[1] The case holding that since the cause of the collapse of a building is deemed that the negligence in the formulation of a building plan, construction design, construction work process, maintenance and management after the completion of the building, etc. is combined, the persons involved in each stage shall be punished as joint principal offenders of the crime of occupational injury and death

[2] Whether punishing only a bribe recipient without punishment of the bribe recipient who is the other party violates Article 11(1) of the Constitution (negative)

[3] The starting point of the statute of limitations for occupational injury and death

[4] In case where there are errors or omissions in the applicable provisions of law in the indictment, whether it is necessary to change the indictment (negative with qualification)

[5] The case holding that an act of accepting a report on the establishment of a large retail store after drawing up a false master's name in violation of the internal policy of the administrative agency constitutes "an act of improper performance" under Article 131 (2) of the Criminal Code

[1] The case holding that since the cause of collapse of a building (a three-dimensional department store), the negligence in the formulation of a construction plan, construction design, construction work process, maintenance and management of a building after completion of the construction, etc. is deemed to have been combined, the persons involved in each stage shall be punished as co-principals of occupational injury or death

[2] It cannot be deemed that the crime of offering of a bribe is against Article 11(1) of the Constitution on the ground that the bribeer, who is the other party to the crime of offering a bribe, is punished only by the bribeer without being punished.

[3] It is reasonable to interpret to the effect that "act of crime" under Article 252 (1) of the Criminal Procedure Act, which provides for the starting point of the statute of limitations shall also include the result of the relevant crime. Thus, the statute of limitations for the crime of occupational occupational injury or death shall run from the time when the victims suffered the result of the occurrence of the occurrence of the occurrence

[4] The reasons why the applicable provisions of the indictment are written in the indictment lies in clarifying the legal evaluation of the facts charged and ensuring the defendant's right of defense. Thus, even if there are errors or omissions in the entry of applicable provisions of law, it does not affect the validity of the prosecution unless there is any substantial disadvantage to the defendant's defense, and the court may also apply the legal provisions that are not immediately written in the indictment without going through the procedures for modification of the indictment.

[5] The case holding that an act of violating the internal policy of an administrative agency and accepting a report of the establishment of a large retail store constitutes "an unlawful act in the course of performing duties" under Article 131 (2) of the Criminal Code, and it shall not be deemed that there is no authority to review the requirements for the report of the establishment of a large retail store and determine whether to accept the report, but it shall not be deemed that there is a different authority

[1] Article 30 of the Criminal Act, Article 268 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995) / [2] Article 11(1) of the Constitution of the Republic of Korea, Article 133 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995) / [3] Article 268 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995), Article 252(1) of the Criminal Procedure Act / [4] Article 298(1) of the Criminal Procedure Act / [5] Article 131 of the Criminal Act, Articles 10 and 17 of the former Wholesale Business Promotion Act (amended by Act No. 3896 of Dec. 31, 1986)

[1] [3] Supreme Court Decision 94Do35 delivered on March 22, 1994 (Gong1994Sang, 137) / [1] Supreme Court Decision 94Do660 delivered on May 24, 1994 (Gong1994Ha, 1868) / [4] Supreme Court Decision 93Do658 delivered on July 27, 1993 (Gong1993Ha, 2475), Supreme Court Decision 94Do129 delivered on November 4, 1994 (Gong194Ha, 3302), Supreme Court Decision 95Do1893 delivered on December 12, 195 (Gong196Sang, 452) / [5] Supreme Court Decision 94Do6839 delivered on July 27, 1993 (Gong199383, Jul. 38, 1995)

Defendant 1 and 12 others

Defendants and Prosecutor

Ulil Law Office, Attorneys Ji-hun et al., Counsel for the defendant-appellant-appellant

Seoul High Court Decision 96No118 delivered on April 26, 1996, 96No118 delivered on May 10, 1996

All appeals by the Defendants and the Prosecutor against Defendant 1, 2, and 3 are dismissed.

The grounds of appeal (including the grounds for the supplement) are examined.

