산업안전보건법상 양벌규정에 의한 사업주와 행위자의 처벌Punishment of Business Owner and Perpetrator under the Joint Punishment Provisions of the Korean Industrial Safety and Health Act
- Other Titles
- Punishment of Business Owner and Perpetrator under the Joint Punishment Provisions of the Korean Industrial Safety and Health Act
- Authors
- 이주원
- Issue Date
- 2008
- Publisher
- 고려대학교 법학연구원
- Keywords
- Industrial Safety and Health; Korean Industrial Safety and Health Act; business owner; perpetrator; negligence in supervision; The Joint Punishment Provision; exemption provision; 산업안전보건; 산업안전보건법; 사업주; 행위자; 선임감독상의 과실; 양벌규정; 면책조항
- Citation
- 고려법학, no.51, pp.285 - 325
- Indexed
- KCI
OTHER
- Journal Title
- 고려법학
- Number
- 51
- Start Page
- 285
- End Page
- 325
- URI
- https://scholar.korea.ac.kr/handle/2021.sw.korea/134893
- ISSN
- 1598-1584
- Abstract
- The Korean Industrial Safety and Health Act(“KISHA”, hereinafter),
for the purpose of preventing industrial disasters, imposes on business
owners the duties to implement various safety and health measures
and enforces them through the penalties for non-compliance. In
addition, KISHA provides for joint punishment for the business owners.
In light of the legislative purpose and the text of the statute, a line of
precedents subjugating a non-business-owner actor to the joint punishment
is understandable. Also, it is understandable to find the basis
for punishing the business owner in its negligence in supervision.
However, a line of precedents interpreting the joint punishment provisions
as setting up a presumption of negligence and thereby shifting
the burden of proving lack of negligence over to the business owner
must be reexamined in light of the principle of presumed innocence
and in dubio pro reo. If an individual business owner is the perpetrator
himself/herself, the basis for jointly punishing the business owner is
the criminal liability for his/her own act and is the case for punishing
the perpetrator. However, identifying the perpetrator is difficult, and
also pursuant to the general principles of criminal law, the perpetrator
can be punished only for intentional act not for negligent ones. On the other hand, it is not only very unnatural in terms of legislative
phraseology but also legislative non-preparedness under the requirement
that the elements of a crime be clear, to allow punishing the
non-business-owner perpetrator under the incomplete phrase ‘other
than punishing the perpetrator’ when only the business owner is the
duty-holder under KISHA. In order to provide joint punishment for a
non-duty-holder perpetrator, the joint punishment provisions must
specifically state so.
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