2012No3999(a) Occupational Death, etc.

(b) Injury by occupational negligence;

(c) Violation of the Installation, Maintenance and Safety Control of Fire-Fighting Systems Act;

1.(a)(c) A;

2.(a)(c) B

3.(a)(c) 3.

4.(b)(D)

5.(b) E

Defendants

Is-in cooperation (prosecution), stuffed people, Kim Jong-woo (Public trial)

Law Firm G (for all the defendants)

Attorney H, I, and J

Busan District Court Decision 201Da4339 Decided November 28, 2012

May 10, 2013

Part concerning Defendant B and C in the judgment of the court below shall be reversed.

The above Defendants shall be punished by imprisonment with prison labor for three years. The appeals by Defendants A, D, and E are dismissed. Of the facts charged in the instant case, Defendant B and C are not guilty of the closure and blocking of fire-fighting systems around October 2009.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) Defendant B and C (as to the violation of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act)

The above Defendants and Co-Defendant F of the lower court’s closure of an emergency exit, which was installed adjacent to 25th around October 2009, merely closed an emergency exit, which was additionally installed without the duty to install in accordance with the advice of the Busan Fire-Fighting Station (hereinafter “Fire-Fighting System Act”) and does not constitute a “person who closed or block fire-fighting systems, etc.” under Articles 48 and 9(3) of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act, and thus does not constitute a violation of the Fire-Fighting System Act. 2) Defendant A, B, and C (the crime of occupational death and bodily injury caused by occupational negligence)

With respect to the closure of emergency exit installed adjacent to the 25th of October 2009, it cannot be deemed that the above Defendants violated their duty of care in relation to the instant fire accident. As to the management of the fire alarm devices and the fire alarm devices, the above Defendants did not prevent the Defendants from operating by sticking to the recovery stop server of the receiver at the time of the instant fire accident, and the Defendants were under regular and occasional inspections on the normal fire alarm devices and the manual fire alarm devices, etc., and therefore, the above Defendants were under the duty of care. Thus, there was no violation of their duty of care in relation to this part.

3) Defendant D and E (the crime of occupational death and bodily injury by occupational negligence)

In light of the circumstances at the time of the occurrence of the instant fire accident and the measures taken by the said Defendants at the fire site, it is difficult to recognize that the said Defendants violated their duty of care, and it is difficult to deem that there is a possibility to expect the said Defendants to take more measures, such as actively evacuation or rescue the customers, etc.

B. Unreasonable sentencing

Each sentence sentenced by the court below to the defendants (the 4 years of imprisonment for each of the defendants A, B, and C, the 4 years of suspended execution for the 2-year imprisonment without prison labor, the 4 years of suspended execution for the defendant E, and the 4 years of suspended execution for the 2-year imprisonment without prison labor) are too unreasonable.

2. Judgment on the assertion of mistake of facts or misapprehension of legal principles (as to the defendants)

A. Determination on the assertion that the crime of violating the Fire-Fighting Systems Act is not established (Defendant B and C)

1) Summary of this part of the facts charged

An interested person of a specific fire-fighting object (owner, manager, occupant, and occupant) shall install or maintain fire-fighting systems, etc. to be equipped in consideration of the size, purpose of use, number of visitors, etc. in accordance with the fire safety standards, and shall not conduct any act such as closing, locking, or blocking fire-fighting systems, etc. in maintaining and managing fire-fighting systems, etc. which may interfere with the function and performance of the fire-fighting system. Both Defendant B and C were related persons who are managers and occupants of the 3rd floor M stores of the Busan Jin-gu Busan Special Metropolitan City (hereinafter referred to as the “the instant entertainment tavern”), which is a specific fire-fighting object, of which three emergency exits are installed when obtaining permission to change the purpose of use of the instant entertainment tavern business from entertainment tavern business around June 22, 209. However, around October 25, 2009, the instant entertainment tavern was installed in an emergency exit installed adjacent to the entrance of the instant entertainment tavern, and opened the door to the outside of the lower court by combining it with the outside of the fire-fighting system.

2) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the evidence duly admitted and examined by the lower court.