1. As to the grounds of appeal by Defendant 1, Defendant 2, Defendant 4, 5, 6, and 7’s defense counsel’s ground of appeal on the ground of appeal by Defendant 1, Defendant 1’s defense counsel

The judgment of the court below and the judgment of the court of first instance, cited by the court below, judged as follows as to the causes of the building collapse.

공소외 삼풍건설산업 주식회사(이하 삼풍건설이라 한다) 소유인 이 사건 건물(서울 서초구 서초동 1685의 3 소재 지하 4층 지상 5층의 삼풍백화점 A동 건물)은 대형유통시설로서 건물의 기둥과 기둥 사이에 보를 설치하는 대신 통상의 라멘조 건물보다 슬래브를 두껍게 시공하고 기둥 주변의 슬래브를 지판(Drop Panel)으로 보강하는 방식으로 지어진 플랫슬래브(Flat Slab) 구조의 건물인 데다가 내부의 기둥과 기둥 사이 간격(Span)이 일반의 건물에서는 보기 드물게 긴 10.8m로서 어느 한 부분이 붕괴될 경우 연쇄적으로 건물 전체가 붕괴될 수 있는 특성을 가지고 있었으므로, 이러한 건물의 구조적 특성상 체계적이고 종합적인 건축계획을 세우고 구조계산을 비롯한 건축설계, 골조 및 마감공사 등 건축공사공정, 건물완공 후의 유지관리 등 일련의 과정에 있어서 건물의 구조안전에 대하여 세심한 주의를 기울일 필요가 있다 할 것인바, 이 사건 건물이 붕괴된 데에는 다음과 같은 여러 가지 원인이 겹쳐 있다. 이 사건 건물 신축 당시 구조계산을 담당했던 원심 공동피고인 1은 지상 5층과 지붕층의 슬래브 구조계산시 설계도상 5열 E행, 5열 F행 기둥의 내력 및 그 기둥 주변을 비롯한 일부 슬래브 단면의 내력을 부족하게 계산하고, 지상 2층부터 5층까지의 바닥 슬래브를 전후면 외곽기둥의 100㎝ 깊이 중 30㎝만 연결하도록 함으로써 그 주변 슬래브에 응력이 집중되게 하고 전단에 저항할 수 있는 유효면적을 감소시켰으며, 건물기본계획상 옥상에 설치하기로 예정된 냉각탑 3개에 대한 구조계산을 누락하였다. 이 사건 건물에 대한 설계 및 감리를 담당했던 원심 공동피고인 2는 이 사건 건물에 대한 구조설계도면 작성시 옥상의 냉각탑 설치에 따라 달라질 구조계산을 설계도면에 반영하지 아니하고, 운동시설이던 5층을 전문식당가로 용도변경함에 있어서 구조계산을 의뢰하여 이를 설계도면에 반영하는 조치를 취하지 아니 하였으며, 지붕층 슬래브의 마감공사 시공방법을 명기하지 아니함으로써 시공자로 하여금 구조계산시에 비하여 고정하중을 초과하여 시공하도록 만들었고, 기초공사시부터 건물 완공시까지 공사감리를 제대로 하지 아니하였다. 