산업안전보건법상 양벌규정에 의한 사업주와 행위자의 처벌

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.