(영문) 의정부지방법원 2015.9.9.선고 2014노2551 판결

The part of the judgment of the court below regarding Defendant B shall be reversed. Defendant B shall be punished by a fine of KRW 3,00,000. Where Defendant B fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

Defendant B is ordered to pay an amount equivalent to the above fine. Defendant A’s appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A was convicted of the facts charged of this case against Defendant A on the basis of Defendant B’s statement that “the first cigarette butts, which the Defendant did not flick, was flicked by the Defendant A, and flicked for packaging,” and Defendant B’s statement is not reliable since there is sufficient motive for Defendant A to make a false statement in order to avoid his civil and criminal liability. In addition, in light of the fact that the fire occurred after eight minutes after the Plaintiff got out of tobacco, and the L, which was delivered to the Defendant’s store, made a statement that the Defendants did not witness any signs related to the fire at the time, it is reasonable that the fire occurred due to the third party’s intervention or other causes, and thus, it cannot be deemed that the facts charged of this case against Defendant A was sufficiently proven. The judgment of the court below otherwise erred by misapprehending the legal principles and misapprehending the legal principles.

(b) Prosecutors;

원심은 피고인 B의 행위로 인하여 이 사건 화재가 발생하였음을 인정하기 어렵고, 피고인 B에게 화재 발생 위험이 있는지를 확인할 형법상 주의의무가 없다는 이유로 피고인 B에 대하여 무죄를 선고하였으나, 피고인 B도 담뱃재를 손가락으로 털었던 사실은 인정하고 있고, 피고인 A이 자리를 먼저 뜨는 바람에 피고인 B이 담배를 어떻게 껐는지 목격한 사람은 없지만 화재 현장에 마지막까지 남아 있던 피고인 B의 행위로 이 사건 화재가 발생하였을 개연성도 충분하다. 또한 가사 피고인 B의 담배꽁초로 인하여 화재가 발생한 것이 아니라고 하더라도, 피고인 B은 일관되게 '피고인 A이 담배를 피운 뒤 먼저 들어가면서 종이상자와 포장용 비닐이 있는 쪽으로, 꺼지지 않아 연기가 나는 담배꽁초를 던지는 장면을 보았다.'고 진술하였는바, 그렇다면 피고인 B에게는 피고인 A이 던진 담배꽁초의 불이 완전히 꺼진 것인지 아닌지 확인하여 화재를 예방하여야 할 주의의무가 있음에도 이를 해태한 과실이 있다고 할 것이다. 따라서 피고인 B 역시 형법 제30조의 공동정범으로서의 책임을 부담한다고 보아야 하므로, 피고인 B에 대하여 무죄를 선고한 원심판결에는 사실오인 및 법리오해의 위법이 있다.

2. Judgment on Defendant A’s assertion

A. The judgment of the court below

The lower court determined that, in light of the fact that there were no electrical characteristics such as shot, etc. in the fire site of this case where the Defendants were unable to smoke, and that witnesses (P,0 and D also began to smoke first on the passage of this case; the passage of this case was used as a space for storing combustible materials easily emitting by cigarette such as paper or clothes, etc. at the entrance of the entrance of the passage of this case at the time of fire, and that the Defendants were found to have no customers at the time of fire, and that the Defendants had to open door door door to the door of this case, and that there was no possibility that the Defendants could have dried up the door of this case at the time of fire, and that there was no possibility that the Defendants could have dried up the door of this case, and that there was no possibility that the Defendants could have dried up the door of this case, and that there was no possibility that the Defendants could have dried up the door of this case with the entrance of the warehouse of this case.

B. Judgment of the court below

If we look at the following additional circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below, we can fully recognize the facts charged of this case where a fire occurred due to negligence in the space where a shot butts were laid down in a shot and vinyl, without completely extinguishing the fire by Defendant A. Thus, the argument by Defendant A that there was an error of misunderstanding of facts and misunderstanding of legal principles in the judgment below is without merit.

