2014No268(a) Occupational Death, etc.

(b) Injury by occupational negligence;

1. (a) A;

2. (a) B

3.(a)(b) C

Defendant B and Prosecutor

Isathers (prosecutions) and trial for transfer;

Law Firm D (private ships for defendant A and C)

Attorney E

Law Firm F (private ships for defendant A and C)

Attorney G

Law Firm BU (LA)

Attorney BV, BW

Law Firm BX (SP for Defendant B)

Attorney 1

Seoul Central District Court Decision 2012 Godan4728 Decided January 7, 2014

February 12, 2015

All the judgment below is reversed.

Defendant A shall be punished by imprisonment without prison labor for one year; Defendant B shall be punished by imprisonment without prison labor for six months; and Defendant C shall be punished by imprisonment without prison labor for six months; Provided, That the execution of each of the above punishment against Defendants for two years from the date this judgment becomes final and conclusive.

1. Summary of the grounds for appeal;

A. Defendant B

(1) misunderstanding of facts or misapprehension of legal principles

Although the explosion accident of this case occurred due to the defect in boiler repair works and the defect of test driving, etc. (hereinafter referred to as “L”) and Defendant A’s fault and causation in relation to the explosion accident, the judgment of the court below convicting Defendant B of the facts charged, which erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

In light of the fact that the explosion of this case occurred from the structural problem of the NN agency, that the NN agency agreed with most victims, that the defendant B was automatically retired and the boiler handling technician's qualification is revoked if the suspension of execution is sentenced, etc., the punishment of the court below (6 months of imprisonment without prison labor and 2 years of suspended execution) is too unreasonable. (B) The prosecutor (the defendant A and C) is too unreasonable.

Comprehensively taking account of the evidence, although the crime of this case, such as the negligence of Defendant A and C, was recognized with regard to the explosion of this case, the court below erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of the judgment.

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged (alternatively charged)

(1) Defendant A, as an employee of the Korea National Research and Investigation Agency, was in charge of examining the test run and normal operation of boilers installed on the second basements of the NNE Sports Center underground in Seoul M; Defendant B was in charge of boiler management at the above sports center; Defendant C was in charge of boiler repair work; and Defendant C was in charge of the above boiler repair work.

At around 15:30 on February 17, 2009, the Defendants jointly conducted the test run and the normal operation management of the boiler as to whether the boiler normally works, after the completion of the repair of the connection with the boiler installed at the second floor of the said Sports Center and the repair of the customs work. However, in order to manage the test run and normal operation of the boiler, the Defendants were obliged to take necessary measures immediately when the boiler operator was found to participate in the test run and the test run of the boiler. However, the Defendants confirmed that the boiler operator was in the open state, and that the valve was no longer in the safety valve (safety side) and that the boiler operator was obliged to take necessary measures immediately when any malfunction, such as the suspension of water supply, is discovered while observing the abnormal operation of the boiler at the site.

Nevertheless, Defendant C instructed Defendant A, without any qualifications for handling boiler, to take charge of the test operation of the boiler above. Defendant A, without any qualifications, had Defendant A operate the boiler above in a closed state with no longer than the safety valves (safety valves). Defendant B, without observing whether there is any abnormal water supply at the scene of the boiler operation, suspended water supply, etc., and caused water supply to run the boiler above the boiler above, 3 weeks of the victim’s 6 weeks of treatment, such as 6 weeks of injury to the right-hand side of the boiler (safety valves) and 3 weeks of treatment, 6 weeks of the victim’s injury to the boiler, 3 weeks of treatment (such as 4 weeks of treatment, 3 weeks of treatment, 40 days of death from the victim’s ground and 47 weeks of treatment, and 17 days of death from the victim’s ground and 47 days of treatment, etc. of the said boiler’s injury to the right-hand side of the boiler.

(2) As a result of the appraisal by the Energy Management Corporation, Defendant A is an employee of the Lwest Vice Governor, who was in charge of the test operation and normal operation of the boiler installed on the second floor of the NW Sports Center underground in Seoul M, Defendant B was in charge of boiler management at the above sports center, Defendant C was in charge of boiler repair work, and Defendant C was the team leader of Lwest Vice Governor who was in charge of the above boiler repair work.

At around 15:30 on February 17, 2009, the Defendants jointly conducted the test run and the normal operation management of the boiler as to whether the boiler normally works on the two parts of the said Sports Center, after the completion of the repair of the relation of the boiler and the repair of the customs work, etc. on the two parts of the said Sports Center. However, in order to manage the test run of the boiler and the normal operation of the boiler, the Defendants should check whether the boiler operator was operating the counterfeited storage device in the state where the boiler operator participated in the test run and the test run. While the boiler operator was in operation, the Defendants had a duty of care to immediately take measures, such as the suspension of water supply, etc.