삼풍건설로부터 이 사건 건물신축공사 중 골조공사를 도급받은 공소외 주식회사의 현장소장인 공소외 김용경, 공사과장인 공소외 김영배, 건축주임인 피고인 4, 건축기사인 피고인 5 등은 시공에 참여하는 인부들을 제대로 지휘·감독하지 못함으로써, 지상 5층 및 지붕층 슬래브를 비롯한 많은 슬래브의 상부인장철근이 정상적인 위치보다 4-6㎝(가장 낮은 부분은 13-18㎝) 정도 가라앉은 상태로 시공되게 하고 상당수의 지판부분 슬래브의 두께를 정상 두께인 45㎝보다 5㎝정도 얇게 시공되게 함으로써 슬래브의 유효두께를 감소시켜 내력을 심히 떨어뜨렸으며, 북측 1번 코아와 지붕층 슬래브가 연결되는 곳으로 설계도상 5층 4열 E행 부위에 해당하는 기둥 상부에 시공하도록 되어 있던 15㎝ 두께의 지판시공이 누락되도록 하여 그 부분 슬래브의 전단내력을 심히 떨어뜨렸고, 설계도상 북측 1번 코아 4열 부위에 지상 2층에서 5층까지 설치된 보에는 중앙하단부에 직경 22㎜짜리 철근 8대를 배근하여야 함에도 4대만 배근되도록 하였으며, 보의 스터럽(Stirrup, 늑근)은 직경 13㎜짜리 철근으로 단부 15㎝, 중앙부 25㎝ 간격으로 배근하여야 함에도 직경 10㎜짜리 철근을 단부와 중앙부 구별 없이 30㎝ 간격으로 배근되도록 하였고, 5층 슬래브 상부철근과 벽체의 정착길이는 철근 지름의 40배인 64㎝를 확보하여야 함에도 15-18㎝ 정도로 짧게 정착시켰으며, 설계도상 4열 G행 부위 슬래브의 상부철근은 직경 16㎜짜리와 19㎜짜리를 번갈아 15㎝ 간격으로 배열하고, 하부철근은 직경 16㎜짜리를 15㎝ 간격으로 배열하여야 함에도 불구하고, 1층 슬래브는 상부와 하부의 구별 없이 직경 13㎜짜리 철근을 15㎝ 간격으로 배열되도록 하고, 2층부터 지붕층까지의 슬래브는 직경 13㎜와 16㎜짜리 철근을 번갈아 15㎝ 간격으로 배열되도록 함으로써 예정된 철근콘크리트골조의 강도와 내력을 가지지 못하도록 하였다. 위 골조공사 과정에서 공소외 1 주식회사의 철근반장인 피고인 6은 철근공들에 대한 지휘·감독을, 공소외 1 주식회사회사의 형틀반장인 피고인 7은 형틀공들에 대한 지휘·감독을, 삼풍건설의 직원인 제1심 공동피고인 1은 공소외 1 주식회사회사의 공사담당자들에 대한 지휘·감독을 제대로 하지 아니함으로써 위와 같은 부실공사를 초래하였다. 