작업중지권에서 산업재해가 발생할 급박한 위험의 판단 주체와 기준 ― 대법원 2023. 11. 9. 선고 2018다288662 판결 ―

Article 52 of the Occupational Safety and Health Act (hereinafter referred to as the “OSHA”) stipulates the right to cease unsafe work. Considering foreign legislation on the right to cease unsafe work, the history of the Occupational Safety and Health Act, which separately stipulates exemption requirements, and the exercise of the right to cease unsafe work are essentially necessity, it is reasonable to judge the imminent danger of industrial accidents based on two criteria. Referring to the ILO Convention No. 155 that introduced the right to cease unsafe work and the legislation and interpretation of other countries that legislated it, it is reasonable to assume that the duty to cease unsafe work occurs when there is an imminent danger of industrial accidents objectively. The “imminent danger of industrial accidents” as a requirement for the fulfillment of the employer's duty to cease unsafe work stipulated in Article 51 of the OSHA should be judged from the standpoint of objective theory. The main theory is that the “imminent danger” should be judged based on the intention of the worker who exercised the right to cease unsafe work as a requirement for exercising the right to cease unsafe work and exemption stipulated in Article 52 (4) of the OSHA. In the meantime, in court practice, lower court precedents have occasionally appeared on the right to cease unsafe work, but there has been no case of the Supreme Court ruling on the right to cease unsafe work. In this judgment, the Supreme Court established the legal theory on the right to cease unsafe work for the first time. On July 26, 2016, around 07:56 and 09:30, the KOC factory in the Bugang Industrial Complex in Sejong-si leaked about 300 liters of Thiobis, a chemical used in lens manufacturing. The plaintiff, who was the head of the labor union branch of the defendant's company, who was about a 200m radius from the leak accident site, evacuated after recognizing that there was an imminent danger of industrial accidents based on the explanation of the fire department that harmful chemicals had leaked to the human body and the labor inspector's remarks recommending evacuation. The defendant ordered the plaintiff to be suspended for two months. The first trial and appeal court dismissed all of the plaintiff's claims on the grounds that it was difficult to say that the plaintiff had a reasonable basis to believe that there was an imminent danger of an industrial accident. However, Supreme Court reversed the judgment of the lower court on the grounds that “workers can stop working and evacuate if there is a reasonable basis to believe that there is an imminent danger of industrial accidents, and the employer shall not dismiss the worker or take any other adverse treatment for such reasons.” First of all, this judgment was clearly declared that the judgment subject of imminent danger is a worker according to the provisions of the current law. Next, even if the Plaintiff did not actively make an effort to confirm the facts that could be objectively confirmed at the time, Supreme Court adopted the subjective theory that the Plaintiff's exercise of the right to cease unsafe work should be judged based on the information collected at that time.