(영문) 대법원 2016.4.15.선고 2015도15227 판결

Even though a person who is legally obligated to act to prevent infringement of legal interests prohibited under the Criminal Act can easily prevent the occurrence of consequence by performing his/her duty, failure to perform his/her duty by allowing and neglecting the occurrence of result may be punished as an omission if it can be evaluated as the commission of a crime. Here, the duty to act is recognized not only by statutes, legal acts, and prior acts, but also by cases where the duty to act is expected under the good faith principle, social rules, or sound reasoning (see, e.g., Supreme Court Decision 2007Do9354, Feb. 28, 2008).

The lower court determined that the Defendant committed a crime of de facto destruction on the ground that: (a) the Defendant, as an employee who managed the store in this case, has a duty to immediately remove the store to the extent possible when the risks to the store occur; (b) the Defendant’s working hours and rest time are not clearly distinguishable from the Defendant’s work site; and (c) the Defendant, at the roads adjacent to the store in this case where the Defendant was in charge of cleaning and management, franchis with A while smoking tobacco together with A; and (d) he had observed that the Plaintiff was on the ground of the clothes packing plastic package where it is easy for A to shoot the tobacco but without completely removing the franchis, and entered into the store, without performing his duty under a labor contract or cooking, even if he did not perform his duty, by negligence, left the site and did not perform his duty to do so.

The lower court determined that the Defendant committed a crime by failing to perform the duty under the good faith principle in light of the content of the Defendant’s labor contract, the time and place of the instant fire, the Defendant’s ordinary duty, the circumstances leading up to the occurrence of the fire, and the easiness of actions to prevent infringement of legal interests, etc., and that the Defendant committed a crime by failing to perform the duty under the good faith principle in light of the fact that the instant fire occurred, which was the duty under the labor contract and the duty to act to remove the risk, even if it was confirmed that the Plaintiff left the cigarette but did not perform the duty to act.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.