(영문) 수원지방법원 2008.4.29.선고 2007노4840 판결

However, the execution of each of the above punishment against the defendants shall be suspended for one year from the date this judgment became final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

Since Defendants fulfilled their duty of care as the director of a postnatal care center, it is unreasonable that the court below erred by misunderstanding the facts or misunderstanding the legal principles that the court below found the Defendants guilty, even though they were not criminal liability.

B. Unreasonable sentencing

In light of the various sentencing conditions in the instant case, including that the Defendants agreed with the victim’s parents 000, ** the agreement with the victim, the sentence (6 months of each imprisonment without prison labor) sentenced by the lower court is too unreasonable.

2. Determination

A. misunderstanding of facts or misunderstanding of legal principles

The main duty of a postnatal care center is to ensure that a newborn baby's body can be recovered by providing appropriate meals, physical exercise methods, etc. to the newborn baby admitted, and that a newborn baby's body can be concentrated on postnatal care by providing them on behalf of the management of the newborn baby operated by the newborn baby. However, the group management of the newborn baby and the newborn baby is inevitably incidental to the provision of the postnatal care service. The group management of the newborn baby is not an act of treatment but an act of treatment but an act of treatment and management of the newborn baby whose immunity is weak to other people, thereby increasing harm to the life and body caused by infection of the disease. Thus, unlike the work of the postnatal care provided by the general public, a person in charge of the group management of the newborn baby, unlike the work of the postnatal care provided by the general public, shall have a duty of care to take appropriate measures, such as taking care of the newborn baby's health care or symptoms, by having more knowledge than the general public, manage the newborn baby in a sanitary manner and thoroughly examining health conditions.

위 법리에 비추어 원심이 적법하게 채택하여 조사한 증거를 살펴보면, 당시 산후조 리원의 시설기준이나 인력기준 등에 관하여 법규를 통한 명시적인 규제가 없었다 하더라도, * * * * 가 2002. 11. 12. 출산한 신생아 ( 이하 ' 이 사건 신생아 ' 라 한다 ) 는 수유량이 같은 달 19. 580cc에서 같은 달 24. 340cc로 41. 4 % 나 감소하였을 뿐 아니라, 출생 후 10일이 경과한 같은 달 22. 까지도 체중이 3. 1kg으로서 출생체중인 3. 36kg를 회복하지 못한 상태에서 다시 체중이 감소하여 같은 달 26. 에는 2. 75kg으로 4일 동안 11. 3 % 감소하였고, 같은 달 25. 에는 배변 횟수가 묽은변 4회, 설사 3회를 포함하여 총 12회에 달 하였으므로, 이 사건 산후조리원의 유일한 간호사들로서 산후조리원의 운영 뿐 아니라 신생아실의 아기에게 이상이 발견되는 경우 병원에서 진찰받도록 하여야 하는지 여부 및 그 시기를 판단하는 업무를 담당하던 피고인들로서는 이 사건 신생아가 의사나 한 의사 등 전문가의 진찰을 받을 수 있도록 조치를 취하여야 할 주의의무가 있음에도 불구하고, 전문가의 진찰을 받도록 하지 않은 채 오히려 이 사건 신생아의 질병을 치료하는 효과가 있는지 불분명한 * * * 이라는 약을 권유하고 그 후 일시적으로 설사 증세의 호전을 보이자 그대로 경과 관찰만 하였던 것은, 신생아의 집단관리 업무를 책임지는 사람으로서의 업무상 주의의무를 위반하였다고 보는 것이 상당하다 .

In addition, even if there is a possibility that the newborn baby of this case would have died because it was not abnormal due to the salute, but due to the occurrence of salute, according to the results of the fact-finding with the Korean Medical Association, the above salute infection seems to have been damaged by the removal of the funeral due to the snow of the newborn baby of this case, and infection on the damaged part. Thus, whether the direct cause of the death of the newborn baby of this case is a salute infection is only the difference between the negligence of the Defendants and the middle route of the causal relationship with the death of the newborn baby of this case, and as long as the salute and salute are all caused by the loss of an opportunity for medical treatment by the loss of an opportunity for direct saluteing the salute and salute, it is difficult to view the above difference as an essential difference as it eventually causes the death of the newborn baby of this case by identifying the cause of the death by the doctor, herb doctor, etc. of this case.

Therefore, the judgment of the court below which found the Defendants guilty of occupational negligence resulting in death is just, and there is no error of law by misunderstanding facts or by misunderstanding legal principles, which affected the conclusion of the judgment. Thus, this part of the appeal by the Defendants is without merit.

B. The Seoul High Court 2007Na2007 or ** the appellate court, the defendant's parent of the victim of unfair sentencing, *** the defendant's 200, * the above 000, *** the above 000, *** the defendant's agreement as the mediation was concluded in the case *** the above 000, **** the defendant's agreement (as the above mediation was completed according to paragraph 5 of the protocol of the case of the Seoul High Court, the above mediation was stated as substitute for the agreement in this case) and all of the sentencing conditions in the records and arguments of this case, including the fact that the court below sentenced the defendants to six months of each imprisonment without prison labor, is too unreasonable, and there is reason to discuss this part of the appeal by the defendants.

3. Conclusion

Therefore, since the defendants' appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

Since each corresponding column of the judgment below is the same as that of the judgment below, it shall be quoted 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;

Articles 268 and 30 of the Criminal Act (Selection of Imprisonment without prison labor)

1. Suspension of execution;

Article 62 (1) of each Criminal Code (Consideration of Grounds for Destruction)