1) Evidence that the fire of this case began from the beginning of the cigarette butt of Defendant A is only the statement of Co-Defendant B. However, Defendant B was indicted as an accomplice in the crime of realization of Defendant A in this case as a person who smokes tobacco in the same space as Defendant A and was brought a lawsuit as Defendant A and co-defendant in the relevant civil litigation (Seoul Central District Court 2013Gahap559838, etc.). It is true that there is a motive to make a false statement in order to avoid his/her civil and criminal responsibility.

그러나 가) 피고인 B은 화재 직후 출동하였던 경찰관과 소방관으로부터 '담배를 피웠냐?'는 질문을 받고 아니라는 답변을 한 뒤(피고인 B은 피고인 A으로부터 담배를 피우지 않은 것으로 하자는 제안을 받고 그렇게 하기로 합의하였다고 진술하였다), 그 후 얼마 지나지 않아 소방관으로부터 '매장 CCTV가 복원이 되었는데 피고인들이 담배를 가지고 나가는 모습이 찍혔고 그 후 발화가 시작되었다. 솔직히 말해 달라.'는 전화를 받고 나서 그 소방관에게 '자신은 담배를 피우고 물이 들어있는 종이컵에 담배꽁초를 넣어 껐지만, 피고인 A은 불씨가 남아있는 담배꽁초를 통로에 쌓여 있던 포장용 비닐쪽으로 던졌다.'는 취지로 진술한 이래, 2회에 걸친 경찰 조사와 검찰 대질 조사 및 원심 법정에서 같은 취지로 진술하였는바, 위 각 진술이 구체적이고 일관성 있는 점, 나) 이 사건 화재가 시작된 이 사건 통로 입구 쪽 목재 의자 위에는 담배꽁초가 담긴 종이컵이 발견되었고(수사기록 156, 157면), 피고인 B은 수사기관에서 '주로 피고인들과 H매장 사장이 통로 공간에서 담배를 피우는데, 통로 청소는 자신이 하기 때문에 담배꽁초가 떨어져 있는 것이 싫어 종이컵을 가져다 놓았고, 자신은 담배꽁초를 종이컵에 버리는 편이지만 피고인 A은 담배꽁초의 처리에 신경을 쓰지 않고 바닥에 버리기도 한다.'는 취지로 진술하였는바(수사기록 109, 253면), 피고인 B의 위와 같은 진술은 앞서 본 화재 현장의 상태와 부합하는 점, 다) 피고인 B은 화재 직후 피고인 A으로부터 담배를 피우지 않은 것으로 하자는 제안을 받던 상황에 대하여 'X 매장이 있는 건물 2층에서 피고인 A과 대화를 하면서 담배를 피우지 않은 것으로 하자고 말을 맞췄는데, 그가 "그 불똥 때문에 이렇게 큰 불이 날 줄은 몰랐다."는 취지로 진술하여 자신의 담배 꽁초 때문에 화재가 발생하였음을 인식하였던 것으로 보였다.'는 취지로 구체적이고 일되게 진술한 점(수사기록 111, 256, 346면) 라) 피고인 A은 당시 담배꽁초를 어떻게 처리하였는지에 대하여 원심 법정에서 '담배꽁초를 털고 나서 나머지를 매장 입구 쪽에 물이 들어있던 컵에 버렸다.'고 진술하였으나, 그 이전에 수사기관에서는 '잘 기억이 나지 않는다.'는 취지로 그 진술을 회피하는 태도를 보이면서도 '피고인 B이 그렇게 진술을 하면 인정하겠다.'는 취지로 공소사실을 인정하는 듯한 태도를 보였던 점(수사기록 347면), 마) 피고인 B은 소방관으로부터 매장 CCTV가 복원되었다는 말을 듣고 피고인 A에게 전화를 걸어 그 통화내용을 녹취하였는데, 그 내용에 따르면 통화 당시 피고인 B의 '네가 담뱃재를 털어가지고 불똥이 거기로 들어가는 걸 내가 봤단 말이야.'라는 말에 피고인 A은 '이니 그걸 봤으면 끄면 되지.'라고 진술하여 이를 인정하는 듯한 태도를 보인 점(수사기록 362면)을 종합하여 보민, 피고인 B의 진술은 신빙성이 있다.고 판단되고, 단지 피고인 A과 이해관계가 충돌되어 히위로 진술할 동기가 있다는 가능성 외에 신빙성을 의심할 만한 다른 정황이 없는데도 피고인 B 진술의 신빙성을 부정할 수는 없다.

