[2] The application of Article 55 of the former Urban Gas Business Act

[3] Specific elements of preventive measures to be taken by general urban gas business operators under Article 28(1) of the former Urban Gas Business Act

[2] The purpose of Article 55 of the former Urban Gas Business Act is to punish both a person who committed a violation of each of the provisions of this Article and a person who committed a violation, or a person who did not directly engage in such violation, and thus, a person who committed a violation, other than a business operator, is also subject to the penal provisions of each of the two Articles.

[3] In accordance with Article 28(1) of the former Urban Gas Business Act, the detailed contents of preventive measures to be taken against gas users shall be limited to the subparagraphs of Article 23(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13502, Nov. 9, 1991) and Article 30(1) of the same Enforcement Rule (amended by Presidential Decree No. 113, Jun. 22, 1990) of the same Act (amended by Ordinance of the Ministry of Energy No. 113, Jun. 2, 1990). In other words, it is reasonable to view that the preparation and distribution of maps for the safety control of gas-using facilities at least once every six months, execution of gas leakage inspections, regular safety inspection of gas-using facilities, and other measures stipulated by Ordinance of the Ministry of Energy at least once every two years every six months.

1. The facts charged of this case are as follows: from January 10, 1987, Defendant 1 entered into a contract with the Gangnam Urban Gas Corporation, a general urban gas business operator for the installation, management, inspection, publicity materials, delivery, safety inspection, and other activities related to the supply of urban gas in the new, new, new, and new areas of Yangcheon-gu Seoul. Defendant 2 is working as the head of the regional management office of the company. Defendant 2 is working as the safety manager of the above regional management office on May 20, 1989. Defendant 2 is around 00, around 19:0, around 5, around 103 10, 733-1, 103-1, and 103-30, 500, which connects the indoor pipelines for gas supply constructed by the new, new, new, new, and new urban gas business operator to the indoor pipelines for gas supply, and the prosecutor did not immediately inform Defendant 1 and the constructor of the above measures to prevent gas leakage of the gas.

2. The judgment of the court below

According to the reasoning of the judgment below, Article 28 (1) of the Urban Gas Business Act provides that a general urban gas business operator shall take preventive measures against harm under each subparagraph of the same Article to gas users, and Article 51 subparagraph 4 of the same Act provides that a person who violates the provisions of Article 28 (1) of the same Act shall be punished by imprisonment for not more than one year or by a fine not exceeding three million won. Defendant 1 is merely a person in a relationship with the above company under the direction and supervision of the above Gangnamnam Urban Gas Business Act, which is a general urban gas business operator, with the entrustment of some duties such as safety control duties, etc. among the duties to be directly managed by the above company, and the above defendant cannot be deemed to be a general urban gas business operator who manufactures gas or receives natural gas from gas wholesalers and supplies gas to users in accordance with the general demand, and since there is no other evidence to recognize the defendants as a general urban gas business operator, the facts charged in this case constitutes a case where there is no evidence to prove the crime.

3. Judgment of party members

A. As to Defendant 1

Article 28(1) of the Urban Gas Business Act (amended by Act No. 4541 of March 6, 1993; hereinafter the same shall apply) provides that a general urban gas business operator shall take the following preventive measures against harm to gas users. Article 51 Subparag. 4 of the same Act provides that "urban gas business" means a business supplying fuel to users (excluding petroleum refining business under the Petroleum Business Act), and Article 2 Subparag. 1 of the same Act provides that "urban gas business" means a gas wholesale business or general urban gas business operator who has obtained permission of urban gas business under Article 3 and urban gas business operator; Article 28(1)2 of the same Act provides that "urban gas business operator means a gas business operator who has obtained permission of urban gas business from a general urban gas business operator or a large-scale resource supplier; Article 51 Subparag. 4 of the same Act provides that "urban gas business operator shall be punished by a person other than a general urban gas business operator; and Article 2 Subparag. 3 of the same Act provides that "urban gas business operator shall be supplied to the general gas supplier or gas supplier under its jurisdiction;

Therefore, as determined by the court below, if Defendant 1 is only an agent entrusted with some duties, such as safety management, among the duties to be directly managed by the above company under the direction and supervision of the above Gangnam Urban Gas Corporation, which is a general urban gas business operator, Defendant 1 does not constitute a general urban gas business operator who should take preventive measures against danger under Article 28(1) of the same Act.

The judgment of the court below to the same purport is just, and there is no reason to issue the judgment below on the ground that there is no error of law such as misunderstanding of legal principles or omission of judgment.

B. As to Defendant 2

Article 55 of the Urban Gas Business Act provides that "if a representative of a corporation, or an agent, employee, or other servant of a corporation or an individual commits an offence under Articles 48 through 53 in connection with the business of the corporation or the individual, not only shall such offender be punished, but also the corporation or the individual shall be punished by a fine under each relevant Article." The purpose of this provision is to punish both the offender and the individual, even in cases where the corporation or the individual, who is the enterpriser, does not directly commit such offence under each of the above Articles. Thus, the penal provisions of each of the above Articles shall apply to the offender (see Supreme Court Decision 91Do801, Nov. 12, 1991).

Nevertheless, the court below found Defendant 2 not guilty on the ground that there is no evidence to acknowledge that Defendant 2 is a general urban gas business operator under the premise that the application of Articles 51 subparag. 4 and 28(1) of the same Act is limited to general urban gas business operators who obtained permission for urban gas business. Thus, the court below erred by misapprehending the legal principles of Article 55 of the same Act.

However, in light of the purport of the relevant laws and regulations, it is reasonable to view that the specific contents of preventive measures to be taken by general urban gas business operators to gas users pursuant to Article 28(1) of the same Act are limited to those stipulated in each subparagraph of Article 23(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13502 of Nov. 9, 191) and Article 30(1) of the Enforcement Rule of the same Act (amended by Presidential Decree No. 1113 of Jun. 22, 1990), namely, the preparation and distribution of maps for the safety management of gas-using facilities at least once in June, and the preparation and distribution of maps for gas leakage inspection on gas-using facilities at least once in six months, regular safety inspection on gas-using facilities, and other measures stipulated by Ordinance of the Ministry of Finance and Economy at least once in two years, and the facts charged against Defendant 2 are not subject to punishment for violation of Article 28(1)1 of the same Act and Article 40(1) of the same Act.

Therefore, the conclusion of the court below that acquitted Defendant 2 is justifiable, and thus, the argument cannot be accepted.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)