(영문) 광주고등법원 2019.1.31. 선고 2018노318 판결

The lower court deemed that it is difficult for the Defendant to recognize the intention of interfering with business affairs, and sentenced the Defendant not guilty on the whole of the facts charged, and appealed on the ground of mistake of facts and misapprehension

B. Judgment of the court prior to remand

The trial prior to remand dismissed the prosecutor’s appeal on the ground that it is difficult to readily conclude that the Defendant had an intention to obstruct the business of the Defendant solely on the fact that the Defendant did not implement the procedures prescribed by the relevant provisions and prepared the relevant documents, etc. while conducting a regular inspection of E, and that the prosecutor appealed against the judgment prior to remand.

C. Judgment of the Supreme Court

The Supreme Court did not accept the Prosecutor’s ground of appeal on the obstruction of the duties related to the extension of the fiveth floor exhibition room among the facts charged in the instant case. However, the Prosecutor’s ground of appeal on the obstruction of duties related to the Defendant’s slope test, the equipment for a sloping boarding and the inspection of the entrance entrance of the fourth floor passenger room was accepted, and the scope of reversal was reversed on the ground that the facts charged in the instant case was related to a single comprehensive crime.

2. Ground of appeal 1) - Ground of appeal 1 - Ground of appeal - Ground of mistake of facts and misapprehension of legal principles as to obstruction of affairs related to slope tests, degradation boarding equipment, light lamps, and entrance examination of the fourth floor passenger room.

Although the Defendant did not comply with the procedures and methods prescribed in the relevant Acts and subordinate statutes and the bylaws of D (hereinafter referred to as D; hereinafter referred to as hereinafter referred to as 'D'), while conducting regular inspections of ships under subparagraph E, the Defendant prepared and submitted a slope test report, inspection test report and inspection report, and submitted them to the Defendant as if he complied with them and carried out inspections, thereby causing the risk of interference with D's business. Accordingly, the crime of interference with business is established against the Defendant and the Defendant is also recognized as intentional interference with business.

In particular, the smuggling of passenger cargo lines, such as E, is very important for the safety of the vessel. The Defendant, without using a string test to check the smuggling, used a light projecting test method, and even if the light projecting test method is the same as that of the string test, it is difficult to recognize that the Defendant performed an appropriate light test with respect to the string of the string.

Nevertheless, since the lower court acquitted the Defendant of the facts charged, it erred by misapprehending the legal doctrine on the crime of interference with business, thereby adversely affecting the conclusion of the judgment.

3. Scope of adjudication of this court.

The Defendant’s interference with the business related to the extension inspection of the fiveth floor exhibition room is related to the crime of interference with business related to the inspection of the entrance entrance of the fourth floor, and the crime of interference with business is related to the whole crime of interference with business. As such, even if the Prosecutor withdraws his allegation of the grounds for appeal against this part, it shall be transferred to the court in accordance with the principle of no appeal by the court. However, the foregoing interference with business is virtually excluded from the target of the attack and defense between the parties,

4. Determination

The Defendant denied all of the instant crimes in the lower court and the lower court prior to remand. However, the lower court led to the Defendant’s confession as to the crime of interfering with the duty of interfering with the inspection of the sloping boarding equipment, the shot light, the shot light, and the 4th floor passenger room entrance, which was reversed to the effect that the Defendant was guilty in the final appeal among the instant facts charged. There is no reason to deem credibility in the instant confession. In full view of the evidence duly adopted and examined at the lower court and the lower court prior to remand, it is sufficient

Thus, the defendant can be found to interfere with D's ship inspection, approval of design drawings, and issuance of ship inspection certificate through a deceptive scheme with respect to slope testing, rainfall boarding device, light lamps, and fourth floor passenger room entrance inspection among the facts charged of this case, and the judgment of the court below which acquitted this part of the facts charged is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

5. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment shall be

【Discretionary Judgment】

Criminal facts

【Powery Facts】

1. Careers and duties of defendants;

The Defendant graduated from B University C around February 2006, and entered D as a government agency on April 2006, which was a government agency on behalf of the Defendant, from May 2007, and is engaged in the hull inspection duties at D Bapo Branch from June 201, D Changwon Branch from D Changwon Branch from June 201, and from May 201, D Bapo Branch from May 201, respectively, as a ship inspector.