2) After 7 minutes and 46 seconds after the Defendants returned to the store, the Defendants confirmed that the smoke occurred in the passage of this case was out of the store (in the face of 94 pages), and the visitors to the store of this case during that time appears not to have been able to have delivered food to the Defendants’ order. In light of the causes of the instant fire that occurred in the cigarette butts, a certain time seems to take place to a degree of time to make it possible to distinguish the tobacco at a long range. Accordingly, there is sufficient possibility that the Defendants did not witness even if a fire had already occurred, L, which was delivered to the Defendants at 1 minute 58 seconds after the Defendants got out of the store, even if the fire had already occurred.

3. Judgment on the prosecutor's assertion of mistake of facts

A. The judgment of the court below

원심은 피고인 B(이하 3.항에서 '피고인'이라고만 한다)에 대한 이 사건 공소사실에 관하여, 1) 피고인의 수사기관에서의 각 진술을 종합하여 보더라도 피고인은 물이 들어 있는 종이컵에 담배꽁초를 적셔 불을 껐다는 것이므로 피고인의 행위로 이 사건 화재가 발생하였다고 볼 수 없고, 2) 피고인이 피고인 A과 함께 담배를 피운 뒤 피고인A이 담배꽁초를 포장용 비닐 등이 있는 쪽으로 던지는 장면을 보았다는 것만으로는 피고인이 그러한 선행행위를 초래하였다거나 그 밖의 이유로 피고인이 피고인 A의 위 행위에 대한 보증인적 지위에 있었다고 보기 어려우며, 달리 피고인에게 피고인 A이 던진 담배꽁초에서 불이 옮겨 붙어 화재가 발생할 위험이 있는지를 확인할 형법상 주의의무가 있다거나 서로 의사를 연락하여 이 사건 화재를 발생하게 하였다고 볼 자료가 없어 형법 제30조의 공동정범의 관계가 성립한다고 볼 수도 없다는 이유로, 피고인에게 무죄를 선고하였다.

B. Judgment of the court below

However, in full view of the following circumstances acknowledged by the evidence duly admitted and investigated by the court below and the court below, it is reasonable to deem that the defendant caused the fire in this case by competing negligence with the defendant who left the site only without confirming the existence of the satise of the satise of the satum of the satum of the cigarette butts, even though the defendant showed that the satum of the satt, which is not completely cut out of the satise, and the satise of the satise of the satise of the satise of the satum of the satum, although the defendant showed that the satise of the satum of the s

1) The Defendants had been aware of ten years ago, and Defendant A had been in charge of managing “G” stores within the building in Namyang-si, Namyang-si. Defendant A managed the store in this case. Defendant A was in charge of the store in addition to the store in this case’s. The store in this case’s fire was in place of the store in this case’s house, and the store in this case’s house was in place of the store in place of the store in this case’s house, and the Defendants visited the store in order to carry out the store in this case’s house, and the store in this case’s house was in place of the director’s shop in place of the store in order to carry out the store in this case’s house. The Defendants were in place of the store in this case’s house in which they had been waiting for the store in this case’s house in which they had been in place of the company in place of the company in charge of the good faith in accordance with the labor contract, and the employees have the duty of care not to cause damages to the employer’s human and material resources.

In addition, even though the defendant's duty of care to consider the interests of the employer does not go out of the place of business in nature, it is reasonable to view that the duty of care of the worker to take account of the interests of the employer is still a duty to bear not only the working hours but also the rest hours (see, e.g., Supreme Court Decisions 93Da23152, Dec. 22, 1994; 93Da23152, Dec. 22, 1994).

3) Meanwhile, the passage of this case is not a business space for the store of this case, but was stored with wastes, such as paper boxes and vinyls for packing of clothing, etc., generated in the store of this case, and the air conditioners of the store of this case were installed, and it was mainly managed by the Defendant, who is the occupation of the store of this case, clean up and manage the store of this case.

