[액화석유가스의안전관리및사업법위반][공2008상,869]
Whether a person who has obtained permission under another person’s name and conducts liquefied petroleum gas-related business may be punished for a violation of Article 45 subparag. 3 of the former Safety Control and Business of Liquefied Petroleum Gas Act
In full view of the provisions of Articles 2 subparag. 2, 3, 6, 12(1), and 45 subparag. 3 of the former Safety Control and Business of Liquefied Petroleum Gas Act (amended by Act No. 8358 of Apr. 11, 2007), a liquefied petroleum gas business operator under Article 12(1) of the same Act shall be construed as “a person who has obtained permission for a liquefied petroleum gas business under Article 3 of the same Act” as defined in Article 2 subparag. 2 of the same Act. Thus, Article 45 subparag. 3 of the same Act, which treats a person who has committed a violation of the duty of maintenance, such as facility standards falling under Article 12(1) of the same Act, shall be deemed as a provision that treats a business operator’s act on the above status. Therefore, a person who operates a liquefied petroleum gas business with permission under another person’s name, and thus, cannot be punished for a violation of Article 45 subparag. 3 of the same Act, since he/she is not a liquefied petroleum gas business operator.
Articles 2 subparag. 2, 3, 6 (see current Article 7), 12(1) (see current Article 13(1)), and 45 subparag. 3 (see current Article 48 subparag. 3) of the former Safety Control and Business of Liquefied Petroleum Gas Act (amended by Act No. 8358 of Apr. 11, 2007)
Defendant
Defendant
Cheongju District Court Decision 2007No920 Decided January 9, 2008
The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.
The grounds of appeal are examined ex officio.
According to Article 45 subparagraph 3 of the former Safety Control and Business of Liquefied Petroleum Gas Act (amended by Act No. 8358 of Apr. 11, 2007; hereinafter the "Act"), a person who violates the provisions of Article 9 (1) or 12 (1) of the Act shall be punished, and Article 12 (1) of the Act provides that "the business operator, etc. shall maintain the facilities for filling, collective supply, storage and sale of liquefied petroleum gas or the gas appliance manufacturing facilities in conformity with the facility standards and technical standards under Article 3 (4) or 5 (2) of the Act," and Article 6 of the Act provides that "the business operator, etc. shall maintain the facilities for filling, collective supply, storage and sale of liquefied petroleum gas or the gas appliance storing business operator (hereinafter "business operator, etc."), and Article 2 subparagraph 2 of the Act provides that "the person who has obtained permission for the above liquefied petroleum gas filling business" shall be construed as "the person who has obtained permission for the above liquefied petroleum gas filling business" as "the above provision of Article 2 (3) of the Act.
However, according to the records, the defendant's operation of the liquefied petroleum gas filling business in this case after obtaining permission under the name of non-indicted 1, his wife, and thus, the defendant is not a liquefied petroleum gas filling business operator under Article 12 (1) of the Act, and the defendant cannot be punished as a violation of Article 45 (3) of the Act.
Nevertheless, the judgment of the court below which found the defendant guilty as to the facts charged of this case is erroneous in the misunderstanding of legal principles as to the violation of Article 45 subparagraph 3 of the Act, which affected the conclusion of the judgment.
Therefore, without examining the Defendant’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)