In a case where the Defendant, who is a person in charge of safety at the construction site of subway section, was in charge of occupational injury in light of the overall circumstances, in light of the fact that it is difficult to deem that the Defendant breached a duty of care to take safety measures, and thus, the lower court recognized the crime of occupational injury by misapprehending the legal doctrine, in light of the above, in the case where the Defendant, who is a person in charge of safety at the construction site of subway section, installed 3 mobile-line around the existing crosswalk beam beam abutting along the adjacent crosswalk beam along the construction site,

Article 268 of the Criminal Act

Defendant 1 and one other

Defendants

Attorney Yoon So-young

Seoul Central District Court Decision 2012No1954 Decided August 29, 2012

The judgment of the court below against Defendant 2 is reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court. The prosecution against Defendant 1 is dismissed.

1. As to Defendant 1

According to the records, Defendant 1 is recognized to have died on May 9, 2013, which was after the public prosecutor’s filing of the appeal of this case. Thus, the public prosecution against the above Defendant is dismissed pursuant to Article 382 and Article 328(1)2 of the Criminal Procedure Act.

2. As to Defendant 2

A. The summary of the facts charged of this case is "the defendant is a person in charge of safety at the construction site of the subway section of this case, which belongs to ○○○○ Development. From June 2008, the construction site of this case was installed directly adjacent to the crosswalk above the △ apartment distance intersection, and the road indicating the existing crosswalk is not completely crossed off, and there were many shakings without completely crossed off the white light. At the construction site of this case, there was a truck loaded with the HG beam beam of this case (hereinafter "the steel beam of this case"). While the steel beam of this case was protruding inside the existing crosswalk line, the construction site of this case was caused by negligence in the course of business and not taking any other special measures on November 3, 2010, when only 3 of the above truck installed only one signal number for vehicle traffic management, and Non-Indicted 16:40 (14) of the victim non-indicted 14) of this case suffered from the sloping beam of this case."

B. citing the reasoning of the judgment of the court of first instance, the court below maintained the judgment of the court of first instance on the ground that the defendant's violation of the duty of care was a serious cause for the occurrence of the accident of this case, so long as the defendant's violation of the duty of care was a serious cause for the occurrence of the accident of this case, there was causation between the violation of the duty of care and the result of the injury, as long as the defendant's violation of the duty of care was proved to have a causal relationship between the violation of the duty of care and the result of the injury.

C. However, we cannot agree with the above determination by the court below in light of the following circumstances known by the records.

① At the time of the occurrence of the instant accident, Nonindicted 2 consistently saw the instant steel beam on the left hand and read it before the victim saws the crosswalk. In the situation where the pedestrian signal remains, Nonindicted 2 stated that the previous crosswalk goes beyond the rick line installed on the right side of the location where the pedestrian signal begins at the crosswalk, and then carried the rick beam direction of this case, as it is in the position where the racks the arms. The victim also read the cartoon book, and was immediately able to report that the pedestrian signal remains remaining 15 seconds before leaving the crosswalk. In light of this, in light of the above, it is highly probable that the victim was immediately able to wear the crosswalk in the situation where the pedestrian signal remains at the right side of the location where the existing crosswalk begins.

② On the other hand, the victim stated to the effect that the victim started to collapse from the left part of the crosswalk, rather than commencing the hacks, on the side of the said hacks. However, in light of the fact that the hacks loaded with the truck on which the hacks and the floor on which the hacks are installed, the hacks of the existing crosswalk display line did not remain separately; when the hacks and the above hacks pass, the vehicles are located at the point in the signal line, where the vehicle is in the signal line, and the hacks the stop line on the floor; when the vehicle passes through the hacks and the instant hacks loaded with the steel beam loaded with the hacks from the point of entry of the crosswalk at which the victim speaks, it is sufficiently clear that the hacks in the direction of the victim stated in the direction of the crosswalk, not the lowest straight distance, and that the part of the hacks cannot be seen as a natural person.

③ According to the statements made by Nonindicted 2 and Nonindicted 3, who had been engaged in signalling service at the scene of the accident, at the time of the accident, they could be seen that safety belts bound at the end of the instant steel beam were increased to the floor. In addition, the sloping beam of the instant steel were installed at three containers around the sloping beam of the instant case, and one signal number was posted. In light of the location, work situation, the location of the truck on which the instant steel beam was loaded and the construction site, and the distance between the instant truck and the instant truck, etc., it seems that it is sufficiently recognizable that pedestrians who walk the crosswalk as pedestrians are likely to walk the crosswalk.

④ The victim stated that he was well aware of the progress of the construction work at the site of the instant accident, since the road of this case was passed while attending school.

(5) There is no evidence to deem that the defendant did not properly implement the safety measures prescribed by relevant statutes or internal rules.

In light of these circumstances, it is difficult to view that the defendant violated the duty of care to take safety measures, and even if some of the existing crosswalk display lines were not disclosed or only 30,000,000, and did not take any particular measures other than posting one signal number at the road, it is difficult to view that there is a proximate causal relation between that fact and the occurrence of the accident in this case. However, the lower court’s decision otherwise determined by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine on the duty of care to prevent injury by occupational negligence or by misapprehending the proximate causal relation.

3. Conclusion

Therefore, the lower judgment against Defendant 2 is reversed, and this part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 1’s prosecution is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)