2015No3574 Occupational, etc.

A

Prosecutor

In-depth (prosecution) type, seating capacity (public trial) type;

Attorney BB

Gwangju District Court Decision 2014Dadan1238 Decided December 7, 2015

2016, 10, 27

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

① In full view of the following facts: (a) the Defendant naturally plays a supervisory role in the private diving investigation, manages the schedule, etc. of the private diving investigation, and explains and instructs the contents of the work to the private diving investigation; (b) the piracy, Navy, and the locked investigation belonging to the private sector was managed and did not participate in each other; (c) the Defendant mainly contacted with the private diving investigation; (iv) the Defendant’s contact with the private diving investigation; (v) the fact that there was a deceptive order among the locked investigation; (vi) the Defendant and the private diving investigation, including the Defendant, were dependent on the fact that the Defendant was recognized as a supervisor in the private diving investigation; and (vi) the Defendant was paid 130% remuneration compared to other private diving investigation; and (b) the Defendant is practically obligated to comprehensively manage and supervise the private diving investigation by the private sector; and (c) the Defendant is obligated to protect the life and body of the victim.

Therefore, the judgment of the court below which acquitted the defendant is erroneous by misapprehending the facts and affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

The defendant is a director of "D Co., Ltd., a marine underwater construction company located in Jung-gu Incheon Metropolitan City," and from April 21, 2014, the defendant is a person who takes charge of search work for missing persons in the field of sinking accidents and manages and supervises the search work of missing persons under the private diving investigation of D Co., Ltd. in general.

On May 6, 2014, at around 06:07, the Defendant ordered DNA Co., Ltd. (D Co., Ltd.), including victim FF (E and 52 years of age), to lock water using diving equipment (E and GH’s guidelines) for the secondary search of the fifth floor of the sunken E, in the sea of approximately 1.5 E on May 6, 2014.

The diving for diving installation is a work requiring high diving technology, and there is a risk of a human life accident in the event of suspension of air supply during the long-hour diving work, and a diving investigation with high blood pressure is likely to cause a safety accident due to high underwater pressure during underwater work. In the event of an emergency during the work, there was a risk of a death accident unless the first aid is provided.

In such cases, a person who manages and supervises the duties of search for missing persons shall have the sericultural investigation officers take sufficient rest and stability and shall provide sufficient education and explanation on underwater work matters, and a person whose work ability is not verified by checking whether he/she holds a professional diving certificate, etc. shall be excluded from his/her work, and shall prepare for immediate countermeasures in the event of an accident by failing to leave the site until the sericultural investigation is returned, and shall prepare for an accident immediately after the occurrence of the accident, and where he/she uses surface water supply equipment, he/she shall fill and lock assistive air in preparation for the situation in which the air supply is suspended, and take measures to prevent safety accidents, such as checking whether he/she can take diving by checking health conditions, such as blood pressure, etc. of diving investigation, etc.

There was a duty of care to take action.

Nevertheless, the Defendant neglected this and ordered the victim, a private diving who belongs to D Co., Ltd., to diving to set divings, without a professional diving certificate, caused the victim with high blood pressure to divings without putting the assistive air leash in preparation for suspension of air supply. On May 6, 2014, the Defendant caused the victim to get out of the work location, and caused the victim to be out of the work location, and caused the victim to death in an emergency hospital at the Gemule at the time of treatment, around 07:36 on May 6, 2014, by failing to sufficiently provide education and explanation about the work, and caused the victim to suffer from respiratory distress caused by the exposure to air supply of the victim at a horizontal point at a point 21 meters in the underwater depth on May 6, 2014.

B. The judgment of the court below

(1) Whether legal obligations are obligations

According to Articles 5, 13, and 17 of the former Rescue and Aid at Sea and in the River Act (amended by Act No. 12844, Nov. 19, 2014; hereinafter the same), a legal obligation to prevent risks to life and body of a locked investigation is imposed on the head of the Rescue and Aid Center who directs the activities of aquatic rescue and relief. According to Article 29 of the former Rescue and Aid at Sea and in the River Act, the head of the Rescue and Aid Center may permit persons or organizations to engage in aquatic rescue and relief activities to the necessary extent, and the person ordered to engage in aquatic rescue and relief activities shall engage in aquatic rescue and relief activities under the direction of the head of the Rescue and Aid Center. According to the records of the case, the order issued to the Defendant on April 19, 2015 to engage in aquatic rescue and relief activities on May 26, 201; the duty assigned to the Defendant according to the order to engage in aquatic rescue and relief activities; the duty assigned to the Defendant under the supervision of a locked investigation.

