[업무상과실치사·공중위생관리법위반][공2010상,601]
[1] The case holding that the judgment below erred by misapprehending legal principles and failing to exhaust all necessary deliberations, in case where Gap, who saw soup and soup making soup, brying staff Gap, brying out a soup, brying out a soup and taking out a brying staff member, was in violation of the duty of care as a public health business entity
[2] Whether an administrative regulation can be punished as an offender through negligence without an explicit provision (negative in principle)
[1] In a case where Gap, who saw soup after making soup, brying personnel Gap, saved after making soup, and saved after making soup, died, the case holding that the judgment below erred by misapprehending legal principles and incomplete deliberation, on the ground that it is difficult for Gap to conclude that the public bath was in a situation where the normal use of the bath was difficult at the time of making soup after making soup, and that it is difficult for the employees and business owners of soup and soup to conclude that there is a duty of care to additionally place employees or to control and manage all persons who have access to such bath after making soup, even if the guest takes a soup after making soup, it is difficult to view that there is a duty of care to control and manage all persons who are expected to take an additional employee or who have access to such bath as a public health business operator.
[2] Even if an administrative regulation is the main subject, it shall be punishable in accordance with the principle of the Criminal Act, except for cases where there is an express provision or an interpretation that criminal negligence is punishable.
[1] Article 268 of the Criminal Act / [2] Articles 8, 13, and 14 of the Criminal Act; Articles 4(7) and 20(2)3 of the former Public Health Control Act (amended by Act No. 8852 of Feb. 29, 2008); [Attachment Table 4] [Attachment Table 4] of the former Enforcement Rule of the Public Health Control Act (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 109 of May 15, 2009)
[2] Supreme Court Decision 85Do108 delivered on July 22, 1986 (Gong1986, 1141)
Defendant 1 and one other
Defendants
Law Firm Shin, Attorney Park Jong-sik, Counsel for the plaintiff-appellant
Chuncheon District Court Decision 2008No690 Decided August 28, 2009
The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
According to the reasoning of the judgment below, the court below determined that there was a causal relationship between the victim's breach of duty of care and the victim's death, in full view of the circumstances as stated in the judgment, including the fact that the victim and the non-indicted 1 et al. were taken in the sobry so that the body of the Maitius was drunk at the time when the victim first entered the sobry bank of this case, and that it was difficult for the victim to normally use the bath because he was drunk at the time when he first entered the sobry bank of this case.
However, the following circumstances acknowledged by the record are as follows: (a) the victim first frying the soup bank of this case from around 20:30 on June 21, 2007 to 22:00; (b) the victim 1 frying the alcohol in the billiard where Non-Indicted 1 worked; (c) at that time, Non-Indicted 1 had the remaining three persons prior to the victim's arrival in the above billiard room at investigation agency, and the victim her last frying; and (d) four persons at the time frying were 4 soldiers, and the state of the victim after drinking the alcohol was frying to the extent that the victim was a little rain. According to the facts charged of this case, it is difficult for the victim to conclude that the victim first frying the drinking water of this case was entering the sobry bank of this case at around 23:00 on the same day after drinking, and that it was difficult for the victim and the victim first frying the witness at the time of the sobry.
Furthermore, soup, the soup bank of this case is a single-story of 779.29m29m2 in Hongcheon-gun, Hongcheon-gun (hereinafter referred to as "detailed address omitted), and at night, Defendant 1 alone was in charge of affairs, such as receipt of usage fees, rental of uniforms, cleaning and launding, etc., and the floor provided outside of the soup bank of this case is installed, so that customers can go to the above floor within the soup bank. The above floor is open without fences or fences, so even if they do not go to the fry, it is possible to go to the soup bank of this case through the floor and the after door, but all customers are wearing a uniform from the soup bank of this case, and it is difficult for the victim to receive the above fry usage fees from the soup bank of this case and to take care of the victim's fry with the care of the victim's fry and the victim's fry by taking out the above fryer's fry and the next fryer's.
Therefore, the court below erred by misapprehending the legal principles on the duty of care as a public health business entity or failing to exhaust all necessary deliberations, on the ground that the victim did not control soup access by the victim. The ground of appeal pointing this out is with merit.
2. Regarding ground of appeal No. 2
Article 20 (2) of the former Public Health Control Act provides that "a person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than six months or by a fine not exceeding five million won." Article 20 (3) of the former Public Health Control Act provides that "a person who fails to observe the matters to be observed by a public health business entity for the sound business order in violation of the provisions of Article 4 (7)." Article 4 (7) of the same Act provides that "No person shall have access to a public bath due to drinking, etc." (c) provides that "a person who is deemed to have difficulty in normal use of a public bath due to drinking, etc." (d) of the Enforcement Rule of the Public Health Control Act provides that "a person who is deemed to have access to a public bath shall not be permitted to be a person who has access to the public bath for the purpose of sound business order in violation of Article 4 (7)."
As seen above, it is difficult to conclude that Defendant 1 was in a difficult condition for the victim to normally use the bath by drinking soup at the time when he first brought the victim to the bath of this case. In addition, in light of the fact that the victim took the bath in the latter part of the soup, and then he was aware of the fact that the victim took the bath again after drinking soup, it cannot be said that there was an intention to allow the above defendant to have access to a person who is deemed difficult to normally use the bath due to drinking, etc., and therefore, the above defendant cannot be held liable for criminal liability according to the facts charged in this case, and it cannot be held that Defendant 2, who was prosecuted pursuant to both punishment provisions on the premise that the facts charged against the above defendant are recognized.
On the contrary, the lower court’s determination that all Defendants guilty of violating the Public Health Control Act is erroneous by misapprehending the legal doctrine regarding intentional act or by failing to exhaust all necessary deliberations, and the allegation in the grounds of appeal assigning this error is with merit.
3. Conclusion
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Min Il-young (Presiding Justice)