2010No3254 Injury by occupational negligence

(1) The Public Notice (77****** 2*******) the proceedings

Residence, Busan Shipping Daegu or lower-level omitted

2. Omission below the Gyeongbuk-gun in the place of registration

Prosecutor

(2) Number of days below

Busan District Court Decision 2010 High Court Decision 689 Decided August 18, 2010

May 3, 2011

The part of the judgment of the court below against the defendant shall be reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

According to the evidence submitted by the prosecutor, although the defendant suffered injury from the victim due to occupational negligence, the court below acquitted the defendant on the ground that it is difficult to view that the defendant has a duty of care to directly supervise the act of self-ray treatment, which affected the conclusion of the judgment by misapprehending the legal principles.

2. Determination

A. Ex officio determination

Before the prosecutor's judgment on the grounds for appeal, the prosecutor examined ex officio prior to the prosecutor's appeal, and the prosecutor's charge against the defendant in the trial at the trial at the trial at the court of the trial, and the defendant works in the Mediet Mediet.

12. 24. 18: At the above hospital around 30: Around 30, the hospital treated the victim’s $$48 (e.g., 48 years of age), the patient’s disease, and ordered % of the nurse’s nurse to provide a prescription for out-of-the-counter treatment with the 420mJ value at the 420mJ. In this case:

The Defendant, as a patient, may kid a victim’s own image due to an out-of-the-counter treatment machine, notified the risk of the treatment machine to take part in the patient’s own after one minute of the treatment period. Furthermore, the Defendant is responsible to confirm and supervise whether the victim is treated in accordance with the order of prescription by % of the assistant nurse, whether the % of the assistant nurse is not mistakenly entered, and whether the ray is not mistakenly entered. Although the Defendant has a duty of care to set the limit (1~2% of the limited hours) on the input value of the outside-of-the-counter treatment machine in order to prevent risks in advance, the Defendant neglected this and neglected the victim to take part in the treatment by 420m J. in the treatment of the victim by operating the outside-of-the-counter treatment machine, which is a medical machine, and neglected the victim to take part in the treatment by misunderstanding the victim’s number of treatment machine’s 420mJ. The Defendant applied for a change in the contents of the amendment.

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

Even if there are such reasons for ex officio reversal in the lower judgment, the Prosecutor’s assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of the lower court, and this is examined (1).

The court below held that each act of a nurse or assistant nurse does not require a physician to be present at the site and to guide and supervise daily, and as a case may be sufficient for a physician to conduct general guidance and supervision without requiring a presence at the site of assistive activities for medical treatment. Whether an act of assistive activities constitutes an act of assistive activities can not be determined uniformly according to the type of assistive activities, and in concrete cases, the court below should separately determine whether an act of assistive activities may follow risks, side effects, or post-treatment due to the objective characteristics of the act, the patient’s situation at the time, the quality and skill of the nurse at the time, and what degree of care is (see, e.g., Supreme Court Decisions 2005Do674, Dec. 7, 2006; 201Do3667, Aug. 19, 2003) based on evidence duly examined.

It is difficult for the Defendant to take charge of treatment of the non-permanently using the 420m self-treatment method, and the non-permanent treatment method of the non-permanent treatment method of the non-permanent medical doctor to clearly understand the non-permanent treatment method of the non-permanent treatment method of the non-permanent medical doctor or the non-permanent treatment method of the non-permanent treatment method of the non-permanent medical doctor, and the non-permanent treatment method of the non-permanent treatment method of the non-permanent treatment method of the non-permanent treatment of the non-permanent medical doctor is difficult to take account of the non-permanent treatment method of the non-permanent treatment method of the non-permanent treatment. The non-permanent treatment method of the non-permanent treatment method of the non-permanent treatment of the non-permanent medical doctor, the non-permanent treatment method of the non-permanent treatment method of the non-permanent treatment method of the non-permanent treatment of the non-permanent medical doctor, and the non-permanent treatment method of the non-permanent treatment method of the non-permanent treatment method of the non-permanent treatment method of the non-permanent.

In light of the records, a thorough examination of the evidence of this case is justified.

(2) Examining the evidence of this case in light of the record as to whether the defendant violated the duty of explanation on the risk of the treatment apparatus of this case (A) to be added in the trial, the victim received two times a week from July 31, 2009 to December 24, 2009 the treatment of this case. (2) The treatment time of this case was approximately 300 - 450mJ’s prescription order for each time. (3) The treatment time of this case was determined as 50 seconds and 1 minute The treatment time of this case was automatically adjusted from the machine, and it is difficult to find the defendant that there was no other evidence that the treatment equipment of this case was not subject to the duty of explanation on the treatment equipment of this case. (4) The treatment time of the treatment equipment of this case should be determined as 1% or less of the treatment equipment of this case, and there was no other evidence that the treatment equipment of this case was not subject to the duty of explanation on the treatment equipment of this case. (5) The treatment equipment of this case can be acknowledged as the treatment equipment of this case.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The summary of the facts charged in this case is the same as the description of the corresponding part of the above 2-A, which constitutes a case where there is no proof of crime as stated in Article 2-2-2 (b) of the above, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure

Justices Kim Hyun-hwan

Judges Lee Lee Jae-chul

Judges Maximum Beneficiaries