2015 Highly Injury by gross negligence 1052

Kim XX (70 - 1), other employees

Housing Jung-gu Seoul Metropolitan Government Myeonc-dong

Mancheon-won (prosecutions) and Mahee-hee (Public Trial)

[Defendant-Appellee] Plaintiff 1 and 3 others

October 21, 2015

Defendant shall be punished by imprisonment without prison labor for ten months.

Facts of crime

The defendant is the owner of a multi-household house with approximately 8 meters high in height in Jung-gu Seoul Metropolitan Government (second floor, second floor) and is living in the second floor of the above house.

The above multi-household house has a fixed-type steel stairs leading to the above roof in the 2nd floor bend floor of the house in which the defendant is living. On the edge of the above roof, approximately 16 cms are installed, and there is no substantial height railing or safety facilities corresponding thereto that can prevent people from falling.

In such cases, in consideration of the possibility of access to the above roof of a person, such as where the above steel stairs are installed, the defendant has a duty of care to prevent access to the above roof, except in extenuating circumstances such as construction, and to take corrective measures against the above roof such as prohibition of access by the person, such as prohibition of access by the person to the above roof.

Nevertheless, even though the defendant knew that he was frequently on the second floor of the above house with the son Kim Jong-si (12 years old) who was the sixth grade of the Pyeongtaek elementary school, he did not have a high height of a rail or a safety facility corresponding thereto at the edge of the above roof, and did not take corrective measures in the above steel stairs.

In addition, at around December 25, 2012: around 00, the Defendant was aware of the fact that he was playing on the second floor of the above house with the son Kim Jong-si (Age 12), who was the sixth-year elementary school (Age 12), Kim Jong-si (Age 12), and the victim Lee ○○ (age 12), but did not take such measures as above, and did not significantly neglect the above duty of care, such as not giving considerable attention to prevent them from having access to the roof.

Ultimately, the Defendant, through the above gross negligence, caused the victim, who was enrolled on the roof through the above steel stairs, to suffer from approximately eight meters away from the edge of the above roof, and the number of treatment days cannot be known.

Summary of Evidence

1. Defendant's legal statement;

1. Each police statement on A, B, Kim, Kim Jong-si, and Lee ○○;

1. Each statement of C, D, E, F, G, and H;

1. Each medical certificate, certificate of entrance and discharge, certified copy of resident registration, and certificate of medical record;

1. Investigative report (Attachment to On-Site photographs), ten copies of on-site photographs, and four photographs at the time of an accident;

1. An investigation report (Attachment to a register, etc. of a register of a field building), general building register, each certified copy of the register, land use plan, photographs, such as iron stairs, including civil petitions, civil petitions, summary of principal registration matters, investigation reports (verification of rail height regulations), regulations on standards, etc. of housing construction, investigation reports (Attachment to the provisions applicable to railing installation), and Enforcement Decree of the Building Act;

1. Application of the investigative report (the death of a victim and attachment of records of change), death certificate, photograph of a dead person, 29 photographs of a deceased person, and written autopsy and appraisal report to the Acts and subordinate statutes;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 268 of the Criminal Act; Selection of imprisonment without prison labor

Judgment on the argument of the defendant and defense counsel

The defendant and his defense counsel are not guilty because there is no gross negligence on the part of the defendant, or even if there is negligence on the part of the defendant, the causal relationship between the victim's injury is difficult to be recognized.

The gross negligence refers to a case in which an actor could have predicted the occurrence of a result by extremely minor care, but it could not be predicted due to the negligence, so the distinction between gross negligence and the progress room is a problem to be decided in consideration of social norms in a concrete case.

In this case, the health unit, ① the building owned by the defendant (hereinafter referred to as the "building of this case").