Nevertheless, Defendant C instructed Defendant A, without any qualifications for handling boiler, to take charge of the test operation of the said boiler. Defendant A, while running a test without any qualifications, did not check the normal operation of the relevant water saving unit while operating the boiler. Defendant B, upon operation of the said boiler, did not protect the victim’s injury at the site of operation of the boiler, and caused the victim’s injury to the right-hand side of the said boiler to be treated (3rd-time treatment of the 6th anniversary of the said boiler, 3rd-time treatment of the 6th anniversary of the said building, 6th anniversary of the victim’s death, 6th anniversary of the victim’s death need to be treated (3rd-time treatment of the boiler), and caused the victim’s injury to the right-hand side of the boiler, 3rd-time treatment of the 6th anniversary of the said building (3rd-time treatment of the 6th anniversary of the victim’s death), and caused the victim’s injury to the right-hand side of the boiler, 6th of the said building, etc.

B. The judgment of the court below

The court below found Defendant B guilty of the facts charged according to the result of the appraisal by the Energy Management Corporation, and found Defendant A and C not guilty on the ground that there was no proof of crime against all of the selective charges.

3. The judgment of this Court

A. Determination on the result of each appraisal by the National Institute of Scientific Investigation and Energy and the Energy Management Corporation, for which a public prosecution was instituted alternatively

(1) Summary of each appraisal result of the National Institute of Scientific Investigation and Energy Management and the Korea Energy Management Corporation

(A) Summary of the appraisal results of the National Scientific Investigative Institute

The explosion cause of the boiler in this case is presumed to have caused steam explosion due to the malfunction of the safety valve and the sprink, as it is overheated with the burning room/ion water tank in the state that the water pumps location is OF and the pressure sprinking position is closed.

(B) Summary of the appraisal result of the Energy Management Corporation

The explosion of the boiler in this case is determined to have occurred due to the continuous operation of the boiler at the bottom of the boiler water, and the deterioration of the strip due to internal pressure, heat shock, etc., and the spread of steam and the decentralization, etc.

(2) Determination

The following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below, i.e., the appraisal by the National Institute of Scientific Investigation based on the site conditions revealed in the field investigation on February 18, 2009, the following day of the explosion accident, and the results of the examination of collected appraisers. On the other hand, the appraisal by the National Institute of Scientific Investigation based on field photographs, etc. without the above on-site investigation. However, unless there are special circumstances, the appraisal by the National Institute of Environmental Investigation is considered to have more credibility than the results of the appraisal by the National Institute of Scientific Investigation. (ii) The appraisal by the Korea Energy Management Corporation shows the main contents of the appraisal by the Korea Energy Management Corporation. (iii) The appraisal by the National Institute of Scientific Investigation is not inconsistent with each other; (iii) the appraisal request by the National Institute of Scientific Investigation, reply to each question, and testimony by the National Institute of Scientific Investigation, even if considering that the opinions by the Korea Energy Management Institute of Environmental Investigation were not sufficient to deny the credibility of the appraisal results by the National Institute of Environmental Investigation.

B. Determination on the Defendants’ negligence

(1) As to Defendant A

The following circumstances acknowledged by the court below and the court below's duly adopted and examined evidence: (i) the defendant did not have a certificate of qualification for handling the boiler; (ii) the defendant did not have a career experience to take charge of the test operation of the boiler; (iii) the defendant omitted inspection of some of L's 'testine crist from the test operation of the boiler; (iv) the boiler was explosiond at approximately 30-400,00 from the time when the defendant operated the boiler in normal operation; and (iv) the pressure valve connected to the boiler of the boiler at the site after explosion was closed in the course of explosion; and (iii) the water supply pumps at the site of the boiler at the bar was found to have continuously violated the duty of care to operate the boiler at the middle of the ‘Automatic' and ‘dicul dynamic', even if the defendant was found to have been negligent in operating the boiler at the latest after the explosion.

(2) As to Defendant B

The following circumstances found by the evidence duly adopted and examined by the court below and the court below, namely, ① the date of the completion of replacement work of the boiler parts and customs work, and on the day of the instant case, parts of the boiler were separated for the continuous use inspection by the Energy Management Corporation, and ② the Defendant, who is in charge of the management of the boiler, directly checked all the inspection matters for the safe operation of the boiler prior to the normal operation of the boiler, and the need to work in the nearest location to examine whether the boiler was abnormal even after the boiler was operated normally (Article 84 subparagraph 1 of the Rules on the Industrial Safety Standards, 84 of the Industrial Safety Standards, provides that the work operator does not always leave the static position in the boiler under Dong, ③ Notwithstanding the fact that the Defendant violated the duty of care to directly check the boiler parts for the safe operation of the boiler, and the Defendant’s negligence on the part of the Defendant was found to have been in violation of the duty of care to directly examine the vessel’s operation from the other under the circumstances.