2. Ship inspections and issuance of ship inspection certificates;

(a) Ship inspections, etc.;

(1) A shipbuilding inspection that requires a person who intends to build a ship to undergo an inspection by the Minister of Maritime Affairs and Fisheries on ship facilities installed in a ship; (2) when a shipowner first uses a ship for navigation or when the term of validity of a ship inspection expires, a regular inspection that shall undergo an inspection by the Minister of Maritime Affairs and Fisheries on the ship facilities and loadline; (3) a shipowner shall undergo an inspection by the Minister of Maritime Affairs and Fisheries on the said regular inspection; and (4) a temporary inspection that shall undergo an inspection by the Minister of Maritime Affairs and Fisheries in certain cases, such as where a shipowner intends to remodel or repair the ship facilities (Articles 7 through

The Minister of Oceans and Fisheries shall issue a shipbuilding inspection certificate or ship inspection certificate to a ship which has passed each of the above inspections, and in cases of interim inspections and temporary inspections, he/she shall indicate the results thereof to a ship inspection certificate.

A person who intends to undergo such ship inspection shall obtain prior approval from the Minister of Oceans and Fisheries as prescribed by Ordinance of the Ministry of Oceans and Fisheries with respect to the drawing of the relevant ship, and shall also obtain such approval (Article 13(1) of the Ship Safety Act)

(b) Vicarious execution such as inspections;

The Minister of Oceans and Fisheries may have the Corporation or corporation that has entered into an agreement on the ship inspection, approval of drawings, issuance of ship inspection certificates, etc. as stated in the preceding paragraph on behalf of the Minister of Oceans and Fisheries.D has concluded a government agency inspection contract with the Minister of Oceans and Fisheries and performed

The Minister of Oceans and Fisheries concluded a contract with D and the Korea Ship Safety Technology Authority to conduct inspections on behalf of the Government, and D are conducting inspections on behalf of large-sized vessels and the Korea Ship Safety Technology Authority mainly.

D may have a ship inspector who performs the relevant agency business and has a specific qualification, and the ship inspector shall be classified into the hull inspector, the engine inspector, and the specialized inspector.The ship inspector shall perform his/her duties fairly from an independent point of view without being affected by the designer, manufacturer, the maintenance manager, and any other person (D 2014 Prepaid and the Rules of Limit 804). When a registered ship applies for inspection, all inspections must be conducted and immediately reported to the headquarters (D 2014 Prepaid and the Rules of Limit 802).

In addition, a ship inspector shall carry the inspection list for the Checkist and check the inspection items at the site without omission, and shall verify whether the inspection results or measurement records submitted by the shipowner, shipbuilding yard, repair company, etc. conform to the Prepaid Technology Rules and relevant guidelines and, if appropriate, shall be used for his/her duties, and shall be confirmed, recorded and managed as to the drawings and materials examined by the headquarters (D Existing Line Inspection Procedures 6.1.6).

If a vessel inspector passes an inspection of all the items included in the above inspection report, he/she shall submit the inspection report and inspection report (Survey Rereport) to the appointed inspection official designated by the head of the D branch or the head of the branch office, and the branch shall issue the vessel inspection report and the vessel inspection certificate (SHIP SURVE) to the shipowner.

3. Introduction of subparagraph 5, expansion and reconstruction works and ship inspection;

The F Co., Ltd. (hereinafter referred to as the "F") decided to additionally put in the above service route a carpet passenger ship at around 2010 with the approval of H, the Chairperson of F, in order to protect the entry of other ships into the service route and to replace it at the time when the age of G is different, while operating the transportation business by inserting Gho (6,32 metric tons, 1989) into the Incheon or Jeju service route. Accordingly, on October 22, 201, the F entered into a sales contract with respect to I, which was operating on the coast of Japan on March 2, 2011, imported the name of the ship, the name of the ship as E, and the registration of the new entry into the Incheon Regional Port Office of Incheon as E (hereinafter referred to as the "China").

After all, F performed the repair and extension work of subparagraph E for the purpose of expanding the passenger room and cargo loading space of subparagraph E and establishing a personal exhibition room of H, the president, from October 201 to February 2013, F performed the repair and extension work of subparagraph E, and removed the part of the line of the E from J located in Young-gun, Inc., a corporation located in the Jeonnam Cancer-gun from October 2012 to February 2, 2013, and made two floors of the space extended by 2.8m in the line, 5.6m in the deck, 1.6m in the ceiling on deck, etc., the lower floor was remodeled into the passenger room, and the upper floor was remodeled into the exhibition room, etc., and the repair and extension work was performed, such as removing 40 tons in the on-board car lamps (entry of vehicles) of the fore.

