2015No176 Interference with work

A

Prosecutor

Park Jae-in detention (prosecution), shot iron, shottains (public trial)

Law Firm Sound

Attorney Park Jin-jin, Attorneys Shin Jin-jin, and Park Jong-chul

Gwangju District Court Decision 2014Gohap218 Decided February 12, 2015

July 21, 2015

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

Although the Defendant did not comply with the procedures and methods prescribed in the relevant Acts and subordinate statutes and the bylaws of D (hereinafter referred to as D; hereinafter referred to as hereinafter referred to as 'D'), while conducting regular inspections of ships for E, he/she prepared and submitted a slope test report, inspection test report and inspection report as if he/she complied with them and conducted inspections, and thereby submitted the risk that the risk of interference with D's business has already occurred, the crime of interference with business is established against the Defendant and the Defendant's intentional interference with business is recognized.

The light project test, claiming that the Defendant had carried out the smuggling 1) is not considered to be a test having the same effect as that of the string test. Even if the two tests are the same, it is difficult to recognize that the Defendant had performed the appropriate light project with regard to the tights of the string.

Nevertheless, the judgment of the court below which acquitted the Defendant of the facts charged of this case is erroneous by misapprehending the legal principles and misapprehending the facts.

2. Determination

A. Summary of the facts charged in this case

1) The Defendant, as a ship inspector of D woodbs sub-chapter, conducted regular inspections on the introduction, expansion, and remodeling construction of E from October 2012 to February 2013, and had the results of the regular inspections conducted by D woodbs sub-chapters and headquarters, report the truth to the D woodbs sub-chapters and headquarters, so that D’s operations, such as D’s ship inspection, etc., can be performed without defects, but, as described in paragraphs (a) to (d), falsely prepared and reported the results of slope test, check check list and inspection report.

A) Regarding slope test

A shipowner shall maintain the restitution of a ship in accordance with the standards determined and publicly notified by the Minister of Oceans and Fisheries, and submit data about the restitution of the suitability thereof to obtain approval from the Minister of Oceans and Fisheries. In case of subparagraph (e), since a shipowner under subparagraph (e) has undergone an inspection from D, a government vicarious inspection agency, the owner of the ship under subparagraph (e) (hereinafter referred to as "F") shall obtain approval from D.

In order to calculate the restitution of a ship in accordance with Article 4 (1) 1-3 of the Vessel Restoration Standards (No. 2013-76 of the Ministry of Oceans and Fisheries notice), a slope test shall be conducted, and the ship inspection officer shall supervise whether such slope test is conducted in accordance with the relevant guidelines, and verify whether the test results are accurately measured and recorded (D restitution test guidelines), and the basic data for calculating the restitution, such as weight, weight, and horizontal volume are different depending on the slope test results, and accordingly the goods weight, horizontal volume, etc. are determined.

Therefore, before commencing a slope test, a ship inspector shall accurately measure the capacity of each tank through ① stringing the capacity, ② verify and record the weight and location of each relevant item on the basis of the list of items to be reconstructed, and the number and location of each item on the basis of the items to be reconstructed (5) and the list of items to be reconstructed (6) before completing a slope test, ③ measure the draft (frack, drack) before conducting a slope test, the measured draft shall be re-verification after a slope test, ④ check whether the results of the test included in the slope test are the accurate test results during the slope test, and sign the slope test report (the preparation preparation items in attached Table 10, the guidelines for DNA restoration test).

Nevertheless, on January 24, 2013, the Defendant: (a) supervised a slope test that is being pending at the Thynam-do located in the Thynam-si, in which K representative L is proceeding; (b) did not confirm the capacity of each tank through crowdfunding; (c) did not confirm at all the weight and location of the items to be loaded at the time of completion of the vessel; (d) did not confirm whether the draft measured before the slope test is maintained after the slope test; and (d) without verifying whether the result of the test included in the slope test is the result of the slope test, the Defendant did not confirm whether the slope test was actually measured after the slope test, and immediately after the slope test submitted the slope test by calculating the stability of subparagraph E; and (d) obtained approval approval from the K headquarters by submitting the slope test to the effect that “I participate in the slope test at the time of completion of the vessel and verified the 3rd test,” and then sent the results of the test to the 19or 20th of the 2nd test.

