RECENT DEVELOPMENTS ON SERIOUS ACCIDENTS PUNISHMENT ACT (“SAPA”)

On April 26, 2023, the Masan Branch of Changwon District Court (“Trial Court”) issued a verdict regarding a fatal accident that occurred in March 2022 (the “Accident”), and it is the second verdict issued by a Korean court for a violation of the SAPA (“Second Decision”). The case involved the representative director of a steel manufacturer (“Defendant”) who was accused of violating the SAPA. As a result of the verdict, the representative director was sentenced to imprisonment.

I. FACTUAL BACKGROUND

A. Overview of Accident

A general contractor (the “Steel Manufacturer”) contracted a subcontractor to repair a metal heatsink weighing over 1.2 tons at its factory site. While the subcontractor's employee was conducting the repairs, the heatsink fell, resulting in the employee's death. Upon investigation, it was discovered that the safety belt used by the employee did not have the proper measures to prevent such an accident.

B. Summary of Charges

After an initial investigation into the accident, the public prosecutor filed an indictment against several defendants for causing death by negligence in the workplace under the Korean Occupational Safety and Health Act (“OSHA”) and the Korean Criminal Code (“Criminal Code”) as well as the SAPA. Among the defendants, the representative director of the Steel Manufacturer was indicted on all three charges. The prosecutor determined that the Defendant was the ‘Safety Manager’ under the SAPA and charged the Defendant with violating the SAPA by not establishing nor implementing safety measures for subcontractors, which was deemed to cause the fatal accident.

The representative director of the subcontractor who employed the victim was charged with violating the Criminal Code and the OSHA but not the SAPA because the SAPA is currently inapplicable against small-sized businesses. However, the SAPA will apply to small-sized businesses starting January 2024.

C. Verdict

1. Summary of Judgment

The first decision by a Korean court regarding the SAPA violation in a different case (the “First Decision”) was announced on April 6, 2023 where the defendants admitted to all indicted facts. This was followed by the Second Decision where the court found the Defendant guilty of all indicted charges, and sentenced him to a one-year imprisonment.

2. Violation of SAPA Obligations and Causation

The Trial Court acknowledged that there was causation between representative director’s violation of SAPA obligations to prepare standards to assess work performance of a responsible safety and health manager (which led to failure to undertake required safety and health measures to prevent accidents) and subsequent death resulting from the Accident.

3. Factors Considered in Actual Sentencing

In its sentencing, the Trial Court first noted that the Defendant had a number of similar criminal records (including a sentence of criminal fine for a different industrial accident under OSHA in May 2021, before SAPA became effective).

While the Defendant requested for leniency in consideration of the short time between the enforcement of SAPA from late January 2022 and the occurrence of the Accident, the Trial Court rejected such request, stating that (a) there was a grace period of one year to prepare for SAPA compliance after the National Assembly legislated SAPA, and (b) during the grace period, a different industrial accident had occurred at the Steel Manufacturer’s site.

II. ANALYSIS AND IMPLICATION

A. Trial Court’s Assessment of SAPA Violation

Like the First Decision, the Second Decision did not offer specific guidance on how Korean courts would handle various contentious issues related to the correct interpretation of SAPA. This includes questions such as what constitutes a violation of SAPA obligations and how to establish a causal relationship between SAPA violations and accidents.

In this case, the Trial Court determined that there was a violation of SAPA because the Defendant did not fulfill any legal obligations under the SAPA as well as Defendant’s admissions regarding such violations of the SAPA and the connection between such violations and the resulting death.

Although the Trial Court's decision indicates that the general contractor is considered the ‘Safety Manager’ under the SAPA, this interpretation of the relevant SAPA provisions may be subject to debate. Therefore, further court rulings would be needed to gain a more precise understanding of the court's analytical approach.

B. Assessment of Actual Sentencing

According to the Second Decision, prior criminal records of OSHA violations would have serious detrimental effects on the sentencing imposed on a Safety Manager in connection with the SAPA violation. As such, due care should be given to ensure to establish and implement safety measures for subcontractors in accordance with SAPA. To avoid possible accusations of SAPA violations, it is important to conduct compliance checks across all workplaces, including those where subcontractors perform work under a contract.

Lastly, it is crucial to conduct a thorough review of the safety measures in an organization. The Second Decision highlights that if an individual is designated as the Safety Manager both under the SAPA and the OSHA, and there is a fatal industrial accident, that person may face multiple charges for causing death due to negligence. This could result in severe penalties, including imprisonment, upon conviction.

For any additional information or questions concerning SAPA issues, please reach out to the BKL SAPA Response Team ([email protected]) or your BKL contact professional.

Jinhan Lee

T 82.2.3404.0179

E. [email protected]

Seongsoo Kim

T 82.2.3404.0673

E. [email protected]

Jinwook Song

T 82.2.3404.0462

E [email protected]

Wookrae Lee

T 82.2.3404.0684

E [email protected]