[공중위생관리법위반][공2008상,641]
[1] Whether a violation of the Public Health Control Act due to a violation of duty to report constitutes a crime of omission (affirmative)
[2] Requirements for establishing a co-principal between the crime of omission
[3] The meaning of "business operator" who is the person obligated to report a public health business
[1] The former part of Article 3(1) of the Public Health Control Act (amended by Act No. 8852 of Feb. 29, 2008 and enforced June 15, 2008) provides that "any person who intends to conduct a public health business shall install facilities and equipment prescribed by Ordinance of the Ministry of Health and Welfare for each type of public health business and report to the head of a Si/Gun/Gu." Article 20(1)1 of the same Act provides that "any person who fails to report under the former part of Article 3(1) shall be punished." In light of the form and purport of the provision, the crime of violation of the Public Health Control Act due to a violation of duty to report constitutes a crime of omission, the elements of which can only be realized by omission.
[2] The co-principal between the crime of omission is established only when a number of crime of omission is jointly obligated to do so, and the obligation can be fulfilled in common.
[3] The duty to report a public health business is granted to the “person who intends to run a public health business.” Here, the term “person who runs the business” refers to the person who becomes the subject to whom the rights and obligations due to the business are attributed. Thus, it does not include an employee of a business operator or an assistant.
[1] Articles 3(1) and 20(1)1 of the former Public Health Control Act (amended by Act No. 8852 of Feb. 29, 2008 and enforced June 15, 2008) / [2] Article 30 of the Criminal Act / [3] Article 30 of the former Public Health Control Act (amended by Act No. 8852 of Feb. 29, 2008 and enforced June 15, 2008)
Defendant 1 and four others
Prosecutor
Attorney Lee J-young
Seoul Central District Court Decision 2007No2052 Decided December 18, 2007
The appeal is dismissed.
The former part of Article 3(1) of the Public Health Control Act provides that "a person who intends to run a public health business shall have facilities and equipment prescribed by Ordinance of the Ministry of Health and Welfare for each type of a public health business and report it to the head of the competent Si/Gun/Gu." Article 20(1)1 provides that "the person who fails to report under the former part of Article 3(1) shall be punished." In light of the form and purport of the provision, a violation of the Public Health Control Act due to a violation of the duty to report constitutes a true omission that can be realized only by omission. Meanwhile, a joint principal offender among a crime by omission is granted a common obligation to a large number of persons who intend to run a public health business and is able to fulfill the common obligation. The obligation to report a public health business is granted to a person who intends to run a public health business, and the term "person who operates the business" refers to a person who is subject to the rights and duties arising from the business, and it is reasonable to interpret that it does not include a person who operates the business.
The court below, after compiling the adopted evidence, found the facts as stated in its decision, and determined that the defendants, who were the office chiefs of each branch office of the Korea in this case, did not constitute the persons liable to report under the above provision on the grounds that they were merely in a company's wage and salary income and are not the persons liable to whom the business rights and duties accrue, and further, unless the defendants are jointly liable to report, the court below determined that the joint principal offense of violation of the Public Health Control Act due to the violation of duty to report as a crime of omission is not established. In light of the above legal principles, the above judgment of the court below is correct, and there is no
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)