were in place, (c) an emergency management manual, emergency response guidelines and guidelines for responding to fires in parking lots existed, and (d) the company inspected the safety and health status of its places of business on a quarterly basis.