B) Regarding the examination of a loading passenger device

With respect to a load-type boarding device (MES9), if an enterprise equipped with certain human resources and facilities and passed an inspection conducted by the Minister of Oceans and Fisheries as an excellent maintenance business entity, the enterprise shall be deemed to have passed the inspection conducted by D and D shall be deemed to have passed the inspection conducted by the Minister of Oceans and Fisheries, and D shall issue a ship inspection certificate by adding the results of other inspection items (Article 20(10) of the Ship Safety Act).

A ship inspector shall, upon receipt of an application for inspection for the maintenance of a river system, verify whether the place of inspection is designated as an excellent maintenance business entity, and submit the maintenance records after thoroughly verifying the validity period, inspection records, etc. of the design, and shall take on-site measures and report the details thereof to the government agency team of the headquarters D (Guidelines related to the dgrick log raft).

Nevertheless, the Defendant received a report on the maintenance of a river-type boarding device from M&A (hereinafter referred to as “M”) with respect to a river-type boarding device while conducting a ship inspection of E around December 24, 2012, and did not verify whether the aforementioned company is designated as an excellent maintenance business entity for a river-type boarding device (Korean government vicarious inspection table, CHECK LTOTOTUTR YFR) while submitting a report on the maintenance of a river-type boarding device with respect to a river-type boarding device designated as an excellent maintenance business entity.

A false pass is marked to the effect that there is no error in the column for the inspection of rainfall board equipment in the KOREN GVNNMNT, and the report of inspection written falsely as if it passed all inspection items around February 2013 and submitted it to D woodpo Branch.

C) relating to pre-slight shielding examinations

Passenger cargo ships ("Rl-On/Rl-Off Fry, one name Ro-Ro Fry," which are capable of loading and unloading passengers, such as E, must check whether smuggling is maintained so as to prevent water from entering the stern light, and the ship inspector must check the smuggling of the tail light in a way that it has the same effect as D, check, or other equivalent effects at the time of regular inspection (D, Checcking Sury 205).

Nevertheless, from October 2012 to February 2013, the Defendant indicated a false pass to the effect that the check is no longer in the field of blurging inspection without carrying out the ice test or other inspections having the same effect as the ice test while carrying out a ship inspection between October 2012 and February 2013. On February 2013, the Defendant submitted a false pass report along with the inspection report stating as if the Defendant passed all the inspection items.

D) Regarding the entrance door of the fourth passenger room and the extension inspection of the fifth floor exhibition room

D Where a ship intended to be registered is to be remodeled that affects the performance of a ship, a design drawing shall be submitted to D before commencement of the construction work and shall be inspected by a ship inspector during the construction work (D 2014 advance payment and lecture Rules 101.3.), and the ship inspector shall verify, record, and manage the drawings and materials examined by D headquarters as pointed out (D existing procedures for inspection of ship under 6.1.6).

Nevertheless, the Defendant, while conducting a ship inspection between December 2012 and February 2013, while conducting a ship inspection of subparagraph E, extended the entrance to the fourth passenger room or changed the location of the entrance to the fourth floor differently from the drawings approved by D headquarters, and neglected the construction of a large central structure to display photographs in the fifth floor display room without any restraint or corrective measures, and neglected the construction of a normally expanded construction in accordance with the approved drawings as if the construction was normally performed in accordance with the approved drawings. As such, the Defendant’s residence in the physical list (Korean Government’s inspection check sheet, CHK LITROTR MUTR REGENENT)

In addition, after making a false pass label to the effect that the sanitary equipment, etc. was not abnormal in the verification column, it was submitted to the D Bapo Branch along with a false inspection report stating as if it passed all inspection items around February 2013.

2) Ultimately, D issued a ship inspection certificate for F E on February 12, 2013, based on the inspection report, on the results of the slope test on which the Defendant falsely entered and indicated, the inspection physical list (the inspection table on behalf of the Korean Government, CHECSOTUTOTRY KSGENENT), the inspection physical list, the inspection physical list, and the inspection report.