(2) Whether a contract is contractual

According to the records of this case, it is acknowledged that there was no separate contract between the rescue headquarters, Korea, G (hereinafter “G”) or D Co., Ltd. (hereinafter “D”), the defendant and the above K entered the site to receive contact from G and to nurture E, but became aware of the missing person and participated in the search work of the missing person. There was no contract between G and D on the search work of the missing person. There was no contract between G and D on the search work of the missing person, but it was not affiliated with D, but there was a private locked investigation that was not affiliated with D, and it was not affiliated with D, and the high F diving investigation was not affiliated with D, and it was not connected to D through D. Accordingly, it cannot be deemed that the defendant had a contractual duty to prevent the danger of life and body as a whole of the private investigation or to prevent any danger of personal injury.

(3) Whether it is a cooking or de facto duty

According to the records of this case, on April 16, 2014, the following facts were revealed: (a) a group of civilian diving investigation officers entering the scene through G or D immediately after the sinking of E; (b) the head of the rescue headquarters or the pan-government accident response headquarters for the search of missing persons; (c) the Defendant and G chief directors expressed their opposing opinions to the effect that they can sufficiently engage in the search of missing persons; (d) the Defendant and P did not take into account the opinions of P; (e) the Defendant and D did not participate in the investigation; (e) the Defendant and the private police investigation into the vessel were missing; and (e) the Defendant were not in charge of the investigation into the marine environment at the time of the search and investigation into the vessel; (e) the Defendant and the private police investigation into the vessel were missing; and (e) the Defendant did not have any authority to conduct the search and investigation into the vessel at the time of the search and investigation into the vessel; and (e) the Defendant did not have any authority to conduct such investigation into the vessel at the time of the vessel.

In full view of the following circumstances established by the court below's duly adopted and investigated evidence, the court below's judgment that held that the defendant did not have a cooking and de facto duty to prevent danger to the life and body of the private diving investigation is just, and there is no error of law as alleged by the prosecutor.

① In full view of the following facts: (a) the authority of the Central Rescue Center to permit the private diving investigation to take part in the missing search process was the head of the Central Rescue Center; (b) most decisions were made through consultation with the civil, public, and military joint rescue team; (c) private potential investigation voluntarily made decisions through consultation; and (d) the Defendant was merely carrying out the role of delivering the order determined by such methods to the rescue center; and (b) the Defendant did not have the authority to decide whether to take part in the temporary diving investigation. Therefore, to hold the Defendant liable to the Defendant that the Defendant neglected to take part in the private diving investigation without the authority to take part in the private diving investigation, it would be held that the Defendant was responsible for not exercising the authority of the Defendant.

(2) Considering that the authority to grant duties to a water disaster rescue cooperative organization, a water disaster rescue non-governmental organization, volunteers, etc., and to direct the placement and operation of human resources and equipment is the head of the rescue center, it cannot be deemed that the Defendant had a duty of care, directly, and practically, to prevent risks to life and body of the diving investigation, solely on the ground that the Defendant, among private diving investigation, managed the schedule, etc. of the private diving investigation and explained and instructed the private diving investigation by consultation with the civil, government, and military joint rescue team.

③ In light of the fact that a civilian diving investigation, including the Defendant and the high F diving investigation, is a person called up under the order from the rescue headquarters to engage in aquatic rescue and relief activities, the head of the rescue headquarters should have been under the command of a civilian diving investigation, taking into account that the temporary organization called up for the search of missing persons is merely a temporary organization, and thus, the head of the rescue headquarters should have been under the command of a civilian diving investigation. In fact, even if the diving investigation under the jurisdiction of the Navy, the military, and the private sector was not involved in the management at the time, or the Defendant had contact with the maritime police on behalf of the private diving investigation, it cannot be deemed that the Defendant was in the position to direct and supervise the private

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The judge of the presiding judge;

Judges 000

Judges Lee Jin-jin

1) However, high F divers were locked for a diversing installation, not a search within the hull, and less difficult work compared to the search within the hull.

In addition, it seems that the maritime police did not go through the locked investigation and assistance, but did not seem to be able to do so.

2) In the case of high F diving investigation, the order to engage in aquatic rescue and relief operations was not issued on the day the instant accident occurred on which the site was placed.