중대재해처벌법상 도급관계에서 안전보건 확보의무 이행 주체에 관한 소고

Abstract

There has been accusation that regulations about OSHA(Obligations to ensure Safety and Health Act) for the related subcontractors in SAPA (Serious Accidents Punishments Acts) don't conform with the ‘Principle of Legality’ because of their ambiguity. It's crucial to clarify the content of OSHA for the subcontractors and the subjects implementing. First, the collision and duplication of implementing duty between head contractor and subcontractors. There are opinions that the regulations don't conform with the ‘Principle of Legality’ for not clarifying the implementing subject. To decide whether the condition has clarification or not should be followed by considering rational interpretation could be possible according to the purpose of legislation and related laws. It’s critical to get reasonable interpretation considering that both head Contractors and Subcontractors are subjects of OSHA, SAPA(only on serious industrial accidents) is special act of OSHA(needs to reconsider the relation of OSHA), the level and way of implementing duty depends on the scale and the specificity of each business. Though rational interpretation on Subjects and Content that implement duty seems feasible, systematization by revision of related law needs to be done to pursue more clarification. According to the legislation in major countries, the mutual cooperation of both head contractors and subcontractors is emphasized. Head contractors should provide safety information ahead, substantial safety education and confirm other safety measures. Clarifying the independence of each party; head contractors and subcontractors, Korean law stipulates the mutual cooperation and obligation of guidance and verification. When Subcontractors Manager try every effort to implement its own obligations of safety & health, also Head contractors Manager work on verification, the responsibility of Head contractors Manager about the accident happened to the Subcontractor worker needs to be absolved. When the Construction work order is placed, the Construction owner is hard to be considered as Head Contractor on SAPA. If Manufacturers place an order for machinery equipment or maintenance work, the manufacturer is expected to implement preferentially the obligation of Construction owner on OSHA. Stipulated law about the party who controls overall Construction and also being the Construction owner is crucial for the ‘Principle of legality'. SAPA has no separate regulations about the definition of actual control, operation and management ,therefore the interpretation is to be controversial. The obligation of actual ‘control’, ‘operation’, ‘management’ on facilities, equipment, place etc. needs to be interpreted widely (i)when providing facilities, equipment, place, etc. and controlling dangers without considering the opinion of subcontractors (ii) when the Head contractor is recognized as the subject having legal authority on the facilities, equipment, place, and also capable of managing and controlling dangers. However, to verify the judgment criteria, embodiment of SAPA enforcement decree should be done.