3) The judgment of this Court

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, ① Articles 48 and 9(3) and (1) of the Fire-Fighting Facilities Act, it is reasonable to interpret that the act of closing or blocking fire-fighting systems installed or maintained in accordance with the fire safety standards determined and publicly notified by the Administrator of the National Emergency Management Agency is subject to punishment. ② According to the results of inquiry into the Busan Fire-Fighting Station, in the case of entertainment tavern, one indoor stairs and one outdoor escape room are already installed in accordance with the Building Act and the Special Act on the Safety Control of Publicly Used Establishments, and there is no need to install additional emergency exit in addition to the above two offices in accordance with the fire safety standards. ③ However, it is difficult to view that the Busan Fire-Fighting Station installed in the Busan Fire-Fighting Facilities to have installed the emergency exit and exit around the main entrance and exit of the fire-fighting facilities to the extent that it is obviously difficult to establish the emergency exit and exit in accordance with the above 20th direction of the head of the Busan Fire-Fighting Facilities.

4) Sub-committee

Therefore, among the facts charged in this case, the part concerning the closure and blocking of a fire-fighting system around October 2009 against Defendant B and C constitutes a case where there is no proof of criminal facts, and thus, the court below found Defendant guilty of this part of the facts charged in this case under the latter part of Article 325 of the Criminal Procedure Act, but the court below found Defendant B and C guilty of the violation of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act, and there is an error of law that affected the conclusion of the judgment

B. Determination on the assertion of denial of duty of care

1) A judgment on the alteration of the emergency exit around October 209 (Defendant A, B, and C) was made on the following circumstances, i.e., the number of emergency exit near the main entrance and exit, and the two emergency exit near the main entrance and exit at the time of the fire was recommended to install additional emergency exit in the opposite part of the main entrance and exit at the time of the fire. ② Defendant B and C made the emergency exit pursuant to the above instruction and installed the main entrance and exit on the front door to the main entrance and exit of the instant emergency exit, and Defendant B and C installed the main entrance and exit on the front door of the instant emergency exit to the extent that the emergency exit and exit were not easily removed from the main entrance and exit, and Defendant B and Co-Defendant C installed the main entrance and exit to the main entrance and exit of the instant case to the extent that the emergency exit and exit could not easily have reached the main entrance and exit of the instant case, and Defendant B and Co-Defendant C installed the main entrance and exit to the main entrance and exit of the instant case to the outside.

Comprehensively taking account of the above circumstances, even if the above defendants' act of closing the emergency exit of this case installed in the entertainment tavern of this case and removing a contact-style bridge does not constitute the act of closing or blocking fire-fighting systems under the Fire-Fighting Systems Act, it can be sufficiently recognized that they violated the duty of care required for business by arbitrarily closing the emergency exit installed in accordance with the recommendation of the competent fire-fighting department. The above assertion by the defendants A, B, and C is without merit.

2) Determination as to neglect of management, such as fire fighters (Defendant A, B, and C), the following circumstances that can be recognized by comprehensively taking into account the evidence duly adopted and examined by the lower court (i.e., each of the instant entertainment bars is separated, and each of the instant entertainment bars is installed with soundproof facilities, so it is difficult to readily recognize the external situation of the fire in the event of a fire, and thus, the fire conditioning devices and fire alarm devices, which are alarm equipment, must normally operate. The survivors and employees of the instant fire accident, are deemed to have consistently stated that there was no fact that the fire alarm level was sounding at the time of the instant fire accident; and (ii) images installed at the right side of the fire fighters and fire alarm devices installed at the right side of the instant entertainment bars.

(6) According to the image of the above-mentioned emergency bell, etc., the defendants can find out that there was no possibility of an emergency bell to receive the emergency bell, and that there was no possibility of an emergency bell to receive the fire, and that there was no possibility of an emergency bell to receive the fire, and that there was no possibility of an emergency bell to receive the fire in the absence of an emergency bell, and that there was no possibility of an emergency bell to receive the fire in the absence of an emergency bell, and that there was no possibility of an emergency bell to receive the fire in the absence of an emergency bell from time to time to time to time to time to time to time to time to the public.

Defendant A, B, and C’s above assertion are without merit.

