The case holding that there is a proximate causal relationship between the negligence in violation of the construction engineer assignment duty under the Construction Business Act and the gas explosion accident occurred in the course of laing construction to prevent ground subsidence on adjacent fire-fighting roads in the construction site.

The case holding that there is a substantial causal relationship between the gas explosion accident and the gas explosion accident that occurred in the course of the construction site to prevent ground subsidence of adjacent fire-fighting roads adjacent to the construction site, in the absence of a construction engineer to dispatch a person capable of performing actual supervision to a construction supervisor, in violation of Article 33 of the Construction Business Act and Article 36 (2) 2 of the Enforcement Decree of the Construction Business Act, while the constructor did not dispatch a construction engineer as stipulated in Article 33 of the Construction Business Act and the construction engineer's duty to assign a construction engineer

Article 268 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995); Article 33 of the Construction Business Act

Defendant 1 and four others (Attorneys Park Jae-sik)

Defendant and Prosecutor

Law Firm Hung, Attorneys Noh Jeong-soo et al.

Daegu High Court Decision 95No692 delivered on February 14, 1996

Of the judgment of the court below, the part of not guilty as to Defendant 1's occupational injury, injury by occupational negligence, and explosives by occupational negligence is reversed, and that part of the case is remanded to the Daegu High Court. The Prosecutor's appeal against Defendant 2, 3, 4 and the appeal against Defendant 2, 3, and 5 are all dismissed.

1. We examine the grounds of appeal by Defendants 2, 3, and 5.

A. As to the violation of the Road Act by the above Defendants

According to the reasoning of the judgment below, the court below decided that the non-indicted corporation should complete the construction work on the instant fire-fighting road before moving to another construction site without obtaining permission to occupy and use the road, and that the non-indicted corporation did not obtain permission to occupy and use the road on the instant fire-fighting road and submit the application, report, or other documents from the defendant 5 corporation to the government office in relation to the construction project. Co-defendant 1 and Co-defendant 2 of the court below agreed that they shall obtain approval from the defendant 5 corporation and report the result as soon as possible. Co-defendant 2 of the court below did not obtain permission to occupy and use the road on the instant fire-fighting road, and that the non-indicted Co-defendant 2 of the court below did not obtain permission to occupy and use the road on the instant road before moving to the above construction site, or did not obtain permission to occupy and use the road on the instant fire-fighting road without obtaining permission to occupy and use the road on the grounds of the instant fire-fighting road, in light of the purport of the court below's decision and approval of the above.

B. As to Defendant 2’s taking of property in breach of trust

Examining the records of this case, the court below recognized the fact that Defendant 2, who is in the position of supervising the subcontractor, is not able to receive money, valuables, and entertainment in its holding to the effect that it may continue to receive orders from other public corporations in the future, and it is just to determine that such solicitation constitutes an illegal solicitation contrary to the social rules or the principle of good faith even if it is implied, and thus, found Defendant 2 guilty of the receipt of property in breach of trust as it constitutes an illegal solicitation contrary to the rules of society or the principle of good faith, and there is no error of law by misunderstanding facts against the rules of evidence, such as the theory of lawsuit, or by misunderstanding the legal principles as to the receipt of property in breach

2. We examine the Prosecutor’s grounds of appeal as to Defendant 1, 2, 3, and 4.

A. As to Defendant 1’s ground of appeal

(1) According to the reasoning of the judgment below, the court below found Defendant 1 and the first instance court's statements at the construction site of this case as well as the evidence duly examined and adopted by the first instance court on the construction site of this case. The non-indicted stock companies holding a license for a specialized construction business such as bowling, Gaing construction, steel and concrete construction, soil construction, etc. The second instance court's order of contract for domestic rashing construction works, the sales amount of 194 exceeded 40 billion won, 36 employees at the construction site of this case, and the management system is up to 180 employees under the representative director's authority, and there is no specific and significant reason that the above representative's duty of care to report and supervise the construction site of this case to the chief executive officer of this case, and there is no specific and substantial reason that the officers of each division were not responsible for each of the above construction site of this case, and there is no specific and detailed reason that the officers of this case's duty of care to report and supervise the construction site of this case including new management manager, construction project plan and personnel management.

(2) Reviewing the records of this case, even if Defendant 1 was reported to perform the relevant hosting construction work on the instant fire fighting road, it cannot be deemed that the construction site of this case has a specific and direct duty of care to take various safety measures as stated in the judgment of the court below, even though there is a general and abstract responsibility to direct and supervise the employees of the non-indicted corporation. We agree with the judgment of the court below that the construction site of this case has a specific

(3) However, it is difficult to accept the judgment of the court below that there is no direct proximate causal relation with the explosion accident of this case and there is no evidence to acknowledge the negligence of the above defendant.

