South Korea

Initial decisions on the Serious Accidents Punishment Act

Sung Hyun Hwang
GS Engineering & Construction, Seoul

Enforcement of the Serious Accidents Punishment Act

The increased pressure for businesses to adopt environmental, social and governance (ESG) practices is taking various forms across different countries.

In Korea, a notable response to heightened social responsibility expectations is the enactment of the Serious Accidents Punishment Act (중대재해처벌법) (SAPA), effective since 27 January 2022. The SAPA is significant as it addresses the aftermath of serious accidents, and their links to companies’ safety and health management systems.

Under this act, individuals determined as Responsible Managing Officers (경영책임자) such as chief executive officers (CEOs), chief safety officers (CSOs), representative directors and presidents bear accountability for serious accidents in their businesses or workplaces. If a company’s safety system is inadequate and a serious accident occurs, criminal penalties – including imprisonment and fines of up to KRW 1bn – can be imposed on these officers.

The construction industry, prone to such accidents, has witnessed a pioneering court ruling involving the SAPA after a fatal incident on a construction site. Given that these rulings are the first instances of SAPA enforcement, they have drawn significant attention, particularly due to the imprisonment of a company’s representative director for a SAPA violation.

Initial court decisions

The first decision^[1] involves a construction company that subcontracted a portion of its construction work to a subcontractor. Tragically, an employee of the subcontractor fell from an 18-metre height on the fifth floor into an opening and died. The employee was not wearing a safety harness. The court sentenced the representative director of the construction company to 18 months in prison suspended with a three-year probation for SAPA violations. A criminal fine of KRW 30m was imposed on the construction company for both SAPA and the Occupational Safety and Health Act (OSHA) violations. The site managers of both the construction company and the subcontractor were sentenced to eight months in prison suspended with a two-year probation for death by occupational negligence^[2] and OSHA violations. A criminal fine of KRW 10m was imposed on the subcontractor for OSHA violations.

The court’s decision hinged on the Responsible Managing Officers’ responsibility to establish and implement safety and health measures for the employees of a third party when their company or institution subcontracts to the third party in the business or workplace that it substantially controls.^[3]

The court found that the representative director (as Responsible Managing Officer) of the construction company failed to comply with the obligations under the SAPA, including (1) establishing work procedures to identify and improve hazards and risks,^[4] (2) setting criteria for evaluating safety and health managers,^[5] and (3) preparing a manual for emergency response.^[6] These lapses led to the failures to provide safety harnesses to employees and to cease the lifting work without wearing a safety harness, despite the removal of a safety guardrail for the lifting work.

The second decision^[7] pertains to a steel manufacturing company that engaged a contractor for facility repairs. During the repair work, a malfunctioning textile belt caused a 1,220kg heat sink to fall from a crane; the heat sink struck and killed an employee of the contractor in the steel manufacturing company’s plant. Similarly to the first decision, the court found that the representative director of the steel manufacturing company failed to establish and implement adequate safety and health measures for the contractor’s employees who were working in the business or workplace that the steel manufacturing company substantially controls, violating SAPA and OSHA obligations. The court sentenced the steel manufacturing company’s representative director to one year in prison without suspension, setting a precedent for Responsible Managing Officers being actually detained and imprisoned under the SAPA. The representative director appealed the decision, but the second-instance court dismissed the appeal.^[8]

Prospects of future development

With the courts imposing prison sentences on the Responsible Managing Officers of the defendant companies in both cases, the pressure on construction companies to establish and implement effective safety and health measures in compliance with SAPA requirements is expected to heighten.

The imposition of an actual prison sentence without suspension in the second decision, considering the representative director’s prior criminal history related to violating occupational safety duties and being held accountable for a deadly accident, is likely to underscore the importance of taking measures to prevent similar accidents from recurring.

Meanwhile, in a pending SAPA case, in which a defendant has applied for a constitutionality review of the SAPA for ambiguity of obligations, severity of penalties and disparities compared to other crimes,^[9] the court recently dismissed the application.^[10] However, as the defendant is contemplating an appeal to the Constitutional Court,^[11] it will also be worth monitoring the controversies over the constitutionality of the SAPA.