[업무상과실선박매몰등피고사건][하집1987(2),570]
The failure of the captain of a navigation-maintenance vessel to take a post-inspection and the causal relationship between collision accident and collision accident.
In a case where a captain of a overtaking vessel finds out a overtaking vessel at a sufficient distance to avoid a collision, without checking the existence, direction, and speed of the overtaking vessel, and without changing her course and speed, and where the captain of the overtaking vessel finds the overtaking vessel before the accident, even if the captain of the overtaking vessel finds the overtaking vessel, it cannot be said that the captain of the overtaking vessel was unable to find the overtaking vessel in advance due to failure to conduct a post-inspection and fails to meet the duty of care in proximate relation to the accident.
Article 189 of the Criminal Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 7245, Jan. 17, 1984)
Defendant 1 and one other
Defendant 1 shall be punished by imprisonment without prison labor for a period of one and half years.
The 90-day detention days prior to the pronouncement of this judgment shall be included in the above sentence against Defendant 1.
Defendant 2: Not guilty
Defendant 1) Nonindicted 2: (1) Nonindicted 2: (2) Nonindicted 3: (2) Nonindicted 1:3: (3) Nonindicted 2: (2) Nonindicted 4:3: (3) Nonindicted 1:3; (2) Nonindicted 2; (3) Nonindicted 4; (4) Nonindicted 2; (2) Nonindicted 4; (3) Nonindicted 2; (3) Nonindicted 2; (4) Nonindicted 2; (4) Nonindicted 2; (2) Nonindicted 3; (3) Nonindicted 4; (4) Nonindicted 2; (2) Nonindicted 2; (3) Nonindicted 3; (4) Nonindicted 2; (3) Nonindicted 2; (4) Nonindicted 2; (4) Nonindicted 3; (5) Nonindicted 2; (2) Nonindicted 3; (3) Nonindicted 4; (4) Nonindicted 2; (2) Nonindicted 3; (3) Nonindicted 3; (4) Nonindicted 4); and (2) Nonindicted 2) Nonindicted 3; and (2) Nonindicted 2) Nonindicted 3; and (2) Nonindicted 3) the Defendant 2, who had been engaged in navigation at the speed of the said vessel;
1. Each statement to the effect that the defendants' statements conform to the facts stated in this Court
1. Statement to the effect that the witness corresponds to the facts set forth in this Court by Non-Indicted 11
1. Each statement made to the Defendants in the prosecutor’s protocol of interrogation and each statement made to Nonindicted 11 and 12, which correspond to the facts indicated in the judgment
1. Each statement made to the Defendants in the preparation of a judicial police assistant and each statement made to the effect that it conforms to the facts of the judgment in each protocol of interrogation of the Defendants, Nonindicted 1, 12, and 13
1. A statement of Nonindicted 1’s written statement that corresponds to the facts indicated in the judgment
1. Statement that corresponds to the death of Nonindicted Party 14’s report (name 2 omitted) related to the sinking of a collision (in the investigation record 29 pages) on Nonindicted Party 14’s preparation
Articles 189(2), 187, 268, 40, 50 (Selection of Depository) and 57 of the Criminal Act
The summary of the facts charged against Defendant 2 is that (name 2 omitted) the captain of the above vessel (name 2 omitted) is the captain of the above vessel at low-net fishing vessel (name 2 omitted) on March 15, 1987, and (name 2 omitted) the captain of the above vessel was shipbuilding to return to Busan Port at around 08:00 of the same month, and Nonindicted 3, the captain of the above vessel, who was engaged in shipbuilding work, was allowed to navigate the above vessel by shipbuilding at around 08:0 of the above vessel. In such a case, the captain of the above vessel, who was engaged in shipbuilding duty, was placed at 20 times to prevent collision between the vessel and the above vessel and the above vessel, without any duty of care of the captain of the above vessel. The captain of the above vessel, who did not have any duty of care of the captain of the above vessel, did not have any duty of care of the captain of the above vessel to remove the vessel from the vessel at the same time, and did not have any duty of care of the captain of the above 1 vessel.
Defendant 2, Defendant 1 and Nonindicted 15’s testimony at the investigation agency and this court (except for the part that was not believed below among the statements by Nonindicted 1, Nonindicted 11) and Nonindicted 1’s statement as to Nonindicted 2’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s vessel’s port.
According to the above facts, it is practically impossible for Defendant 2 to navigate a ship within 24 hours a day. As such, it cannot be viewed that Defendant 2 did not directly shipbuilding as a direct cause for the instant accident. Thus, Defendant 2’s failure to do so cannot be said to constitute a violation of the duty of care. (Name 2 omitted) is a overtaking vessel (name 1 omitted) and (name 1 omitted) as an overtaking vessel, and thus, it cannot be said that Defendant 2 did not have a duty of care to avoid the course of the vessel (name 2 omitted), and it cannot be seen that Defendant 1 did not have a duty of care to safely maintain the speed of the vessel, even if Defendant 2 did not have a duty of care to safely maintain the speed of the vessel due to the lack of time prior to the instant accident (name 2 omitted). Thus, if Defendant 2 did not have a duty of care to avoid the collision with the vessel, it cannot be said that Defendant 1 did not have a duty of care to safely maintain the speed of the vessel. (Name 2 omitted)
Therefore, in this case without any evidence to prove otherwise that Defendant 2 neglected the duty of care as a ship mate, the facts charged of this case against Defendant 2 on the premise of Defendant 2’s breach of duty of care constitutes a case where it is unnecessary to determine the remainder of the facts charged, and thus, it is not guilty by the latter part of Article 325 of the Criminal Procedure Act.
It is so decided as per Disposition.
Judges Lee Jin-sung