Severe injuries and deaths in industrial accidents occur constantly. According to KBS, the death toll from industrial accidents averaged nearly two per day in the first half of 2021. Because of this situation, the ‘Severe Accident Punishment Act’ was passed by the National Assembly on January 8th, 2021. The purpose was to construct a safe labor environment by strengthening the punishment of severe accidents, as there have been voices saying the level of punishment is weak for industrial accidents. However, there were criticisms of insufficiency about the act and the government pre-announced legislation titled Enforcement Decree of the Severe Accident Punishment Act on July 9th, 2021. Nonetheless, people are claiming that the enforcement decree was prepared without resolving any of the criticisms about the initial Act. Both business and labor communities are expressing dissatisfaction about the enforcement decree. Then what is the content of the Severe Accident Punishment Act and its Enforcement Decree and what criticisms do they have ahead of the implementation in January 2022? Let’s find out in detail.
What is the ‘Severe Accident Punishment Act’?
Severe Accident and the Punishment
‘Severe Accident Punishment Act’ is an Act that punishes business owners and chief executives when ‘severe industrial accidents’ or ‘severe civil accidents’ occur. ‘Severe industrial accident’ means accidents with more than one fatality, accidents with more than two injuries that need at least six months of treatment, and accidents with more than three people with occupational diseases like acute poisoning within a year. ‘Severe civil accident’ means accidents with more than one fatality, accidents with more than ten injuries that need at least two months of treatment. It also means accidents with more than ten people that need at least three months of treatment due to defects in design, manufacture, installation, management of public facilities, public transportation, or raw materials and products. The ‘Daegu Subway Fire Tragedy’ that happened due to defects in design, installation, and management of public facilities or public transportation is an example of a severe civil accident. When these severe accidents happen, business owners and chief executives are punished in the case where they violate the obligation to secure safety and health care of the workers. Whereas the ‘Occupational Safety and Health Act’ is subject to business owners, which is similar at the point where it aims to solve industrial accident problems, ‘Severe Accident Punishment Act’ is subject to both business owners and chief executives. This makes an important difference between the two Acts because it is much easier to punish CEOs. When statutory punishment is demanded, at least one year of imprisonment or a fine of at least one billion won is imposed. Also, dual liability exists, which states imposition of fine of up to five billion won when a fatality occurs, or up to one billion won when injuries and diseases occur by punishing corporations as well as individuals. In addition, exemplary damages exist which specifies compensation within five times the amount of damages when accidents occur due to business owners’ and chief executives’ gross negligence.
The Obligation to Secure Safety and Health Care
As mentioned earlier, business owners and chief executives get punished in cases where they violate their obligation to secure safety and health care. Then what is the obligation to secure safety and health care? Article 4 of the Act states this: First business owners and chief executives should establish and implement a safety and health management system to prevent disasters. Second, in the event of a disaster, measures should be established and implemented to prevent the recurrence of equivalent disasters. Third, if the central administrative agency and local governments order the improvement or rectification of certain matters based on the relevant legislation, business owners and chief executives should implement them. And fourth, business owners and chief executives should implement the management measures if they are required to fulfill the safety and health-related legislations. Meanwhile, the first and fourth details above are set by the presidential decree. So, Articles 4 and 5 of the Enforcement Decree of the Severe Accident Punishment Act state the details of the first and fourth mentioned above, respectively. However, it was criticized for using several unclear expressions such as “fulfill the safety and health affairs ‘faithfully’” in Article 4 no.3, “organize ‘appropriate’ budgets” in Article 4 no.4, and “’appropriate’ safety and health management costs and performance period” in Article 4 no.8.
The Purpose and Process of Legislation
The Severe Accident Punishment Act was enacted with the goal of reducing the occurrence of industrial disasters and establishing a safe working environment by strengthening punishment for business owners and chief executives in the event of industrial disasters. Until now, even if a severe accident occurs, the level of punishment has been weak, and the industrial site has fallen back into safety insensitivity soon after. However, if the Act is enacted, it will raise their awareness of severe accidents and therefore, help to prevent them. Furthermore, the prevention of severe accidents results in the protection of the lives and bodies of many business workers and citizens. It is also meaningful that it reflected the social flow of viewing severe accidents as the "responsibility" of business owners and chief executives. It means that severe accidents do not occur due to workers’ illegal acts, and rather as “corporate crimes resulting from management failures”, they should be held responsible to business owners and chief executives. This Act took its first step in June 2020, through the representative proposal of a bill on punishment for severe accidents by Kang Eun-mi, a member of the Justice Party. On January 7th, the bill passed the evaluation of the National Assembly of the Republic of Korea Legislation & Judiciary Committee’s subcommittee, and on the 8th, the ‘Severe Accident Punishment Act’ passed the National Assembly. The Act was enacted through this process, but many criticisms were presented. In response, the government pre-announced legislation of Enforcement Decree of the Severe Accident Punishment Act on July 9th, 2021. The Act will be implemented in earnest on January 27th, 2022.