As a result, E has increased the gross tonnage of 239 tons, the light weight (net weight) of 187 tons, the weight of goods has increased by 187 tons and 116 passengers on board, and the weight has increased by 51cm, so E has decreased 1,448 tons of cargo that can be loaded more than existing cargo in order to secure safe navigation while maintaining stability by lowering the weight center, and it has no choice but to increase the horizontal number of 1,324 tons, and eventually, only 1,077 tons can load cargo.

In particular, at the time of removal of the car lamps, the weight of 30 tons (40 tons of removal and 10 tons of smuggling) was added to the on-site of the player, or the 30 tons of the left on the left side did not reduce the weight of 30 tons, which led to the deepening of the imbalance, which has a significant impact on the restitution.

E At the same time as the introduction, the extension/renovation work was conducted for the first regular inspection due to the first use of the E, and the Defendant was designated as the ship inspector of the D Sub-chapter with respect to the introduction and extension/renovation work as above, and during the construction period, the Defendant was in charge of the duties such as conducting corrective orders when there is any error in the construction work performed according to the drawings approved by the D Headquarters while staying in the Marine Survey Center's Office in J during the construction period.

【Criminal Facts】

The defendant, while conducting regular inspections of ships on the introduction, expansion, and remodeling of E, should report the truth to the D Wood Branch and Headquarters on the results of the regular inspection so that D's operations, such as D's ship inspection, can be performed without any defects, but the following documents were falsely prepared and reported on the slope test results, inspection results, inspection results, and inspection reports, as described in paragraphs (a) through (d).

A. Regarding slope test

A shipowner shall maintain and maintain the restitution of a ship in accordance with the standards determined and publicly announced by the Minister of Oceans and Fisheries, and submit data about restitution of the suitability thereof to the Minister of Oceans and Fisheries and obtain approval from the Minister of Oceans and Fisheries, and in case of subparagraph (e), he/she shall obtain approval from D, which

Pursuant to Article 4(1)1 of the Vessel Restoration Standards (No. 2013-76 announced by the Ministry of Oceans and Fisheries), a slope test (a test to measure matters necessary for calculating the weight-centered position of a ship by crossing a ship) shall be conducted. A ship inspector shall supervise whether such slope test is conducted in accordance with the relevant guidelines, and verify whether the test results are accurately measured and recorded (D Restoration Guidelines), and accordingly, basic data for calculating the restitution, such as weight, weight, and horizontal quantity are different depending on the slope test results.

Therefore, before initiating a slope test, a ship inspector must accurately measure the capacity of each tank through ① stamping 4) and (2) verify and record the weight and location of each item on the basis of the list of items to be reconstructed, 5) and 6) and the list of items to be reconstructed, and the weight and location of each item on the basis of the sloping test. ③ The sloping test must be conducted immediately before the sloping test, the sloping test must be verified, and ④ the sloping test results should be verified after the slope test, ④ the results of the test included in the slope test report should be confirmed as the accurate test results during the slope test, and sign the slope test results (the preparation of attached Table 10, the guidelines for the regular inspection and the guidelines for D Restoration test).

Nevertheless, on January 24, 2013, the Defendant supervised a slope test in which K representative L is proceeding to the T at a Tthropic inner wall of the Tthropian located in the Tthropian on January 24, 2013, without verifying the capacity of each tank, ② did not confirm at all the weight and location of the items to be loaded, ② did not confirm the weight and location of the items to be removed at the time of completion of the vessel; ③ did not confirm whether the draft measured before the slope test is maintained after the slope test; ④ without verifying whether the result of the test included in the slope test is the result of the slope test being conducted, immediately after the slope test, the Defendant participated in the slope test which calculated the restitution of E and submitted the slope test in accordance with the slope test, and then sent the results of the test to the effect that the inspector at the Fropic Chapter A participated in the slope test and verified it by 10 minutes or more at the time of the test.