은 2층 높이 평스라브 지붕으로서 원래는 옥상이 별도로 없었던 점, ② 건축법령 등 관계규정에 의하면, 2층 이상인 층에 있는 노대 ( 露臺, 2층 이상의 양옥에서, 건물 벽면 바깥으로 돌출되어 난간이나 낮은 벽으로 둘러싸인 뜬 바닥이나 마루 ) 등 주위에는 높이 1. 2미터 이상의 난간을 반드시 설치하여야 하는 점, ③ 상식적으로 생각해보아도 2 층 건물의 옥상 ( 3층 바닥면 높이 ) 에 난간이 없다면 갑자기 돌풍이 불거나 눈 등으로 미끄러져 중심을 잃을 경우 옥상에서 추락할 수 있음을 쉽게 예견가능한 점, ④ 피고인은 2000. 7. 4. 이 사건 건물을 매수하였는바, 매수당시에 이미 불법으로 구조변경되어 옥상이 설치되어 있었고 옥상에는 무릎높이의 기와형태로 된 난간이 설치되어 있었는데, 피고인이 2012. 10. 경, 즉 이 사건 사고 발생 2개월 전 즈음에 집 전체를 리모델링하는 도중 옥상의 난간을 뜯고 방수작업을 하면서 사고당시와 같이 지붕의 가장자리에 약 16cm 상당의 턱만 남겨놓고 난간을 모두 철거하였던 점, ⑤ 피고인은 이 사건 옥상의 전체를 16cm 정도의 턱으로 마무리 한 것도 아니고 일부 구간은 상당한 높이의 시멘트난간을 설치하여 두었는데, 이는 피고인 스스로도 일부 구간에 대하여 추락 위험을 감지하였기 때문인 것으로 보이는 점, ⑥ 피고인이 거주하던 2층 거실에서 옥상으로 올라가는 문과 철제계단이 설치되어 있었고 피해자를 비롯한 아이들은 이 사건 건물 옥상에서 자주 놀았음에도 불구하고, 피고인은 옥상방수 공사 기간을 제외하고는 평소 아들에게 옥상에 올라가지 말라는 주의를 주지도 아니하였던 점, ⑦ 옥상에 올라가 놀았던 피해자 등 아이들의 연령은 12세로 초등학교 6학년에 불과하였던 점 등을 고려하면, 피고인은 ' 옥상에 난간을 설치하지 않으면 추락사고가 발생할 수 있다 ' 는 쉽게 예견가능한 사실을 사소한 부주의로 간과하여 별도의 난간을 설치하지 아니하였고 , 기존에 존재하던 난간마저 철거한 과실 등으로 인하여 이 사건 사고가 발생한 것으로 인정할 수 있으므로, 피고인에게 중과실을 인정할 수 있다. 따라서 피고인 및 변호인의 주장은 받아들이지 아니한다 .

Although the defendant and his defense counsel are arguing that there is no causation, the above assertion is rejected, since it seems that if a rail exists on the rooftop, the victim could have prevented the fall.

The reason for sentencing was that the victim fells on the defendant's her mother and the defendant's house and suffered serious injury, such as double alleys and inner alleys, etc., and that the victim suffered death by concurrent operation in the hospital, resulting in the victim's parents did not completely endeavor to recover from damage on the ground that the victim's parents filed a large amount of lawsuit against the defendant on February 21, 2013. The victim's parents filed a lawsuit against the defendant on February 28, 2013, upon receiving the above complaint on March 6, 2013, the court below accepted the right to collateral security as of March 6, 2013 and received the complaint on February 28, 2013, thereby impairing the defendant's ability to repay the building in question, thereby making the provisional seizure on the part of the victim immediately thereafter made it inevitable for the victim to do so. The victim did not pay damages to the present day, considering the fact that the victim's parents suffered severe punishment for the defendant.

However, at around 195, the Defendant was sentenced to a suspended sentence of one year for a crime of violation of the Specific Crimes Aggravated Punishment Act (a flight vehicle), etc., and was sentenced to a fine of 300,000 won for the crime of causing property damage in 2008, there is no particular criminal record except for the Defendant’s age, character and conduct and environment, motive, means and consequence of the crime, and the conditions of sentencing specified in the arguments of this case, such as the circumstances after the crime, etc.

Judges Park Jin-jin