2018No328 Injury by occupational negligence, death by occupational negligence

A

Both parties

Sheet, personal identification (prosecutions), tears (public trial)

Law Firm Jeong-chul

[Defendant-Appellant]

Seoul Eastern District Court Decision 2016Ra1623, 3462 decided February 12, 2018 (merged)

Judgment

September 6, 2018

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment without prison labor for a period of one year and two months.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misunderstanding of legal principles (2016 Highest 3462)

The lower court determined to the effect that the deceased’s low-income disease was inappropriate for the deceased to undergo an operation at the time of the operation, notwithstanding the symptoms that do not hinder the deceased’s ability to undergo the operation, and that there was no clear ground to deem that the deceased had already undergone the operation at the time of the second operation, and determined that the hospital operated by the Defendant was not equipped with the equipment of the patient room, and that the hospital was not equipped with the equipment of the patient room. In so doing, the lower court erred by misapprehending the facts, such as the Defendant’s medical practice and the presumption of causation between the deceased’s death and the medical accident of the deceased.

In addition, on the basis of the above mistake of facts, the defendant is deemed to have been negligent in violating the duty of the power source, and all of the procedures of the defendant, including the second surgery, were conducted to prevent the leakage of literature, and even if the deceased had already been conducted with satisfy, there was an error of law by misapprehending the legal principles such as recognizing the defendant's medical negligence on the basis of the fact that the procedure of the defendant is an appropriate measure, and that the defendant did not make a prior decision on all of the hospitals to the higher hospital.

2) Unreasonable sentencing

The punishment of the court below (one year and six months) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Determination

A. Ex officio determination

According to the records of this case, on January 30, 2018, the Defendant was sentenced to one year of imprisonment with prison labor for occupational negligence, etc. at Seoul High Court on May 11, 2018, and the judgment became final and conclusive on May 11, 2018. The lower court’s each crime and the crime of occupational negligence resulting in death, etc. against the Defendant are concurrent crimes under the latter part of Article 37 of the Criminal Act, and should be sentenced at the same time in consideration of the case and equity pursuant to Article 39(1) of the Criminal Act. In this regard, the lower judgment cannot be maintained. However, even if there are grounds for ex officio reversal, the Defendant’s assertion of mistake of facts

B. Judgment on misconception of facts and misapprehension of legal principles

As to the defendant's assertion that is identical to the argument in this part of the grounds of appeal, the court below rejected the above assertion in detail on the ground that the court below stated in the judgment "the judgment on the defendant's and defense counsel's assertion" in detail.

In addition to the above circumstances presented by the court below, the above judgment of the court below is just and acceptable, and contrary to the defendant's assertion, there is no error of law by misunderstanding the facts as to the existence of occupational negligence or by misunderstanding the legal principles, which affected the conclusion of the judgment.

Therefore, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the argument of unfair sentencing by the defendant and the prosecutor on the grounds of the above ex officio reversal, and it is again decided as follows (However, pursuant to Article 25(1) of the Rules on Criminal Procedure, the judgment of the court below is based on the second sentence of the judgment of the court below ex officio in accordance with Article 25(1) of the Rules on Criminal Procedure, and it is the basis to dismiss "the second sentence"

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts constituting the crime and the evidence admitted by this court is as follows: "The defendant was sentenced to one year in Seoul High Court on January 30, 2018 to imprisonment with prison labor due to occupational negligence, etc., and the judgment became final and conclusive on May 11, 2018," and except for adding "1. judgment and the result of the detailed inquiry into the case," respectively, to the summary of the evidence, it is identical to each corresponding column of the judgment of the court below. Thus, it is accepted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 268 of the Criminal Act, Article 268 of the Criminal Act, and Article 268 of the Criminal Act, selection of imprisonment without prison labor

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

The reasons for sentencing under the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act include the fact that the defendant agreed with the bereaved family members of the victim deceased and the fact that equity should be taken into account in the case where the defendant was judged at the same time as the judgment of the court of this case, and that the defendant's personality and behavior and environment, motive, means and consequence of the crime, circumstances after the crime, criminal records, etc. are considered, and the sentencing factors revealed in the oral proceedings of this case, such as the defendant's character

The presiding judge and the deputy judge

Judges Cho Jae-young

Judge Song Byung-hun