3) Determination on the avoidance of relief measures and the neglect of customers (Defendant D and E) also asserted that the court below did not have a duty of care in light of the circumstances at the time of the occurrence of the instant fire as well as the position of the said Defendants in the entertainment tavern as the grounds for appeal in this part. The court below rejected the above assertion by finding the Defendants guilty of the facts charged against the said Defendants. A thorough examination of the evidence duly adopted and examined by the court below, the judgment that the said Defendants committed a violation of duty of care by avoiding relief measures or neglecting their entrance and exit to customers is just even if this court did so, and there is no error of law that affected the conclusion of the judgment by misunderstanding of facts.

Defendant D and E’s above assertion are without merit.

C. Determination on the assertion on the possibility of expectation (Defendant D, E), and in order to determine whether there is a possibility of expecting a lawful act by the defendant, the possibility of expectation should be determined from the perspective of the average person, instead of the actor, under specific circumstances at the time of the act (see Supreme Court Decision 2005Do10101, Oct. 23, 2008). In full view of the facts acknowledged by the court below as criminal facts, it is difficult to see that in the same circumstances as the above defendants, the average person operates an emergency bell more actively or notifies the customers of the fire, and it is difficult to expect the customers to perform their duties such as aiding them to properly evacuate.

Defendant D and E’s above assertion are without merit.

3. The judgment on the assertion of unfair sentencing (defendant A, D, and E) appears to have been made on the grounds that the above Defendants made efforts to reduce damage caused by the fire of this case to the victims, such as giving off the blocking to the employees after the occurrence of the fire of this case and ordering them to report it to 119. Defendant D reported the fire of this case to 119. Defendant E stated that Defendant E should evacuated with some customers on the 25 occasions, and evacuation with some customers. Defendant E did not immediately notify the victims of the occurrence of chemical agents by making a prompt decision when he discovered the first postponement. However, Defendant E was negligent in not only because the victims of the fire were sprinked in a fast spreading situation with the entire entertainment drinking house of this case and did not have any specific power to rescue the victims, but also there was no specific power to criminal punishment other than the fine of this case, but also that Defendants E and E, a family member of this case had no authority to protect the victims of the crime of this case, and Defendant E, a family member of this case, had no authority to protect the victims of this case.

However, the instant fire accident brought about a stimulious result by reducing nine stimulous lives, and three stimuls among those who died in a foreign country, which is not a high country, and it is apparent that the instant fire accident, which brought about the result of such a stimulative loss of human lives, occurred due to the concurrentness of the said Defendants’ negligence. Therefore, the said Defendants cannot be subject to strict criminal liability.

In particular, Defendant A, as the president of the instant entertainment tavern business, was well aware of the structure and facilities of the instant entertainment tavern than anyone among the Defendants, caused enormous damages by failing to perform his duty of care for fire-fighting facilities, etc. of the instant entertainment tavern. Although the instant fire occurred at the second floor of the same building on November 7, 2011, which was six months before the occurrence of the instant fire, Defendant A did not take any measures on the installation of the instant entertainment tavern, fire-fighting systems, and employee training conditions, etc. In addition, if each room is separate as the instant entertainment tavern, and is in a situation where soundproof devices are installed, it would be too difficult to find a fire early on the ground that the fire could not have been found, even if there was a fire, and therefore, it would be too important to maintain the function of the instant entertainment tavern facilities, such as the fire alarm devices, etc., and, in light of the aforementioned circumstances, the Defendant’s act of immediately spreading the performance of the instant fire alarm devices, etc. immediately after the occurrence of the instant fire to the employees.

In addition, Defendant D is an employee who works for the long time in the entertainment drinking house of this case among his employees, and is relatively aware of the structure of the entertainment drinking house of this case. Considering the number of customers who had been in the entertainment drinking house of this case at the time of the fire of this case, even if the above Defendant was expected to have participated in the evacuation of customers at the early stage, he cannot waive his role as an employee from the early stage of the fire and may not be held liable for the above Defendant who had been absent from the entertainment drinking house of this case. Defendant E is the only employee who had entered 25 places with the knowledge of fire occurrence among his employees. The above Defendant E is an employee with the erroneous judgment in the crisis consciousness of the above Defendant, and it cannot be held liable for the above Defendants’ occupational negligence after considering the circumstances of the fire of this case, even if the above Defendants were to have lost their responsibility for the above Defendant’s occupational negligence after the occurrence of the fire of this case.