3) As such, the Defendant interfered with D’s ship inspection, approval of design drawings, and issuance of ship inspection certificates by fraudulent means.

B. Relevant legal principles

In the crime of interference with business through deceptive scheme, the crime of interference with business refers to causing mistake, mistake, or land to the other party in order to achieve “the purpose of the act” (see, e.g., Supreme Court Decision 2013Do5117, Nov. 28, 2013). The criminal intent of interference with business does not necessarily require the intention of interference with business or planned interference with business, but it should be understood or predicted that there is a possibility or risk of causing interference with another person’s business (see, e.g., Supreme Court Decision 2012Do3475, Jan. 31, 2013). Therefore, in order for the accused to be recognized as a criminal of interference with business through deceptive scheme, the criminal intent of interference with business should not be readily determined that the Defendant was aware that the items stated in the E slope test report, check list and inspection report were false, or that the aforementioned items were based on false data measured at the time of the inspection, and thus, the Defendant prepared a detailed provision for interference with the Defendant’s regular inspection procedure.

Furthermore, as in this case, it is necessary to recognize more strictly the victim's position that the victim (D) has no interference with his duties due to the defendant's act.

C. Parts related to slope test

1) The judgment of the court below

The lower court determined that it is difficult to recognize that the Defendant was aware that the details entered in the slope test result are false, or that there was an intention to interfere with D’s work, by taking into account the following circumstances: (a) the Defendant did not follow the procedure prescribed in the relevant regulations concerning the slope test by directly measuring only some items while participating in the slope test and confirming the accuracy of measurement data measured in advance; (b) it is difficult to recognize that the numerical value of measurement data, such as the capacity of each tank measured by L, etc., the load of the load and the load of the load, etc. at the time, or that there were circumstances to suspect L’s measurement result, etc., or that it is difficult to recognize that the result of the slope test was different from the fact or wrong.

2) The judgment of this Court

Examining the circumstances, such as the reasoning of the lower judgment duly adopted and examined by the lower court in light of the legal doctrine as seen earlier, the lower court’s determination is justifiable and did not err by misapprehending the legal doctrine as seen earlier (see, e.g., Supreme Court Decision 2006Da15448, Apr. 2, 2006). Accordingly, the Prosecutor’s assertion on this part is rejected.

D. The part pertaining to the examination of a loading boarding device

1) The judgment of the court below

The lower court determined that it is difficult to recognize the Defendant’s perception that the part relating to the mouth boarding system in the examination is false, or that there was an intention to interfere with D’s business, on the basis of the fact that M was not designated as an excellent maintenance business entity, while recognizing the fact that M was not designated as an excellent maintenance business entity, based on the result of the examination conducted by M with respect to the rainfall boarding system under subparagraph E and the fact that it is difficult to recognize that there was an intention to interfere with D’s business.

2) The judgment of this Court

Examining the reasoning of the lower judgment in light of the legal principles as seen earlier, the lower court’s determination is justifiable and did not err by misapprehending the legal principles as seen earlier (Article 12 of the Ship Safety Technology Authority) and stated that AX, the chief of AW, stated that there was no experience in conducting an inspection of an ad hoc boarding device in this court). Accordingly, the Prosecutor’s assertion on this part is rejected.

E. The part pertaining to the examination of smuggling with a light lamps

1) The judgment of the court below

According to the witness P’s statement which participated in the inspection under subparagraph 1, the lower court determined that the Defendant failed to pass the inspection under the following circumstances: (a) in full view of the following circumstances: (b) there is no provision that the Defendant could acknowledge that the Defendant had performed the light project on the line lamps at the time of conducting the inspection under subparagraph 1; (c) there is no provision that the light project test conducted by the Defendant cannot be readily concluded that the light project is not the same as the light test; (d) the light project and the light test may be deemed the same as the light test when the light project was conducted in the shield test; and (d) the Defendant entered the result after examining the shield of the light project through the light project and the light project, and thus, it cannot be recognized that the Defendant made a false statement that the Defendant did not have any abnormal in the light project in the light test column; and (b) there is no intention to obstruct or interfere with the Defendant’s business affairs.

