(a) The relationship between the crime of violation of Article 23 (3) of the Occupational Safety and Health Act and the crime of death or injury by occupational negligence which causes workers to die (=or commercial concurrent crimes) where the head of a road construction site office does not take measures to prevent risks under Article 23 (3) of the same Act;

B. In the case of the above "A", after being issued a summary order of a fine due to the violation of the Occupational Safety and Health Act, whether a judgment of acquittal should be rendered for the crime of occupational negligence resulting in death (affirmative)

A. In the event that the construction site manager is likely to pose a risk to workers due to the ground collapse, etc., the manager of the road works site shall safely slope the ground to prevent such danger and remove retaining walls and soil mounds, or install retaining walls and soil mounds to prevent such danger. However, the crime of violating the provisions of Article 23(3) of the Industrial Safety and Health Act by failing to take such preventive measures, and the crime of causing the death of the above workers due to occupational negligence not taking necessary measures to prevent the above danger, the above duty to take preventive measures against danger under the Industrial Safety and Health Act is consistent with the duty to take occupational caution, and this is the case where one act constitutes two occupational crimes and the crime of death by occupational negligence.

B. In the case of the above "A", the defendant should have been sentenced to more severe punishment, but if the defendant was sentenced to a summary order due to the violation of the Occupational Safety and Health Act and was charged again due to the occupational negligence resulting in the violation of the Occupational Safety and Health Act, he was punished for the violation of the Occupational Safety and Health Act. Since the case charged later constitutes "when a final judgment is rendered" under Article 326 subparagraph 1 of the Criminal Procedure Act, the judgment of acquittal should be pronounced.

(a)Article 23(3), Article 67 subparag. 1, Article 40, and Article 268 of the Criminal Code; Article 326 subparag. 1 of the Criminal Procedure Act;

B. Supreme Court Decision 81Do1307 delivered on May 25, 1982 (Gong1982,620) 83Do1847 delivered on September 27, 1983 (Gong1983,163) 86Do2454 delivered on February 10, 1987 (Gong1987,487)

A

Prosecutor

Jeju District Court Decision 91No147 delivered on August 10, 1991

The appeal is dismissed.

The Prosecutor's grounds of appeal are examined.

The court below determined that the defendant's act of violation of Article 23 (3) of the Industrial Safety and Health Act should be subject to punishment under the Criminal Procedure Act because the defendant's act of violation of Article 23 (3) of the Industrial Safety and Health Act is not subject to punishment under the summary order of this case on November 14, 1990, although it is necessary to remove earth and rocks at a safe slope for the prevention of danger, or install retaining walls and soil fences, etc., if it is apprehended that the defendant might cause danger to workers due to the collapse of ground, falling under the field of construction and safety management as the site manager of the national highway B which performs construction by using 20 full-time workers at the site of the 14th century 1706-14 of this city at Jeju. The court below decided that the defendant's act of violation of Article 23 (3) of the Industrial Safety and Health Act should be subject to punishment under the summary order of this case on the ground of failure to take preventive measures such as the death of sewage pipes at the place of excavation.

In light of relevant evidence and records and the provisions of relevant Acts and subordinate statutes, the above recognition judgment of the court below is just and acceptable, and it cannot be deemed that there is an error of law by misunderstanding the legal principles on commercial concurrence, such as theory of lawsuit, and therefore there is no reason to discuss.

Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)