삼풍건설의 대표이사인 피고인 1, 전무인 원심 공동피고인 3은 당초 백화점이 아닌 쇼핑센터 용도의 건물로 건축계획을 수립하여 설계를 의뢰하여 놓고서도 백화점 용도의 건물로 사용하기 위하여 건축면적을 임의로 증가시켜 새로운 시공용 설계도를 작성하도록 하면서, 20여 회에 걸쳐서 수시로 구조계산을 추가하여 설계에 반영하게 함으로써 건축계획을 무계획적으로 만들었고, 골조시공 중에도 수시로 용도변경 등을 요구하여 시공자로 하여금 종합적인 시공계획을 수립하여 시공할 수 있는 기회를 박탈함과 동시에 그로 인한 전반적인 부실시공을 초래하였으며, 설비설계도면조차 없이 골조공사를 완료함으로써 완성된 골조에 구멍을 마구 뚫어 개구부를 만들 수밖에 없도록 하는 등 건물의 구조안전에 심각한 손상을 초래하게 하였고, 당초 운동시설이던 5층을 전문식당가로 용도변경하면서 대리석 및 화강석의 마감재공사, 15㎝ 두께의 주방 바닥콘크리트공사, 벽돌을 사용한 칸막이 벽체공사, 온돌공사, 대형냉장고 등 시설물적치를 고려한 보강공사를 하지 아니함으로써 예정된 하중보다 360㎏/㎡ 이상의 과하중이 5층 기둥과 바닥 슬래브에 작용하도록 하였으며, 당초 지붕층 슬래브에는 냉각탑 설치를 위한 설계, 시공이 되어 있지 않았음에도 불구하고 자체하중이 각 28.7t(물의 하중까지 포함하면 45.5t)인 냉각탑 3개 설치하여 5층을 받치는 기둥과 5층 바닥 슬래브에 극심한 손상을 가져오게 하였고, 위 냉각탑을 이전설치하면서 옥상 슬래브 위로 끌고 이동함으로써 슬래브에 과다한 하중이 작용하도록 하여 손상을 가하였다. 삼풍건설의 설비부장인 제1심 공동피고인 2, 설비부 직원인 제1심 공동피고인 3, 건축부장인 원심공동피고인 4 등은 위와 같은 냉각탑 이전과 5층 식당공사의 담당자들로, 냉각탑 이전시에 필요한 조치를 취하지 아니하였거나, 5층 식당 주방의 배기덕트 설치를 위하여 내력벽을 40㎝×98㎝ 크기로 절단하고서도 아무런 보강조치를 취하지 아니함으로써 벽체의 내력을 저하시켰다. 이 사건 건물은 위와 같은 여러 가지 원인이 겹쳐 준공 직후부터 5층 식당주방 내 기둥 주변과 최초 냉각탑이 설치되었다가 이동한 경로를 중심으로 슬래브에 발생한 휨변형에 의한 균열이 장기간 지속적으로 성장하다가, 5층 주변 슬래브와 기둥에 더욱 큰 휨모멘트와 전단력이 발생하여 균열의 폭과 깊이가 증가되고, 계속적인 균열의 진행에 따라 슬래브가 펀칭전단에 견딜 수 있는 내력을 점차 상실하면서, 설계도상 5층 5열 E행, 5열 F행 둘레를 따라 전단파괴 현상이 일어나면서 기둥으로부터 주변 슬래브가 이탈되어 붕괴가 시작되고, 이탈 전의 기둥이 분배하고 있던 슬래브의 하중이 인접 기둥에 재분배되면서 그 하중을 이기지 못한 인접 기둥의 주변에서도 전단파괴 현상이 연쇄적으로 일어나 기둥들이 절곡되면서 슬래브가 붕괴되고, 그로 인한 충격으로 이 사건 건물 전체가 연쇄적으로 붕괴되었다.

