2017No122 Occupational, etc.

A

Defendant

Han Dong-dong (Public Prosecution), Red Civil (Public Trial)

Attorney W.

Daegu District Court Decision 2016No708 Decided December 15, 2016

February 21, 2018

The judgment of the court below is reversed.

The accused shall notify publicly the summary of the judgment of innocence.

1. Summary of grounds for appeal;

A. Error of mistake

Multi-ice progress with students, such as victims, etc., is called "a so-called dice dice," and they go into the sea from the sea, and therefore, they cannot be said to have a duty to wait for the rescue line because they go in front of the dice shop. In addition, the defendant ordered a marine rescue team's M instructor to wait at the ground supervisor in front of the dice shop, and assigned three local posters as ground structure personnel. The defendant fulfilled his duty of care as a person responsible for the dice shop. Nevertheless, the court below found guilty of the facts charged in this case and erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The sentence (one year of imprisonment without prison labor, two years of suspended execution, and two hundred hours of community service order) imposed on the accused by the court below is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Summary of the facts charged in this case

The Defendant, as a representative of the “E Egypt, which is an enterprise that provides general customers with diverse experiences in D regions, was in charge of the operation and management of cooking and employment of instructors, and F was in charge of the work of Egypt from June 11, 2015 to the Sgypt of Egypt from around 11:40 on July 7, 2015, under the direction of the Defendant, as the representative, the F was in charge of the education of the victim G (30 years of age) who is the student at the sea before D from July 11:40 on the same day to 12:00 on the same day and the H, leading the victim G (30 years of age) who is the student at D and H from the sea from around 12:0 on the same day.

In the process of the propy Instructor Association (PADI), it is necessary to observe the student divers continuously except that ice ice divers, or that divers or divers divers divers divers divers divers divers divers divers divers divers or divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers divers.

Nevertheless, after reaching the last 32 meters of the water depth, F had the victims and H undergo education, without continuously observing the students, by failing to observe them at a speed of about 40,5 meters, and followed the Defendant, due to the sudden increase in respiratory water level, and then had the breath and the breath found the breath and the breath to be delayed. On July 5, 2015, the Defendant was missing on the part of the Republic of Korea Daber 3, who was undergoing the scood ice education from E, but the Defendant was unable to move the 3-lane at the J shop to the above 4-lane in preparation for the occurrence of the accident, and the Defendant was unable to move the 4-lane after the death of the victim to the above 2-meter 2,3 minutes after the above 4th of the breath and the 3-meter 4th of the 2nd of the 2nd of the 2nd of the 3th of the 2nd of the death.

B. Judgment of the court below

The lower court found the Defendant guilty of the instant facts charged on the grounds indicated in its reasoning.

C. Judgment of the court below

1) The Defendant’s negligence stated in the facts charged is that “the Defendant has a duty of care to ensure the smooth implementation of emergency rescue, such as continuous examination of whether the ground supervisor is waiting, in order to respond to an accident, namely, a rescue line, etc., and to the minimum extent possible.” However, the Defendant did not prepare human resources or rescue equipment such as the ground supervisor in preparation for the occurrence of the accident while moving the place of education to the scooda ice training.”

2) However, comprehensively taking account of the following circumstances acknowledged by the lower court and the first instance court based on the evidence duly admitted and examined, the evidence alone submitted by the prosecutor cannot be deemed as having been negligent in preparing human resources or rescue equipment, such as ground supervisors, and it is difficult to deem that there was negligence related to safety management supervision, relief, and emergency measures.

① As the instant accident occurred, the case in which Daber, who had received education before the instant accident had been operated by the Defendant, was missing, E was in the state of suspension of business. The instant accident occurred while the Defendant provided ice education by leasing only a place at the J shop located far away from about 1km from the date of the instant accident. However, there was no evidence that the instant case did not have any circumstance, such as that the J shop where ice education was conducted on the instant day was not equipped with rescue equipment or that it was an inappropriate place to conduct ice education, and there is no other evidence that there was a possibility of an accident or its risk difference between E E and J shop.

② The Defendant is a business operator who employs scood ice instructors and engages in the business of providing scood ice education, etc. The Defendant requires a certificate of qualification for scood ice instructors to provide scood ice education, but the business operator does not require the business operator to hold the qualifications, etc. related to scood ice. In other words, the business operator is merely obligated to employ scood ice instructors with an appropriate qualification to conduct business, and an explanation of safety education or safety rules for those subject to education appears to be a role of an instructor who conducts scood ice education on the spot, and the business operator is not subject to such safety education or safety management.

(3) F, an instructor of ice, stated that he/she entered the sea without any defects after confirming the equipment of the victim before ice education. He/she entered the sea with the F instructor, and that H, the trainee who received education from the F instructor, entered the sea. It cannot be readily concluded that there was any defect in ice scoo equipment at the victim’s place of accident. There is no evidence that the Defendant’s order to remove ice ice ice equipment at the time of the accident cannot be said to be the Defendant’s fault, and that the Defendant instructed the scoo equipment used by the victim at the time of the accident (M was present at the court of first instance and stated that “the scoober equipment used by the victim was removed from the scoo equipment without any fault.” Fifth, the Defendant placed the scoo equipment on the ground near the scoo equipment at the time of the accident and stated that there was no need to remove the ice ice equipment at the time of the accident, and thus, the Defendant did not appear to have been responsible for the above scoo and other accidents.

3) Therefore, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misapprehension of facts which affected the conclusion of the judgment, and the defendant's assertion

3. Conclusion

Therefore, since the defendant's assertion of mistake of facts is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is

【Discretionary Judgment】

The summary of the facts charged in this case is the same as the statement of Paragraph A of Article 2, and as seen in Paragraph 2-C of Article 325 of the Criminal Procedure Act, since the facts charged in this case constitute a case where there is no proof of crime, it is so decided as per Disposition by the court below with a decision of not guilty in accordance with the latter part of Article 325 of the Criminal Procedure

The presiding judge, the senior judge;

delay by the judge

Judges Bo Young-man