산업안전보건법상 건설공사발주자 개념의 해석에 관한 쟁점과 해석방향

Abstract

This study examined the interpretation standards of the Ministry of Employment and Labor and the courts on how to interpret the regulations defining the construction project owner under the Occupational Safety and Health Act. However, there were certain limitations in the interpretation standards of the Ministry of Labor and the courts. Therefore, this study looked for a solution in the way the definition of construction project owner is expressed in the Occupational Safety and Health Act. As a result, the construction project owner was defined as a a phenomenal concept, but in other aspects, it was defined in the form of ‘normative status’ and ‘expected role’, and based on this, ‘a person who leads and manages the construction of a construction project’ can be interpreted as ‘a person in a position to lead and manage the construction of a construction project’. After reviewing the meaning of ‘a person who leads, supervises, and manages construction’, it is understood to be ‘a business owner who has the ability or obligation to supervise and coordinate the overall process of construction’. However, it is important to be cautious in evaluating the unique supervision and leading safety measures of the owner among the various acts of a the construction project owner as leading and managing construction. The following five criteria are proposed for evaluating a person as ‘a person in a position to lead, supervise, and manage the construction of a construction project’. First, the construction work must be part of the the construction project owner business so that it can be assessed as contracted work. Second, the work must be the main business or inseparable from the main business and must be supervised and managed by the construction project owner. And the construction project owner's expertise must be recognized. Third, the construction project owner must have a technological advantage or the need for supervision for security. Fourth, whether there is a possibility of danger to workers belonging to the construction project owner. Finally, it is necessary to evaluate whether the contractor does not have the capacity to lead, supervise, and manage the construction.