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in comparison with the records, we affirm the above fact-finding and judgment of the court below, and there is no error in the misapprehension of legal principles as to proximate causal relation in the crime of occupational injury or death, such as incomplete deliberation or misconception of facts due to violation of the rules of evidence

2. As to Defendant 1’s remaining grounds of appeal

A. As to the grounds of appeal Nos. 1 and 3

According to the judgment of the court below and the judgment of the court of first instance as cited by the court below, since Defendant 1 was the representative director of Sam Pung Construction and the president of the above company responsible for the work of new construction and maintenance of the building of this case, he established a construction plan with the original department store to start the construction work of this case, and subsequently changed the construction plan to the department store, he shall first establish a new comprehensive construction plan suitable for the department store facilities according to the actual usage, and review the installation plan and design of the facilities in line with the above, and shall execute systematic construction without any specific direction to prevent the employees from using the five floors as sports facilities on the ground that there was no serious difference between the 0th floor and the 4th floor and the 5th floor, and there was no reason to view that there was no possibility of using the 5th floor as the new installation and maintenance tower to the 4th floor of the building of this case, and there was no difference between the 0th floor and the 5th floor, and thus, it is necessary to take measures to install the 5th floor and the new installation of the 5th floor.

B. Regarding ground of appeal No. 4

In addition to the gravity of a punishment for concurrent crimes, if the maximum statutory penalty is the same, the imprisonment is more severe than the imprisonment without prison labor. Therefore, among the criminal facts in the judgment against Defendant 1, the crime of offering a bribe under Article 10(c) shall be deemed to be the most severe punishment and the circumstances of the crime of offering a bribe in the judgment against Defendant 1, and the judgment of the court below which rendered a concurrent penalty for the punishment for the crime of offering a bribe is justifiable. The judgment of the court below is just, and it shall not be deemed to be a violation of Article 11(1) of the Constitution on the ground that the consignee, who is the other party to the crime

3. As to Defendant 4, 5, 6, and 7’s remaining grounds of appeal

It is reasonable to interpret to the effect that "act of crime" under Article 252 (1) of the Criminal Procedure Act, which provides for the starting point of the statute of limitations for a public prosecution, includes the result of the crime concerned. As such, the statute of limitations for a crime of occupational injury and death should begin from the time when the crime was completed by the victims' occurrence of the result (see Supreme Court Decision 94Do35 delivered on March 22, 1994).

In the case of this case, the court below's rejection of the above defendants' assertion that the prosecution was instituted after the expiration of the statute of limitations on the grounds that it is apparent that the victims were prosecuted before the lapse of five years from June 29, 195, which led to the death of the victims, is just in accordance with the above opinion of the party members, and there is no error in the misapprehension of legal principles as to the starting point of the statute of limitations, such as the theory of lawsuit.

4. As to Defendant 8’s ground of appeal

According to the evidence duly admitted by the judgment of the court below and the judgment of the court of first instance cited by the court below, it is sufficient to recognize that Defendant 8 intentionally commits an unlawful act in the course of performing his duties and received a bribe twice as stated in its reasoning, and therefore, the judgment below which held the same defendant as the case of the acceptance of a bribe and the case of acceptance of a bribe is just, and there is no violation of the rules of evidence, such as the theory of lawsuit, nor there is no error in the misapprehension of the legal principles

5. As to Defendant 2’s grounds of appeal

A. On the first and second grounds for appeal

The reasons why the applicable provisions of the indictment are written in the indictment are clearly evaluated in order to guarantee the defendant's right of defense by clarifying the legal evaluation of the facts charged. Thus, even if there are errors or omissions in the entry of applicable provisions of the indictment, it does not affect the validity of the indictment unless there is any substantial disadvantage to the defendant's defense, and the court may also apply the legal provisions that are not immediately written in the indictment without going through the procedures for modification of the indictment (see, e.g., Supreme Court Decisions 95Do1893, Dec. 12, 1995; 94Do129, Nov. 4, 1994; 93Do658, Jul. 27, 1993).

The court below determined that the applicable provisions of the indictment do not contain Article 131 of the Criminal Act, but when comprehensively considering the name of the crime, the applicable provisions of the law, and the facts charged, it is evident that the prosecutor indicted Defendant 2's act on the basis of the violation of the Act on the Aggravated Punishment, etc. of Improper Bribery, and that the prosecutor applied Article 131 (2) and (1) of the Criminal Act immediately without undergoing the procedure for modification of the indictment, after recognizing the criminal facts as stated in its reasoning. According to the records, the court below was sufficiently examined as to whether the same defendant's act constitutes an illegal act and did not show that there was a substantial disadvantage to the defendant's defense. Thus, the court below's above measures are just, and there is no error of law by misunderstanding the legal principles as to the principle of no accusation or the modification of indictment, which affected the conclusion of the judgment.

B. On the third ground for appeal

The issue is on the premise that the act of the defendant falls under Article 129(1) of the Criminal Act, and five years have already elapsed at the time of the prosecution of this case on the premise that the act of the defendant falls under Article 129(1) of the Criminal Act. However, the court below decided that the act of the defendant was committed by the same defendant under Article 131(2) and (1) of the Criminal Act, and that seven years have not yet passed since it is apparent that the prosecution of this case

6. As to Defendant 3’s defense counsel’s grounds of appeal

Examining the evidence duly admitted by the court below in light of the records, it is just and acceptable to recognize the fact that Defendant 3 received a bribe on two occasions as stated in its reasoning, and there is no error of law by misunderstanding facts against the rules of evidence, such as the theory of lawsuit.