4) Therefore, it is reasonable to deem that Defendant A had a duty of care under an employment contract or at least a duty of care in cooking, where he/she observed that the risk of the burial of this case occurred during working hours, i.e., the risk that he/she had to actively remove the risk, if he/she observed that he/she was on the part of a vinyl, etc.

5) In the prosecutorial investigation, the Defendant stated that “I am as a plastic butt? I think I am as to whether I am a plastic butt we can get out of the door,” and that I am just because I am am a cigarette butt in the direction of the burial.” (In light of the investigation record 346 pages) and that I am a very wind at the time, the Defendant could have sufficiently predicted that the fire could have occurred due to B's cigarette butt.

4. Conclusion

Therefore, since the appeal by the defendant A is without merit, it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act. Since the prosecutor's appeal against the defendant B is well-grounded, pursuant to Article 364 (6) of the Criminal Procedure Act, the part of the judgment of the court below as to the defendant B among the judgment of the court below is reversed and the defendant's appeal against the defendant B is again decided as follows (However, pursuant to Article 25 (1) of the Rules on Criminal Procedure, "the defendant is "B waves" and "an employee whose eight names are unknown" as "U", and "1. B's court statement" as "the witness's statement in the second trial record" is respectively dismissed.

Criminal facts

At around 12:20 on April 9, 2013, the Defendant and A were unable to smoke tobacco at the passage between “G” store in the F Building in Namyang-si, Namyang-si, and “H” store. After smoking tobacco, A entered “G store with an abnormal abnormal who was placed in the above passage and the Defendant left with a vinyl for packing clothes.” At the same time, the above abnormal and clothing plastic products could have easily been put to fire, and thus, it was considered that the tobacco butts, which were not removed by A, were stored in a package with an abnormal and packing plastic container, the Defendant had the duty of care to prevent the occurrence of fire in advance by checking whether the living condition of the tobacco butts was completely removed.

Nevertheless, the Defendant neglected the above duty of care and caused a fire to the given vinyl, etc. due to negligence while leaving the site of A without leaving the site, and continued to spread to the entirety of the above F building (the total floor area of 380.91m) including ‘G' stores, ‘J' stores, and the above F building (the total floor area of 380.91m).

As such, the Defendant destroyed the temporary structure equivalent to the market price of KRW 1,740,873,60 by negligence.

Summary of Evidence

The summary of the evidence recognized by this court is as follows: (a) deleted “1. Defendant B’s legal statement” and instead add “1........ part of the witness A’s statement in the second protocol of the court below’s second protocol of the court below; and (b) add “part of the prosecutor’s self-examination protocol against the Defendant;” and thus, it is identical to the corresponding column of the court below’s judgment. As such

Application of Statutes

1. Article applicable to criminal facts;

Articles 170(1) and 164 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges

The presiding judge, inspector and police officer;

Judges Kim Jae-sik

Judge Park Jae-il

Note tin

1) The Defendants’ passage between “G stores” and “H” stores as a space where tobacco was smoked immediately before the fire refers to the passage in the instant case.

section 3.

2) However, although the prosecutor prosecuted the Defendants as co-principal in the crime of realizing fire, the co-principal in the crime of negligence, but the co-principal in the crime of negligence, is jointly objective and intention between the actors.

The case is established when satis (see, e.g., Supreme Court Decision 97Do1740, Nov. 28, 1997). The case merely satisfing tobacco.

Since it is difficult to see that the Defendants had a common objective, the above legal doctrine of co-principal cannot be applied to the Defendants. However, each of the Defendants cannot be applied.

It can be recognized that the fire of this case occurred by negligence. The defendant's exercise of his right of defense in light of the contents of his argument and the process of proof.

Since there is no disadvantage, it is recognized that the above defendant is a single criminal defendant without any changes in the indictment as stated in the following facts.

3) This is the same even if the Defendant was employed through Defendant A, a store owner, not directly employed by the store owner.