Regrettable Serious Accidents Punishment Act That Seeks Harsher Punishment for Businesses

Businesses’ concerns are deepening by the day. This is because, following the National Assembly’s passage in rapid succession of the Commercial Act, the Monopoly Regulation and Fair Trade Act, the Trade Union Act, and the Employment Insurance Act for Special Employment Workers, lawmakers are now also pushing to enact the Serious Accidents Punishment Act (hereinafter, the “Serious Accidents Punishment Act”) in response to labor unions’ demands.

The Serious Accidents Punishment Act refers to a law whose core provision is that, when a worker is seriously injured or dies in the course of work, if it is found that safety management was inadequate, the employer will be subject to imprisonment or a fine.

The current bill has unreasonable aspects in two main respects.

First, the scope of those subject to punishment is not clear. With regard to the provision stating that a person with management responsibility shall be punished when he or she violates the duty to prevent hazards and risks or the duty to take safety and health measures, the specific scope is so broad and unclear that the targets of punishment may not be clearly defined.

Second, the bill presumes causation and punishes persons with management responsibility when a serious accident occurs. Under the current proposal, causation is presumed if there have been at least three violations of the duty to prevent hazards and risks during the five years before the accident, or if evidence related to the accident was destroyed or such destruction was ordered or aided. The business community points out that, in order for employers and persons with management responsibility to avoid punishment, they must prove their own lack of responsibility, which runs counter to the criminal law principle of the presumption of innocence and may impose an excessive burden on business managers. Despite the side effects that are expected, the political establishment appears intent on passing it as quickly as possible.

Looking at cases in advanced countries abroad, very few nations enforce a law like this Serious Accidents Punishment Act. Labor unions argue that legislation should be enacted using the UK’s Corporate Manslaughter Act as an example. However, its contents differ from the Serious Accidents Punishment Act. First, the core of the Corporate Manslaughter Act is that the offense of manslaughter by negligence can also be applied to corporations. However, the standards for applying corporate manslaughter are not as unclear as those in the Serious Accidents Punishment Act, and the Corporate Manslaughter Act is applied only in exceptional cases after a thorough evidentiary process in court. In fact, Nicholas Rickby, Chief Inspector at the UK Health and Safety Executive (HSE), has stated that “in fatal industrial accident cases, the Corporate Manslaughter Act is applied in less than 5% of cases.”

Even if the Serious Accidents Punishment Act is implemented, it is questionable whether it can dramatically reduce industrial accidents. According to the HSE, the number of workers killed in workplaces in the UK fell from 179 in 2008–2009 to 147 in 2018–2019. It did decline, but it is difficult to view this as a dramatic reduction resulting from enforcement of the law. In particular, considering that the rate of deaths per 100,000 workers fell the most between 1988 and 1994 and then showed only a gradual downward trend thereafter, it cannot be said that enforcement of the law played a major role in reducing industrial accidents.

In Korea as well, the number of deaths from industrial accidents has steadily declined over a long period and appears likely to continue falling. Everyone agrees that major industrial disasters must be prevented. However, the Serious Accidents Punishment Act currently under discussion in the National Assembly demands only unconditional sacrifice and responsibility from businesspeople. The current bill, which contains only strong punishment provisions after an accident occurs, cannot reduce industrial accidents and can only stifle corporate management activities. It is like “burning down the whole house to catch a bedbug.” To prevent industrial accidents, it would be desirable to shift policy direction toward helping companies establish systems to prevent accidents in advance, rather than first strengthening redundant punishment for accidents that have already occurred.

Sung-no Choi

President, Center for Free Enterprise (CFE)

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Original title: 기업을 가중처벌하려는 중대재해법 유감

Author: Sung-no Choi

Date: 2020-12-27

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=press&idx=23380