(3) As to Defendant C

(8) On February 17, 2009, the date of the occurrence of the instant case, the lower court and the first instance court duly adopted and examined the following circumstances: ① replacement of boiler parts and customs work of the boiler, which were conducted from February 9, 2009, and the seal of the test run of the boiler; ② supervision over the above construction site from February 9, 2009 to February 16, 2009, the Defendant was in charge of conducting the test operation of the boiler at another place; ③ The Defendant, the team leader of L’s vice governor, instructed the Defendant to take charge of the test operation of the boiler on behalf of the Defendant at the time of the instant case, without considering the following circumstances acknowledged by evidence; ④ the fact that the Defendant was not in charge of conducting the test operation of the boiler at the time of the instant case; ④ The Defendant did not have a duty of care to check the safe operation of the boiler, ④ The test operation of the boiler at the time of the instant case, to the extent that the Defendant did not have such duty of care.

As seen earlier, the Defendants recognized the negligence of each of the above Defendants, and caused the explosion accident in this case by combining the negligence of the other Defendants, and on the other hand, the Defendants were co-principals of Article 30 of the Criminal Act with regard to the crime of occupational injury and death resulting from the explosion in this case, since there was a co-principals of the crime of occupational injury and death resulting from the explosion in this case. In addition, there is no special circumstance to deem that each of the Defendants’ negligence did not cause the explosion in this case, the Defendants cannot be exempted from joint liability for the explosion in this case, and proximate causal relation is also recognized.

D. Sub-committee

Therefore, the judgment of the court below which acquitted Defendant A and C is erroneous by misunderstanding the facts and adversely affecting the conclusion of the judgment. In addition, although the court below found Defendant B guilty of the facts charged according to the result of appraisal by the Energy Management Corporation, it erred by misunderstanding the facts, which affected the conclusion of the judgment, and otherwise, it is reasonable to determine the facts charged according to the result of appraisal by the National Science Investigation Agency

4. Conclusion

Therefore, the prosecutor's appeal against the defendant A and C is reasonable, and the part on the defendant B among the judgment below is based on the above ex officio reversal. Thus, the judgment below is reversed in accordance with Article 364 (6) and (2) of the Criminal Procedure Act without examining the defendant B's allegation of unfair sentencing, and the judgment below is reversed in entirety and it is again decided as follows.

Criminal facts

Criminal facts against the Defendants recognized by this Court are as stated in Section 2-A (1) of the above "The facts charged according to the results of appraisal by the National Institute of Scientific Investigation".

Summary of Evidence

1. The legal statement of the witness B Q in the trial;

1. A protocol concerning the examination of the suspect by the prosecution against the defendant B or C, and a protocol concerning the examination of the suspect by the prosecution against the defendant A;

1. Each police statement on AB, AE, AD, U, W, V, X, AJ, T, R, Z, Z, S, and Y;

1. Request for appraisal, reply to each question, and reply to the National Institute of Scientific Investigation;

1. Each fact-finding inquiry reply (National Science Investigation Institute);

1. A standard contract for each construction project;

1. Each photograph;

Application of Statutes

1. Relevant legal principles concerning facts constituting an offense (defendants);

Articles 268 and 30 of the Criminal Act

1. Formal concurrence (the defendants);

Articles 40 and 50 of the Criminal Act

1. Selection of punishment (the defendants);

Selection of imprisonment without labor

1. Suspension of execution (the defendants);

Article 62(1) of the Criminal Act

The grounds for sentencing are both primary offenders, and most victims and their bereaved family members were recovered from damage through mutual agreement and litigation, and some defendants were subject to considerable disadvantage when suspended sentence of imprisonment without prison labor. However, due to the instant accident, the scope and scale of personal injury, such as occurrence of multiple casualties, and the degree of fault of the defendants is heavy, and the degree of negligence of the defendants is not easy. In addition to these circumstances, the Defendants’ age, character and conduct, relationship with victims, the course and consequence of the instant crime, and all of the sentencing conditions in the instant arguments, including the circumstances after the crime, shall be determined as ordered by the disposition.

The presiding judge and the voluntary judge rules

Judges Laos

Judges Lee Jae-uri