Defendant 1 and one other

Defendant

Park Jae-hwan

Law Firm Doz., Attorney Park Jong-il

Chuncheon District Court Decision 2007Ma1210 Decided September 19, 2008

The judgment of the court below is reversed.

Defendant 2 shall be punished by imprisonment without prison labor for August and by a fine of KRW 3,000,00, and by a fine of KRW 2,000,00, respectively.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting each of 50,000 won into one day.

However, with respect to Defendant 2, the execution of imprisonment without prison labor shall be suspended for two years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) As to the violation of the duty of care

The victim ○○○ was not in a state of 0.270% of blood alcohol content at the time of entering the soup of the instant case. Rather, the victim did not take measures to make the normal use of public bath to the extent that it is difficult for the victim to use the bath. As such, Defendant 1 cannot be acknowledged as violating the duty of care for the victim’s entrance room because it is impossible for the victim to know whether the victim was under the influence of alcohol. Defendant 2 attached a notice prohibiting the victim from entering the ticket and the breath, and Defendant 2 took all safety-related measures, such as setting up a temperature at the ticket, and Defendant 1 had already been well aware of the matters regarding the prohibition of access by the drunk. As such, Defendant 2 cannot be acknowledged as violating the duty of care for the victim’s entrance room.

(2) Division of causation with breach of duty of care

In addition, the victim is in a soup, and through the latter part, the victim was frying and making soup through the latter part to the extent that he takes the drinking outside of the Defendants and the latter part, so even if there is a violation of the duty of care taken in a soup, even if the defendants were to be admitted, the brying person cannot be deemed to have died in the soup and so, the causal relationship between the Defendants’ breach of duty of care and the death of the case cannot be recognized.

B. Unreasonable sentencing

In light of the overall circumstances of this case, the sentence of the court below (Defendant 2: the suspended sentence of 2 years in August and the fine of 3 million won in the imprisonment without prison labor; Defendant 1: the fine of 2 million won in the case) is too unreasonable.

2. Determination

A. Ex officio determination

(1) Prior to the determination on the grounds for appeal by the Defendants, the Prosecutor applied for amendments to the indictment with the purport that “at least 23:00 on the same day, at the above 23:270% of the charges of occupational death and death, the Prosecutor does not control the victim’s kynas’s access to which the normal use of public bath is difficult due to the brying of 0.270% on the same day.” The Prosecutor applied for amendments to the indictment with the purport that “at around 23:00 on the same day, the victim’s kynasium cannot be controlled by the victim’s kynas access which is considerably difficult to use the public bath due to the brying of 23:0 on the same day.” Since this Court permitted this, the judgment below based on

(2) However, inasmuch as the Defendants’ grounds for appeal claiming mistake of facts or misapprehension of legal principles against the judgment of the court below which found the Defendants guilty of the facts charged prior to the change are still subject to a party member’s determination within the scope of the modified facts charged, this shall be examined.

B. Judgment on misconception of facts or misapprehension of legal principles

The court below duly adopted and examined the following facts: ① the victim was allowed to take soup and make soup to the victim 1, and the victim was allowed to take care of the victim's body, ② the victim was no longer likely to take care of the victim's body, ② the soup and making soup to 7 p.m. employees were allowed to take care of the victim's body, ② the victim was no longer likely to take care of the victim's body, ② the victim was no longer able to take care of the victim's body, and the victim was no longer likely to take care of the victim's body, ② the victim was no longer able to take care of the victim's body, ③ the victim was no longer able to take care of the victim's body, and the victim was no more likely to take care of the victim's body, ④ the victim was no more likely to take care of the victim's body, and ④ the victim was no more likely to take care of the victim's body, and the victim was no more likely to take care of the victim's body.

In addition, even if the victim drying out of soup, soup was done through the door of the soup bank managed by the defendants, so long as it was caused by the control of access to the soup bank and the neglect of management, the causal relationship between the defendants' violation of the duty of care and the victim's death shall not be cut off (the defendant 1 discovered the victim at the 3rd half of the new wall, but the victim had already been under the influence of alcohol, but it was due to the death of the victim at any time during the new wall time during which the defendant 1 was easy to dry, which was caused by the employment of only one employee of the defendant 2. Accordingly, the defendants who operated and managed the soup box, which is a facility that may cause health damage under normal water surface, did not fulfill such duty of care even after managing the internal situation of the soup. Therefore, all of the defendants' arguments in misunderstanding of facts and misapprehension of legal principles are without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed ex officio under Article 364(2) and (6) of the Criminal Procedure Act, and the defendants' remaining arguments of unfair sentencing are reversed without proceeding to decide on the remaining arguments of unfair sentencing as follows.

The summary of the criminal facts and evidence of the Defendants recognized by this court is as stated in each corresponding column of the judgment of the court below, except for the correction of "at least 23:00 on the same day, at the sobry of 23:00 on the same day, without controlling the access of the victim ○○○○ who is difficult to normally use a bath due to the alcohol of 0.270% on the same day" to "at least 23:00 on the same day, the victim ○○ who is considerably difficult to normally use a bath is not controlled by the access of the bath," and therefore, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Defendant 2: Articles 268, 30 (the point of negligence in the line of duty, the choice of imprisonment without prison labor), 20(2)3, 4(7), and 21 of the Criminal Act (the point of violation of matters to be observed by a business operator)

Defendant 1: Articles 268, 30 (the point of negligence in the line of duty, the choice of fines) of the Criminal Act, Articles 20(2)3 and 4(7) of the Public Health Control Act (the point of violation of the code of practice by a business operator and the selection of fines)

1. Aggravation for concurrent crimes;

Defendant 2: the former part of Article 37 and Article 38(1)3 of the Criminal Act

Defendant 1: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Suspension of execution (Defendant 2);

Article 62(1) of the Criminal Act

The judgment of the court below is justified in light of the above legal principles. The judgment of the court below is justified in light of the above legal principles. The court below did not err in the misapprehension of legal principles as to the crime of this case. The court below did not err in the misapprehension of legal principles as to the presumption of free evaluation of evidence, as otherwise alleged in the ground of appeal. It did not err in the misapprehension of legal principles as to the presumption of free evaluation of evidence, as otherwise alleged in the ground of appeal. It did not err in the misapprehension of legal principles as to the presumption of free evaluation of evidence, as alleged in the ground of appeal.

Judges Jeong Jong-sung (Presiding Judge)