hankyoreh

Kim Mi-suk, the mother of the late Kim Yong-kyun and president of a foundation in his honor, screams at the Supreme Court following a press conference on the outcome of the trial there. (Baek So-ah/The Hankyoreh)

“All appeals are denied.”

Thursday morning. Courtroom No. 1 of the Supreme Court filled with groans and tears upon the brief reading of the verdict. Kim Mi-suk, mother of the late Kim Yong-kyun, had been clasping her hands in prayer. Upon hearing the sentence, her hands fell apart, and she began clasping her chest. “What kind of court is this? Why do you not protect the weak and those without power?”

The decision on Thursday marked the end of a legal journey to hold those responsible to account for the death of Kim Yong-kyun, a subcontracted worker who died in an accident at the Taean thermal power plant in December 2018. The Supreme Court upheld the acquittal of the main contractor firm and the firm’s CEO.

Throughout the past five years, Kim’s death has taught Koreans that principal contractors and their CEOs need to be held responsible for discriminatory practices that result in work deaths. Yet the main contractor wasn’t punished in Kim’s case.

After the bench read its findings, Kim Mi-suk, Kim’s mother, was escorted out of the courtroom by bailiffs. Enervated and devastated, she fell to her knees at the courtroom entrance. Once she had been helped up and left the courthouse, she muttered under her breath, “Let’s see who gets the last laugh. Even if we lose here, we will find a way to win somewhere else.”

On this day, the second petty bench of the Supreme Court rejected the appeal by the prosecution, upholding the acquittal of the principal contractor and subcontractor firms and 13 executives and staff members (according to their titles at the time of the accident) on charges of violating the Occupational Safety and Health Act and of committing involuntary manslaughter.

Korea Western Power Co. and Kim Byung-sook, who was CEO at the time of the accident, were acquitted of all charges. The court convicted the main contractor’s safety manager, the subcontractor and its CEO, and other staff who were on site. Yet even these convictions came with suspended sentences or were nothing more than a simple fine.

Former Korea Engineering and Power Service (KEPS) CEO Baek Nam-ho was sentenced to a year of imprisonment without labor, with a two-year delay. Lee Geun-cheon, former KEPS director of the Taean contract, was given a 14-month prison sentence, delayed for two years. Nobody was sentenced to immediate imprisonment.

Kim Yong-kyun was an irregular employee of KEPS, which had been subcontracted to operate the Taean coal power plant. Kim was working as a machine operator on the night shift on Dec. 10, 2018, when he was caught in a conveyor belt transporting coal and killed between 10:35 and 10:55 pm. On that night, Kim was the only one tasked with inspecting the conveyor belt and removing any coal that fell out of place. He was alone when he died.

The conveyor belt was not equipped with its mandatory safety guard, and safety protocols dictate that Kim should have been working as part of a two-person team. Although it was a night shift, the lights around the conveyor belt were shut off to save power. The emergency stop device (pull cord switch) turned out to be faulty and nonoperational. These facts were acknowledged by the court. The work environment was littered with safety hazards.

Rather than becoming buried amid the countless deaths that have occurred from industrial accidents, Kim’s face became a public symbol of the industrial practice of “outsourcing danger,” where companies delegate dangerous jobs to subcontractors that use irregular, or temporary, workers. The torch of his cause was carried by activists and critics who pointed to industrial malpractice and by Kim’s mother, who has carried on a persistent legal battle. In April 2019, four months after Kim’s death, the Prime Minister’s Secretariat established a special investigation committee (headed by a former Supreme Court justice) to investigate the true circumstances surrounding Kim’s death and to draft countermeasures to prevent future deaths.

The special committee announced the results of its investigation in August of that year. The committee identified “the structure of principal contractors and subcontractors” as the foundational cause behind Kim’s accident. To reduce costs, the Taean plant excessively outsourced the operation of stackers and reclaimers that pile and retrieve coal, which is a continuous process, to subcontractors. Although Kim was technically employed by the subcontractor, he was effectively performing duties dictated by Taean, which effectively made him a full-time employee of Taean who didn’t receive any of the benefits or protections of regular employees.

The investigation committee submitted a proposal that included 22 countermeasures to improve safety and prevent future accidents. These countermeasures included converting irregular employees into regular, full-time employees, and requiring plant operators to establish the proper safety protocols. The Korean government reportedly accepted the proposal, yet irregular workers at power plants have not been converted into permanent, full-time employees.

“I’m so sorry, Yong-kyun. So sorry. We fought tooth and nail, but it looks like the road ends here,” said Lee Tae-seong, a former colleague of Kim’s who was also an irregular employee, after the court announced its decision. Lee was in tears.

Kim’s death has inspired legislation designed to bolster safety and hold companies and supervisors responsible. A total amendment of the Occupational Safety and Health Act that holds principal contractors responsible for safety hazards was approved in the National Assembly on Dec. 27, 2018, 17 days after Kim’s death. The amended legislation is colloquially known as the “Kim Young-kyun Act.”

The legislation holds the principal contractor responsible for the safety and health of subcontracted laborers when they work on the grounds and facilities owned by the principal contractor. In 2021, lawmakers enacted the Serious Accidents Punishments Act, which holds the “business owner” accountable for serious on-site accidents, and punishes the business owner for failing to prevent such accidents. Kim’s mother went on a 29-day hunger strike to urge lawmakers to pass the act in December 2020.

Kim’s death changed the world, yet the world has failed to uphold justice for Kim himself. Courts did not punish the business owner of the company that outsourced its labor to the subcontractor that employed Kim. To justify the court’s acquittal of former KEPS CEO Kim Byung-sook, the presiding judge claimed that “it is difficult to identify specific methods in the machine operators’ work processes [as dictated by the owner of the principal contractor] that directly resulted in danger.”

The ruling acknowledged that the power plant’s working conditions were hazardous. However, the ruling directed accountability for such conditions not to the principal contractor but to on-site managers. This effectively places responsibility for solving the principal contractor/subcontractor issue and for guaranteeing safe working conditions on on-site managers rather than on company executives.

“Today’s ruling is a narrow interpretation of accountability in the corporate decision-making process. It reflects a failure of the courts,” said Park Da-hye, an attorney who represented Kim’s family.

Kim’s mother has spent the past five years fighting for justice. Refusing to wallow in grief, she apologized for failing to secure the proper ruling and vowed to resume her battle for justice on behalf of the victims of serious industrial accidents.

“Though today it may appear that we are losing due to this unjust Supreme Court ruling, I believe that history will judge Kim Byung-sook to have been in the wrong,” she said. “To the people of Korea, I am sorry. We cannot wallow in powerlessness. I pledge to find new ways to save people going forward.”

The ruling comes only days before the fifth anniversary of the young Kim’s death, before which he took a photo of himself holding a sign reading, “I, Kim Yong-kyun, am an irregular worker, working as a coal machine operator at the Taean thermal power plant.”

By Kim Hae-jeong, staff reporter; Jang Hyeon-eun, staff reporter; Lee Ji-hye, staff reporter

Please direct questions or comments to [english@hani.co.kr]