7. As to Defendant 9’s ground of appeal

Examining the evidence duly admitted by the judgment of the court below and the court of first instance as cited by the court below in light of the records, it is just to recognize the fact that Defendant 9 received a gold of KRW 1,00,000 from Nonindicted 2 in the Seocho-gu Office and the office of office around 16:00 as of October 1994, under the pretext of the case expenses as stated in the judgment of the court below, and there is no error of law by misconception of facts against the rules of evidence, such as the theory of lawsuit.

In addition, according to the records, the prosecutor submitted to the court of first instance a written application for the alteration of the indictment, which changed "16:00 on October 26, 1994, which is the date and time of the crime against the defendant as stated in the indictment on December 5, 1995, to "16:0 on October 26, 1994," which is the date and time of the crime against the defendant as stated in the indictment on December 5, 1995, and the court of first instance permitted the alteration of the indictment on December 15, 1995, and it was recognized that the defendant and his defense counsel did not raise any objection. Thus, there is no reason to discuss that the court below erred in recognizing a crime different from the facts charged without changing the indictment.

8. As to Defendant 10’s ground of appeal

According to the evidence duly admitted by the judgment of the court below and the court of first instance, it is sufficient to recognize the fact that Defendant 10 received a bribe over three times as stated in its judgment, and in light of the records, the confessions by the same defendant at the prosecutor's office are judged to be voluntary and reliable. Therefore, the judgment of the court below is not erroneous in the misapprehension of the legal principles as to job relationship and the Voluntary confessions

9. As to the grounds of appeal by Defendant 11, 12, and 13 by defense counsel

According to the evidence duly admitted by the judgment of the court below and the judgment of the court of first instance as cited by the court below, the facts constituting the crime against the defendant 11, 12, and 13 are sufficiently recognized and there is no violation of the rules of evidence such as the theory of lawsuit, nor there is any error

According to the records and the former Wholesale and Retail Business Promotion Act (Act No. 3896, Dec. 31, 1986) and other relevant Acts and subordinate statutes, the above Defendants, who have been in charge of the duties such as permission for the establishment of a large-scale retail store and reporting, establishment, repair, etc., are in accordance with the purport of permission for the establishment of a large-scale retail store and the internal policy of the administrative agency following such permission. Even if a large-scale retail store has already been permitted, if the establishment report is reported, an on-site confirmation is conducted to verify whether the facility standards are in conformity with the conditions as at the time of permission. According to the criminal facts duly established by the first instance court, the above Defendants prepared a false name statement as if they were directly conducted on-site investigation without any specific investigation, and accepted the above establishment report. Accordingly, the Defendants’ internal breach of duties should also be deemed to constitute an “unfair act in the course of performing duties” under Article 131(2) of the Criminal Act, and there is no reason to point this out.

10. As to the Prosecutor’s Grounds of Appeal

A. As to the part on Defendant 1

According to the reasoning of the judgment of the court below, the court below reversed the judgment of the court of first instance which found Defendant 1 guilty on April 23, 1990 and acquitted Defendant 1 on the ground that it cannot be deemed that Defendant embezzled the above money with the intent of illegal acquisition in light of the fact that Defendant 1 borrowed money in the form of "short-term loan" from Maung Construction, which is in fact a single-person company of the same defendant, and that the above money was clearly stated in the account book and subsequently repaid the principal and interest after the loan. In light of the records, the court below's disposition is just and there is no error of law that affected the conclusion of the judgment by erroneous selection of evidence by violating the rules of evidence, such as the theory of lawsuit, and

B. As to the part on Defendant 2 and 3

According to the reasoning of the judgment of the court below, the court below reversed the judgment of the court of first instance that found Defendant 2 guilty on December 4, 1989 and the facts charged that Defendant 3 received a bribe of KRW 10,000,000 from Defendant 1 on July 1, 1990 from the police officer on the ground that there is no evidence to acknowledge it. In light of the records, the court below's measures are acceptable and there is no error of mistake of facts due to the violation of the rules of evidence such as theory of lawsuit.

11. Therefore, all appeals by the Defendants and prosecutor against Defendants 1, 2, and 3 are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)