B. Regarding the examination of a loading boarding device

With respect to the Gangseo-type boarding vessel (MES8), if an enterprise equipped with certain human resources and facilities and passed an inspection conducted by the Minister of Oceans and Fisheries as an excellent maintenance business entity, it shall be deemed that the enterprise passed the inspection conducted by D and D shall be deemed to have passed the inspection conducted by the Minister of Oceans and Fisheries, and D shall issue a ship inspection certificate by adding the inspection results for other items of inspection (Article 20 of the Ship Safety Act).

A ship inspector shall, upon receipt of an application for inspection for the maintenance of a river system, obtain the records of maintenance after confirming whether the place of inspection is designated as an excellent maintenance business entity, and where it is found that the period of validity, inspection records, etc. of the design is not in conformity with the relevant standards, he/she shall take on-site measures and report the details thereof to the government agency team of the headquarters of D (Guidelines related to the dgral life raft).

Nevertheless, on December 24, 2012, the Defendant submitted a report on the maintenance of a river-type boarding device from M Co., Ltd., which did not have been designated as an excellent maintenance business entity with respect to a river-type boarding device while conducting a ship inspection for E, and did not verify whether the said company is designated as an excellent maintenance business entity with respect to a river-type boarding device. However, the Defendant submitted a false pass on the inspection report to the effect that the aforementioned company did not have any error in the examination column of a river-type boarding device (Korean Government Agency Inspection Report, CHECKSOTOTOTOT MNENT). On February 24, 2013, the Defendant submitted a false pass on the inspection report (Survey Report) stating that it passed all inspection items.

C. Regarding the examination of discharge lamps

The passenger cargo ships loaded at the same time with passengers, automobiles, etc., such as E, must be checked as to whether the tight business is maintained so as not to enter the light lamps. At the time of regular inspection, the ship inspector must check the tightness of the light lamps (D, check box for 205) by means of the string test or other equivalent effective methods (D, check box for the Checckistist).

Nevertheless, from October 2012 to February 2013, the Defendant indicated a false pass to the effect that even without carrying out a ice test or an inspection having the same effect as the above during the ship inspection of subparagraph E, the Defendant submitted a false pass to the D woodline with a false inspection report (Sury Rereport) stating that he/she did not pass all inspection items. On February 2013, 2013, the Defendant submitted a false pass to the D wood Line.

D. Regarding the inspection of the entrance entrance of the fourth floor;

D Where a ship intended to be registered is to be remodeled that affects the performance of a ship, a design drawing shall be submitted to D before commencement of the construction work and shall be inspected by a ship inspector (D 2014 advance payment and lecture Rules 101.3.), and the ship inspector shall verify, record, and manage the drawings and materials examined by D headquarters (D existing procedures for inspection of ship under 6.1.6).

Nevertheless, from December 2, 2012 to February 2013, the Defendant, while conducting a ship inspection as seen above with respect to E, failed to report the extension of entrance to the fourth floor passenger room or the alteration of its location to the fourth floor differently from the drawing approved by FID headquarters, and neglected without any restriction or corrective measures, and submitted a false pass mark to the D Item Pool to the effect that, as if the extension was normally undertaken in accordance with the approved drawings, there was no abnormal space for verification, such as residence and sanitary facilities of the Cream (Korean Government Agency Inspection List, CHECK LITR LITR OLGGGTUTR MNENT).

In the end, D issued F E ship inspection certificates on February 12, 2013 based on the slope test report on which the Defendant entered and marked in a false manner, the inspection Ro-Ro Sheet list, the inspection body list (Korean government vicarious inspection marks, CHEC LTSOTUTS RES RENENT), and the inspection report (Survey Report). The Defendant interfered with D ship inspection, design drawings and the issuance of ship inspection certificates by fraudulent means.

Summary of Evidence

1. Statement by the defendant in this court;

1. A protocol of examination of part of the defendant by prosecution;

1. D’s bylaws on prepaid inspection, prepaid and lecture rules, procedures for inspection of existing vessels, results of slope testing, inspection guidelines for Korean government vicarious inspection, body list, ship inspection certificate;

1. Standards for the structure, equipment, etc. of ship load line, carpet ships;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 314(1) and 313 of the Criminal Act (generally, the choice of imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

