산업안전보건법상 건설공사발주자와 도급인의 구별기준에 대한 연구 -대법원 2024.11.14. 선고 2023도14674 판결을 중심으로- = A Study on the criteria for distinguishing person placing an order for construction works and contractors under the Occupational Safety and Health Act

다국어 초록 (Multilingual Abstract)

As the Industrial Safety and Health Act was completely revised, the concepts of ‘person placing an order for construction works’ and ‘contractor’ were distinguished in the construction sector. Construction project orderers and contractors show a significant difference in their safety and health obligations, and the distinction between the two is determined by who is the entity that “leads, supervises, and manages the construction.” However, in practice, it has been very difficult to clearly distinguish between the contractor and the person placing an order for construction works compared to the importance of the distinction. In response, the Supreme Court recently presented the criteria for distinguishing between the two for the first time regarding fatal accidents that occurred during port construction maintenance work. According to this, the criterion for distinguishing the contractor, ‘whether he or she leads, supervises, and manages the construction of the construction project’, should not be judged by whether he or she actually leads, supervises, and manages the construction, but should be evaluated normatively. In addition, specific criteria for distinction were presented as ① whether the subcontractor had actual control and management authority over the hazardous and dangerous factors related to the prevention of industrial accidents that may occur during the construction work performed at his workplace, ② the degree of actual influence the subcontractor exercised over the relevant construction work, ③ the subcontractor's expertise in the relevant work, and ④ construction capabilities.
In the currently pending case, the court should present more specific criteria to minimize confusion that occurs in practice and create a safer industrial site.