① Article 33(1) and (2) of the Construction Business Act provides that construction engineers shall assign at least one construction engineer qualified to manage the construction work at the construction site to ensure the management of construction work and other technical management, as prescribed by the Presidential Decree, and the construction engineer assigned to the construction site shall not leave the construction site without justifiable grounds unless they obtain the consent of the ordering person of the construction work. Article 36(2)2 of the Enforcement Decree of the Construction Business Act provides that construction engineers assigned to the construction site shall not leave the construction site without the consent of the ordering person. In the case of construction works at least five billion won (this case’s Saturdays and earth preventing construction work falls under its category), the construction engineer who has been engaged in the relevant field for at least five years after acquiring the qualification of class 1 of the construction site shall be assigned to the construction site as prescribed in Article 33 of the Construction Business Act. According to the records of this case, if Defendant 1 was selected as Nonindicted Construction engineer at the construction site equipped with qualifications under the Construction Business Act, and that the construction engineer at the construction site was assigned to the construction site of this case’s Kim Construction site of this case’s.

② The reason why the constructor, as above, bears the obligation to assign a construction engineer to a construction site is to ensure the proper execution of construction works by having the assigned construction engineer manage the construction work and manage other technical matters.

However, according to the records of this case, Co-defendant 2, who did not carry out the construction site of this case and carried out the construction site of this case on March 195. Co-defendant 2, who did not carry out the construction site of this case, agreed to do so at the site of Co-defendant 1 and its location, and notified Co-defendant 2, who did not carry out the construction site of this case, at the site of the court below. Co-defendant 4, who did not carry out the construction site of this case, as well as the construction site of this case. Co-defendant 2, who did not carry out the construction site of this case. Co-defendant 4, who did not carry out the construction site of this case, the construction site of this case and the construction site of this case, the construction site of this case, which had been located at the site of this case. Co-defendant 2, who did not carry out the construction site of this case, the construction site of this case and the construction site of this case, which had been located at the site of this case. The construction site of this case had not been carried out 9,

③ Furthermore, according to the records of this case, Co-defendant 2 of the court below (in particular, the statement at the court of first instance, the misunderstanding of the witness at the court of first instance, and the misunderstanding of the preparation of inspection in the court of first instance), the Daegu department store, the owner of the department store of this case, concluded a contract with the company for the design and supervision of the department store building of this case, and excluded the portion of geological research and soil conservation work (see the design and supervision service contract of 335 pages of the trial record). While entering into a subcontract with the non-indicted corporation, the company of this case, which was contracted for new construction of this case, the defendant 5, the subcontractor, the subcontractor, and the non-indicted corporation, the subcontractor, was responsible for the design, construction and supervision of the building, the non-indicted corporation, and the non-indicted corporation, the owner of the department store of this case, which was the owner of the building department of this case, agreed to the design and supervision of the building of this case, and did not report the construction supervisor's qualification to the construction work of this case to the Corporation.

④ Ultimately, even though Defendant 1 agreed to carry out supervision of the instant earth and earth facilities construction, it is reasonable to view that there exists a substantial causal relationship with the explosion accident in this case, inasmuch as Defendant 1 did not dispatch a person capable of carrying out substantial supervision to a supervisor, the negligence in violation of the duty to assign a construction engineer under the said Construction Business Act to a construction site, and did not assign a construction engineer to a construction site.

(4) Thus, the court below which acquitted Defendant 1 of the negligence not assigned a construction engineer (the original trial represents it as a construction site) under the Construction Business Act at the construction site of this case and there is no direct proximate causal relation between the explosion accident of this case and the accident of this case, and there is an error of law by misunderstanding the legal principles as to the negligence and proximate causal relation with Defendant 1.

B. As to the grounds of appeal against Defendant 2 and 3

According to the reasoning of the judgment below, the above Defendants’ statements and the first instance court found the above Defendants to have no capacity to directly conduct the construction work at the construction site, and Defendant 5, who was awarded a contract for the construction of the instant department store by the Daegu department store, did not have any technology and license for the said new construction work, and thus, Defendant 5 and soil-related construction work was ordered to subcontract en bloc to the specialized company. Under the independent judgment and technology of the non-indicted corporation, Daegu department store established the construction work and soil-related construction work for the purpose of efficient planning, construction, maintenance, and repair of the construction site across the country without any specific and reasonable ground-based instruction and supervision of the above construction site, and there was no further specific and reasonable ground-based instruction and supervision of the above construction site, and there was no further need to establish the building team, manufacturing team, and construction supervision team, as well as the general construction instruction and supervision of the above construction site, and thus, Defendant 2 were in charge of the construction work.

C. As to Defendant 4’s ground of appeal

In examining the records of this case, as seen in the judgment on the grounds of appeal against Defendant 1, supervision over the earth and sand removal work of this case agreed to take charge of the corporation, and it can be acknowledged that Defendant 4 did not have an obligation to conduct supervision over the above corporation. Thus, it cannot be said that Defendant 4 was negligent in relation to the explosion accident of this case.

In the same purport, the court below which acquitted Defendant 4 on the charge of occupational injury, occupational injury, and explosives in occupational negligence is just, and there is no violation of law such as theory of litigation. The arguments are without merit.

3. Conclusion

Therefore, the part of the judgment of the court below as to Defendant 1’s acquittal on the occupational negligence, injury by occupational negligence, and explosives by occupational negligence is reversed, and that part of the case is remanded to the court below. The prosecutor’s appeal against Defendant 3, 4 and all appeals by Defendants 2, 3, and 5 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)