(영문) 부산지방법원 2015.7.23.선고 2015노1000 판결

Since the Defendant fixed and fixed a separate type of engine tank F (361 tons, hereinafter referred to as the “hing line”) of dredging vessels F (hereinafter referred to as the “hing vessel”) and changed the location of the engine sud support unit, which is a mobile device, from the outside of the engine tank to the inside side of the engine tank, the dredging vessel of this case should not be affected by not less than 1.25m long as the changed draft repair (safety vessel). However, D, while the Defendant is hospitalized in a hospital, made the oil tank illegally into the engine room and dredging work, the captain I and the driver J loaded the water pollution of this case with the oil tank 8,000 liters in the oil tank, which was treated as the oil pollution of this case, and the water pollution of this case was treated as an accident that occurred during the dredging period of this case. It did not occur from the negligence of the Defendant at the time of the dredging.

Nevertheless, the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

In light of the various sentencing conditions of the instant case, the lower court’s punishment of KRW 5 million is too unreasonable.

2. Determination on the grounds for appeal

A. misunderstanding of facts or misapprehension of legal principles

1) Facts of recognition

The following facts are recognized in full view of the evidence duly adopted and examined by the court below and the trial court.

A) On March 4, 2010, the dredging vessel of this case had been sinkinged even on or around March 4, 2010, but thereafter, the Defendant changed the location of the work site in front of the dredging tank of this case and the steering tank of the restaurant, and the engine tank No. 5, and installed 50 meters in diameter on the left and right body of the ship, and 12 meters in length. However, in order to prevent water from entering the port with the power base, the spick support unit should be installed from the bottom of the power unit to the upper deck. However, the Defendant installed a spick support unit up to 1.95 meters and installed a separate support unit and installed a support unit of the upper deck at a height of 1.95 meters, so far as the spick and the spick are 1.95 meters and the spick.5 meters and the spick.

B) D put the dredging vessel into the site of this case in a state of unlawful alteration, such as installing a tank with a capacity of about 15 tons at an open space in the center of the main body and the Sspit connected part of the dredging room. At the time D did not take measures such as discharging pumps generated during dredging to I and J, but did not take measures such as discharging water in a timely manner at the time, and loaded a large quantity of water via a tank installed illegally.

C) During that process, I and J, the operator of the dredging vessel of this case, who is in charge of the operation of the dredging vessel of this case, had been engaged in dredging work even when the dredging vessel of this case was anticipated, and as a result, the dredging vessel of this case continued to have been sunked for not less than 1.95 meters, and the vessel of this case, which was untight due to the Defendant’s illegal remodeling, has come into a crepan, and a sudden storm has occurred due to the flow of rainfalls between the spacker support team in the spacker room and the spacker, and the river flow of this case was buried in the engine room, and it was leaked to the spacker-A oil of about 1,970 litres, which is the oil loaded.

D) The penal provisions on the leakage of specific substances harmful to water quality through occupational negligence are as follows.

Article 15 (Prohibition of Discharge, etc.) of the former Water Quality and Aquatic Ecosystem Conservation Act (Amended by Act No. 11862, Jun. 4, 2013; hereinafter the same shall apply)

(1) No person shall engage in any of the following conduct without justifiable grounds:

1. Discharging, leaking or dumping specific substances harmful to water quality, designated wastes provided for in the Wastes Control Act, petroleum products and crude oil (excluding petroleum gas; hereinafter referred to as "oils") provided for in the Petroleum and Petroleum Substitute Fuel Business Act, toxic substances (hereinafter referred to as "toxic substances") provided for in the Toxic Chemicals Control Act, and agricultural chemicals (hereinafter referred to as "agricultural chemicals") provided for in the Agrochemicals Control Act in the public waters;

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than one year or by a fine not exceeding 10 million won:

2. Person who has leaked or leaked specific substances harmful to water quality due to occupational negligence or gross negligence in violation of the provisions of Article 15 (1) 1;

2) Determination

According to the above facts, the defendant is engaged in occupational negligence not securing the safety of dredging ships by changing the structure of dredging ships of this case illegally and it is one of the main causes of the occurrence of the accident of this case. Although D, etc. responsible for managing and supervising dredging ships of this case, which do not timely discharge the pumps, is involved in dredging work, the defendant cannot be exempted from the responsibility for the accident of this case even if the causes of the accident of this case occur in competition with the above occupational negligence of the defendant, and the accident of this case occurred, the defendant cannot be held liable for the accident of this case. In addition, Articles 78 subparagraph 2 and 15 (1) of the former Water Quality and Aquatic Ecosystem Conservation Act are punished for the act of leakage and leakage of oil due to occupational negligence or gross negligence, and it does not require the result of actual water pollution. Thus, the defendant's assertion of mistake of facts and misapprehension of legal principles are without merit (According to the records, the defendant can be found to have been punished due to the violation of the Construction Machinery Management Act because of the above structural modification.

B. Determination on the assertion of unreasonable sentencing

In full view of the fact that there is no change of circumstances to take into account the sentencing after the sentence of the lower judgment was rendered, and the motive, background, means and consequence of the instant crime, and the circumstances after the instant crime were committed, it cannot be deemed that the sentence imposed by the lower court is too heavy. Accordingly, the Defendant’s aforementioned assertion is groundless.

3. Conclusion

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