The case holding that a contractor who requested the repair of a house does not bear a duty of care to take safety measures necessary for the construction work.

The case holding that the contractor cannot be deemed to have a duty of care to take safety measures for the construction work, on the ground that the contractor is in a position to manage and supervise the construction work, or that the contractor is not in a position to specifically direct and supervise the construction work or individual work for the housing repairer or the construction business operator or the human body in the course of performing the construction work, and the contractor cannot be deemed to have a duty of care to take safety measures for the construction work.

Article 268 of the Criminal Act

Defendant

Defendant

Law Firm Daegu General Law Office (Attorney Lee Ho-ho, Counsel for defendant-appellant)

Daegu District Court Decision 9No1837 delivered on June 29, 2000

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

1. Fact-finding and judgment of the court below

According to the judgment of the court below, the court below acknowledged the construction cost of the above building as to the defendant's work site and managed the situation of the construction work directly or through co-defendant 1 in the court below's decision, and decided on February 27, 1998 and ordered two other co-defendant 1 to remove indoor tent in the above construction site by considering the situation that the defendant would have to take measures so that the above building would not collapse because he would have to take work without fault due to considering the fact that the defendant would break out the above building's work site with the defendant's work site, and that the defendant would have to take measures to remove the construction cost of the above building site after considering the fact that the defendant would have ordered co-defendant 1 to take measures to remove the construction cost of the above building site with the defendant's work site after covering the victim who would have carried out the above building site with the defendant's work site and by considering the fact that the defendant would have to take measures to remove the construction cost of the above building site through consultation with the court below's decision.

2. However, we cannot agree with the fact-finding and determination by the court below in the following respects:

In light of the evidence duly examined and adopted by the court of first instance and the court below, the defendant is a family owner with no expert knowledge about the above house repair work. Co-defendant 25-13 of Daegu Metropolitan City, new design is a large number of houses specialized in housing repair work, such as apartment houses, etc., and Co-defendant 3 of the court below entered into a contract with the defendant on August 197 that he would repair the apartment house at the time of repair work, and the defendant would be responsible for the above construction work, such as an indoor decoration, and if he would be responsible for the above construction work to the above co-defendant 3 of this case or the above construction cost, he would be responsible for the above construction work, such as an indoor decoration, and if he would be responsible for the above construction work to the above co-defendant 4,600,000 won, and the construction cost of this case would be different from the construction cost of this case to the extent that Co-defendant 3 of this case's construction cost would have been agreed to do so at the time of calculating construction cost.

If the facts are as above, the management and supervision of the project of this case or the execution of the project of this case, the specific work instruction and supervision of construction business operators or human parts by field are entrusted to co-defendants in the court below. The defendant is in the position to manage and supervise the project of this case, or it is not deemed that the defendant is in the position to specifically instruct and supervise the construction business of this case or individual work of construction business operators or human parts by field, and therefore the defendant has a duty of care as stated in the judgment of the court below.

As recognized by the court below, even if the defendant ordered Kim T-soo to remove the part at the construction site of this case or the construction site of this case was directly negotiated with construction business operators for each field and set construction cost for each field, or had visited several sites during the construction site of this case and talked about safety issues arising from the collapse of the building between Co-defendants and the court below, in light of the above facts, such facts alone do not constitute the defendant with a duty of care as stated in the judgment of the court below.

Nevertheless, the judgment of the court below which found the above charges guilty is erroneous by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles on Article 268 of the Criminal Act, which affected the conclusion of the judgment.

3. Therefore, 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 Song Jin-hun (Presiding Justice)