Controversies over the Act and Enforcement Decree
The Range of Occupational Diseases
One condition to consider when a severe accident occurs due to a violation of the obligation of business owners and chief executives is "whether a certain number of occupational diseases have occurred." Then, what is an ‘occupational disease’? The enforcement decree, which was announced in July 2021, specifically defined 24 occupational diseases that could be caused by severe industrial accidents. Conditions to be included in occupational diseases are first required to be acute, such as occurring from three or more people within a year, second to have clear causal relationships, and third to have a high possibility of prevention by business owners and chief executives. The enforcement decree states acute addiction caused by exposure to carbon monoxide and lead, hepatitis B, syphilis, oxygen deficiency, brucellosis, legionella, and heatstroke as occupational diseases. However, the business community and the labor community are discontent over the range of these occupational diseases. The business community’s position is that the range of the disease is too wide and its standards are unclear. They argue that the possibility of business owners and chief executives being punished is too high as heatstroke, a relatively common illness is included as an ‘occupational disease’. They also assert that certain standards are needed for severe illness. For example, they say that it should be regarded as an occupational disease only if it meets the standard of "needing more than six months of treatment." The labor community, on the other hand, points out that some of the main diseases are not included in the range. In particular, brain cardiovascular disease and muscular-skeletal disease are representative causes of death from overwork. However, neither of these diseases was stated in the enforcement decree. This was due to the judgment that these diseases can be sufficiently occurred by personal reasons other than work. In fact, the Korean Confederation of Trade Unions expressed its dissatisfaction, saying, “We have asked for the inclusion of diseases that could cause deaths from overwork several times, but they have been excluded."
Could the Severe Accident Punishment Act Apply in Reality?
As the Severe Accident Punishment Act has been enacted, some questioned whether the Act would have any actual impact. In fact, we can predict whether the law will be practically applicable to cases that will occur in the future, by judging the applications of events that occurred prior to enactment. In May 2021, a subcontracting worker fell and died while working on an outer wall at a construction site in Gimpo, Gyeonggi Province. However, the Severe Accident Punishment Act cannot be applied to this case. This is because the Act only targets places where construction costs exceed 5 billion won. In this case, the construction cost is 3.3 billion won, so the business owner and the chief executive cannot be punished under the Act. According to KBS News on July 27th, 2021, 341 incidences of death occurred at workplaces in the first half of 2021. 182 cases were in the construction industry, and only 63 cases were on sites where the construction cost exceeded 5 billion won. In the end, in only one-third of the cases can the Severe Accident Punishment Act be applied. In addition, the Act only applies to those with more than 50 workers in the manufacturing industry. Of the 159 incidences of death that occurred, only one-third had more than 50 workers. In conclusion, two out of three businesses where industrial accidents occur are not subject to the Severe Accident Punishment Act and can avoid punishment. Because of this, criticism has been raised that “the Severe Accident Punishment Act is difficult to apply to severe industrial accidents” by OhmyNews.
Constitutional discussion about the Act and Enforcement Decree
Besides, there are controversies over unconstitutionality. As mentioned earlier, the Act stipulates that a person in charge of management should be punished with imprisonment of more than one year and less than 30 years. It also includes additional punishment for recidivism within five years after the sentence is confirmed. So, the maximum imprisonment can be sentenced up to 45 years (30 years*150%). However, the important thing is that our Criminal Act stipulates a crime of professional negligence resulting in injury and death. Article 268 of the Criminal Act states that a person who causes death or injury due to professional negligence or serious negligence shall be sentenced to imprisonment for up to five years or a fine of up to 20 million won. Eventually, the maximum sentence of 30 years of the Severe Accident Punishment Act is six times higher than the maximum sentence of a crime of professional negligence resulting in injury and death that is prescribed by the Criminal Act. In fact, about this, former chief prosecutor Song In-taek pointed out, "We can see that the Severe Accident Punishment Act stating the punishment of up to 30 years in prison, which is six times higher than the crime of professional negligence resulting in injury and death, as a violation of the rule of equality and principle of proportionality in the Constitution.”
In addition, Article 12 of our Constitution states that "No person shall be arrested, restrained, seized, searched, or interrogated without law, and shall not be punished, disposed of security measures and compulsory labor without law and due process.” This is a regulation that specifies the so-called 'principle of legality'. As the Act imposes a significant penalty on the chief executive in the event of a severe accident, the need for the application of the principle of legality is even greater. However, the important point is that the Act delegates its enforcement decree without specifying the obligation of chief executives and the type of occupational diseases recognized as severe industrial accidents. Then, does the enforcement decree clearly stipulate this? Regarding the enforcement decree, many people point out that among the duties that chief executives should take, the contents of the safety and health management system and the legislations are unclear. In the regulations on the health and safety management system of the enforcement decree, ambiguous phrases such as "faithfully," "appropriate," and "enough" were used. It also stated "safety and health-related legislation" but did not specify exactly what was meant by this. In fact, at the emergency countermeasure meeting on the Enforcement Decree of the Severe Accident Punishment Act, which was held by Korea Enterprises Federation, an official pointed out, “The obligation of chief executives, which was vague under the law, is very unclear even in the enforcement decree, so it is not known to what extent the obligation must be fulfilled to be recognized as compliance with the law."
As such, the Severe Accident Punishment Act was enacted with the intention of reducing the occurrence of industrial accidents. However, there has been much criticism in the content, and many have pointed out that the problem has not been solved even in the enforcement decree. In addition, the lack of various standards, and content issues that remain unsolved have created the possibility of unconstitutionality. In the situation where implementation is going to take place soon, the government needs to accept various criticisms setting clear standards and revising inappropriate content. Yeom In-seop, a lawyer from the Korea Specialty Contractors Association, said, “I hope the Act can be implemented supplementing the unconstitutional aspects as much as possible by collecting opinions from the construction industry and prosecuting subsequence supplementary legislation in the legislative preliminary period.” CAH hopes that the Severe Accident Punishment Act to be implemented safely with appropriate measures by the government by January 27th, 2022.