Reasons for sentencing

As a ship inspector belonging to D, the Defendant had a professional duty to conduct a thorough inspection as to whether the construction is carried out in accordance with the drawings approved by the D headquarters when there is any defect in the construction work that may hinder the safe operation of vessels for his/her economic interest. Nevertheless, the Defendant did not properly observe the procedures and methods prescribed by the relevant statutes and D internal regulations, etc. while conducting a ship inspection for subparagraph 1, and did not properly observe the aforementioned procedures and methods, and issued a certificate of FF ship inspection by preparing a false slope test report as to the result of the inspection and the inspection report and submitting the inspection report to D. Although the Defendant did not directly cause a large number of lives of the Defendant, the Defendant violated the statutes and D regulations related to the ship inspection and issued a false inspection report for subparagraph 1, and thus, cannot be seen as being disadvantageous to the Defendant. Furthermore, the Defendant cannot be deemed to have any social criticism against such circumstances.

On the other hand, the Defendant expressed his will to the victims of the case in E which he had committed a mistake in this court, and thereby participated. The Defendant was indicted for the instant crime and carried out a life with prison labor for about six months, and during which his father died due to aggravation of the health during the period of detention, and his father seems to have in depth reflected on the instant crime during the period of detention. Furthermore, the Defendant did not have any criminal record before the instant crime was committed, and the victim D and his employees want to be placed in the preference against the Defendant. The Defendant was subject to a disciplinary action of salary reduction for three months from D due to the instant crime, and the imprisonment without prison labor or heavier punishment in this case becomes final and conclusive, and is dismissed in accordance with D’s employment rules. Such circumstances are favorable to the Defendant.

In full view of the following circumstances, the Defendant’s age, character and conduct, environment, method and circumstances after the commission of the crime, etc., and the various sentencing factors specified in the records and arguments, the punishment as ordered shall be determined.

Part of innocence (Interference with the business affairs related to the extension inspection of the fifth floor exhibition room)

1. Summary of the facts charged

The defendant was in charge of the duties as a ship inspector of the DY branch, as stated in the facts of the crime of this case.

Nevertheless, from December 2, 2012 to February 2013, the Defendant: (a) while conducting a ship inspection as above with respect to subparagraph (E); (b) reported that the construction of a new central structure in the five-story exhibition room was carried out differently from the drawing approved by FND headquarters; (c) neglected without any restraint or corrective measures; and (d) submitted a false pass to the D Item D branch, along with a inspection report stating that the construction was normally carried out in accordance with the approved drawings, as if the extension was performed in accordance with the approved drawings (the Korean government vicarious inspection report, CHECSOTROTR OLSOTR REGGGENT), there was no need for verification column, such as residence and sanitary equipment.

After all, D issued a ship inspection certificate to F on February 12, 2013 based on the inspection report (Survey Restatement), which was falsely entered and marked by the Defendant, based on the check list (the Korean government vicarious inspection check sheet, CHECS OTUTOTR NOVGGENT), and the inspection report (Survey Restatement), which interfered with D's ship inspection, design drawings approval and the issuance of the ship inspection certificate.

2. Determination

This part of the facts charged constitutes a case where there is no evidence of crime as stated in Article 2-2(b)4 of the judgment of the court below, and thus, it should be pronounced not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court below found the defendant guilty of the crime of interference with business in relation

Judges

Judges Maximum number of judges

Judges Yang Young-hee

Judge Park Jong-hun

Note tin

1) The prosecutor declared innocence in the lower court for the first time, and the appellate court also withdrawn the allegation in the grounds of appeal as to interference with the business relating to the extension inspection of the five-story exhibition room, which is the part that the lower judgment was justifiable.

2) means a slope to load a vehicle or cargo;

3) In a state where a line lamps is completely closed, an inspection is to verify whether water flows out of the door by spraying water with a certain water pressure outside the door.

4) The method of measuring the height of the surface of the water by putting the tank scoody in the tank (scoody) into the tank.

5) "Adddd item item" is called, and should be added when calculating the quantity of items to be loaded on a ship, on the premise of completion, such as wood, board, de factoing, and fishing.

6) 'Deduced item' is called 'posted item' and should be deducted when the ship is not loaded on board, such as tools, waste, etc. used in the construction as well as liquid stay, such as flat trees, fuel oil, and Cheongwater.

7) It is the basis for the calculation of the quantity of distribution as the vertical distance between the depths of repair and hulls.

8) It is called "Chute", and is the escape equipment of crowdfunding that helps passengers to safely get off decks on the sea in the event of an emergency.

심급 사건

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