The defendant A, D, and E's allegation in this part is without merit.

4. Conclusion

Therefore, the part of the judgment of the court below as to Defendant B and C concerning the closure and blocking of a fire-fighting system around October 2009 is reversed as seen above. Thus, the court below cannot be exempted from reversal of the whole judgment of the court below in relation of concurrent crimes by sentencing one punishment as to Defendant B and C together with the remaining crimes in relation to the closure and blocking of a fire-fighting system around October 2009. Thus, without examining the argument of unfair sentencing in accordance with Article 364(6) of the Criminal Procedure Act, the part of the judgment of the court below as to Defendant B and C among the judgment of the court below as to Defendant B and C is reversed, and it is again decided as follows after oral pleadings under Article 364(4) of the Criminal Procedure Act, since all appeals of Defendant A, D, and E are without merit, and they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act (However, if the decision of the court below ex officio under Article 25 of the Rules on Criminal Procedure is added to each victim's sight list omitted

Criminal facts and summary of evidence

The summary of facts and evidence against Defendant B and C recognized by this court is the same as the description of each corresponding column of the judgment below except for deletion of Paragraph (1) of the facts constituting the crime. Thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 268 and 30 of the Criminal Act, Articles 48 and 9(3) of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act, Article 30 of the Criminal Act (the point of closing or blocking fire-fighting systems)

1. Commercial competition;

Articles 40 and 50 of each Criminal Code (the punishment stipulated for the crime of occupational death and bodily injury by occupational negligence, between crimes of occupational negligence and bodily injury by occupational negligence, between crimes, and punishment for the crime of occupational death by occupational negligence against BM with the largest punishment)

1. Selection of punishment;

Selection of imprisonment for the crime of occupational death, violation of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act, respectively.

1. Aggravation for concurrent crimes;

The reason for sentencing under the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act, and Article 38(1)2 and (2), and Article 50 of the same Act, are as follows: (a) Defendant B and C were not in the entertainment tavern at the time of a fire; (b) the Defendants were punished for the same kind of crime; (c) there was no record of criminal punishment other than fines; (d) there was no agreement with the spouse of Sri Lankan; (b) there was no agreement with the rest of victims; (c) but did not reach an agreement with the rest of victims, but they deposited a certain amount of money to the bereaved family members of the deceased caused by the fire; (d) the scope of compensation for damages becomes final and conclusive through future civil litigation;

However, the instant fire accident brought about a stimulous result by reducing nine severe lives, and three of the death victims were killed in a foreign country, not a high country. However, it is apparent that the instant fire accident, which brought about the result of the above participation, was caused by the concurrence of the said Defendants’ negligence. Thus, the said Defendants cannot be subject to strict criminal liability.

In particular, the above Defendants appears to have the largest power to make decisions on the installation of safety facilities such as fire-fighting systems and alarm facilities as the owner of the entertainment drinking house in this case. Although the Defendants, as the owner of the entertainment drinking house in this case, are obligated to take maximum safety measures to prevent harm to the life and body of the facility users, they closed the emergency exit of this case, which was additionally installed at the time of the interior work of the entertainment drinking house in this case. The reasons for the closure of the emergency exit of this case, which was for the purpose of increasing operating profits by using the singing machine and singing, showed a typical behavior of safety in light of the fact that it was for the purpose of installing the singing machine and increasing operating profits by singing, it is difficult to exempt the Defendants from liability even if they did not normally operate the warning facilities such as portable emergency lighting, fire alarm, and emergency bell reception. Considering the seriousness and consequence of the negligence of the above Defendants as the owner of the entertainment drinking house in this case, the Defendants still did not have the duty of care and punishment to the victims of the above accidents.

The summary of this part of the facts charged is as stated in Article 2-1(a)(1) and Article 2-1(3) of the Criminal Procedure Act, as seen in Article 325(1) of the Criminal Procedure Act, since this part of the facts charged falls under the case where there is no proof of crime, the defendant B and C shall be acquitted.

The number of judges of the presiding judge;

Judges Kim Young-chul

Judges, Chief Judge

1) If a fire breaks out, the internal customers of the room shall be forced to take out the images and sound of the singing machine with an emergency warning, and the images and sound of the singing machine are forced.

Safety facilities installed to more easily inform the occurrence of fire;