[Unofficial translation provided by the Business & Human Rights Resource Centre]

“Court refers ‘Serious Disaster Act Law’ to Constitutional Court, coping ‘Employer’s Claims’” 1 April 2025

The Serious Disaster Act has been referred to the Constitutional Court for judgment. This marks the first time a court has accepted a constitutional review request from a business leader regarding the law. As the criminal trial is suspended until the Constitutional Court delivers its verdict, all eyes are now on the decision. The court’s decision has raised criticism, with some claiming it effectively endorsed the business community’s arguments, distorting the intent of the law. Particularly contentious is the provision that holds primary contractors accountable for major accidents at subcontracted companies, a provision the court interpreted as excessive, which is likely to provoke strong opposition from the labour sector.

...According to the ruling issued by the 4-3 Criminal Division of the Busan District Court (Chief Judge Kim Do-gyun), the court accepted the constitutional review request filed by Seongmu Construction, based in Busan’s Yeonje District, on the 13th of this month. The court stated, “This legal provision is not only a prerequisite for the criminal trial but also contains substantial reasons to believe it contradicts the constitutional principles of the prohibition of excessive punishment, responsibility, equality, and clarity, thus justifying a referral to the Constitutional Court.”

The provision under review in the constitutional review concerns the ‘duty of employers to ensure health and safety’ and the penalties attached to this responsibility.

...Experts on major accidents have unanimously criticised the decision as disregarding the law’s fundamental principle of employer ‘responsibility’. They argue,... “The Serious Disaster Act is based on the legal principle of liability for both benefits and risks, which holds employers accountable for the safety of workers providing labour for them.” .... “Under South Korea’s legal framework, families of workers who die in industrial accidents are unable to hold primary employers accountable through civil lawsuits.” ..."The court for focusing on the civil law perspective of contract freedom when evaluating the law’s constitutionality, entirely overlooking the fact that the Act is fundamentally a labour law with specific meaning and intent."