2) The judgment of this Court

Examining the circumstances in light of the legal principles as seen earlier, the lower court’s determination is justifiable and did not err by misapprehending the Prosecutor’s assertion, on the ground that it is difficult for the Defendant to conclude that there was an error in the smuggling of the stern light at the time of conducting a regular inspection of the vessel under subparagraph (e), including that F was judged to have been suitable with the stern light in the interim inspection under subparagraph (e) conducted around February 2014, along with the reasoning of the lower judgment duly admitted and examined by the lower court. Accordingly, the Prosecutor’s assertion on this part is rejected.

F. The entrance doors of the fourth passenger room and the part related to the extension inspection of the fifth floor exhibition room

1) The judgment of the court below

The lower court determined that it is difficult to recognize a false pass label to the effect that: (a) the Defendant had never known the fact that the number of entrance doors was different from the drawing at the time of conducting the inspection of subparagraph (e); (b) the Defendant had never known the extension of entrance doors at the time of the inspection; and (c) the Defendant could not have anticipated that the central structure was installed in the five-story exhibition room by general drawings and the land inside the time of the inspection; and (d) the location of the entrance doors of the fourth-story passenger room was expanded or changed differently from the drawing approved by D headquarters; and (e) the construction of the central structure in the five-story exhibition room would have been conducted without giving corrective instructions despite being aware of the fact that the central structure was installed in the five-story exhibition room, it was difficult to recognize that the Defendant had passed a false pass label to the effect that there was no column of confirmation, such as the dwelling of the body list and sanitary equipment in the inspection room.

2) The judgment of this Court

Examining the reasoning of the lower judgment in light of the legal principles as seen earlier, the lower court’s determination is justifiable and did not err by misapprehending the legal principles as seen earlier. Therefore, the Prosecutor’s assertion on this part is rejected.

3. Conclusion

Since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, judge and deputy judge;

Judges Gin Sung-ju

Judges Secretary-General;

(i) means a motor vehicle or a slope for loading cargo;

2) In a state where a line lamps is completely closed, an inspection is to verify whether water flows out of the door by spraying water with a certain water pressure outside the door.

3) Article 4 (Examination of Reinstatement) (1) To calculate the stability of a ship, the following tests of restitution shall be conducted: Provided, That the dynamic test in subparagraph 2 may be omitted if it is possible to calculate the breadth of a ship by the formula set out in Article 13.

1. A slope test measuring matters necessary for calculating the weight-centered location of the ship by crossing the ship;

2. East test measuring matters necessary for calculating the crossing of a ship by mooring the ship;

4) The method of measuring the height of the surface of the water by putting the tank scoody in the tank (scoody) into the tank.

5) 'Adddd item' is an item to be loaded on a ship on the premise of completion, such as wood, panel, de factoing, or fishing, and must be added when calculating the quantity.

6) 'Deduced item' is not called item. When the ship is not loaded on board, such as tools, waste, etc. used in the construction as well as liquid stay, such as flat trees, fuel oil, and Cheongwater, it must be deducted when calculating the quantity of the ship.

7) It is the basis for the calculation of the quantity of distribution as the vertical distance between the depths of repair and hulls.

8) As a result of slope testing, the Defendant stated “Aturd and ver-eat A Mokpo office A 24. JN 2013” on the first page.

9) It is called "Chute" and is the escape equipment of crowdfunding that helps passengers safely get off decks at the time of emergency.

10) Article 20 (Designation of Designated Place of Business) (1) A person who manufactures or maintains ship articles or small ships determined and announced by the Minister of Oceans and Fisheries may be designated as a designated place of business or designated maintenance business (hereinafter referred to as a "designated place of business") from the Minister of Oceans and Fisheries.

(2) omitted.

(3) Any ship's stores or small ships which have passed the standards for self-inspection under paragraph (2) after manufacturing or maintaining them at a designated place of business designated by the Minister of Oceans and Fisheries under paragraph (1) shall be deemed to have passed an inspection first conducted a shipbuilding inspection or ship inspection.

11) The Defendant was subject to the instant disciplinary action from D for three months of salary reduction.

12) It is an institution in charge of government agency inspection for ships together with D.