[1] The scope of a trial by the court of final appeal and the scope of grounds for appeal by the defendant

[2] Requirements and method of determining "unclaimed intentional act"

[1] Articles 383 and 384 of the Criminal Procedure Act / [2] Article 13 of the Criminal Act

[1] Supreme Court Decision 2010Do7947 Decided January 27, 2011, Supreme Court Decision 2012Do1200 Decided December 27, 2012 / [2] Supreme Court Decision 2016Do15470 Decided January 12, 2017 (Gong2017Sang, 427)

Defendant 1 and eight others

Defendants and Prosecutor (Defendant 1, Defendant 2, Defendant 3, Defendant 5, Defendant 6, Defendant 7, Defendant 8, and Defendant 9)

Law Firm Squa et al.

Seoul High Court Decision 2017No243 decided August 17, 2017

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the grounds of appeal by the remaining Defendants except for Defendant 4 Co., Ltd. (hereinafter “Defendant 4”) on the part of occupational injury resulting in death

A. As to the allegation in the grounds of appeal on predictability

The lower court, based on the circumstances indicated in its reasoning, found that, in the event that the Defendant manufactures and sells the humidifier disinfectants (name 1 omitted) or (name 1 omitted) of Defendant 4 company due to the composition and content of the humidifiers for which the safety of the human body was not secured without proper instructions or warnings (hereinafter “instant humidifier disinfectants”), it could have sufficiently predicted that the Defendant could have been able to suffer bodily injury and death due to a toxic reaction in the body of the humidifier disinfectants (hereinafter “instant humidifiers”), and that the Defendant’s assertion on the grounds that there was no likelihood of expectation in light of the following: (a) under relevant Acts and subordinate statutes, such as the former Toxic Chemicals Control Act, etc., which were in force at the time of the manufacture and sale of each of the instant humidifier disinfectants, was not designated as a toxic substance; or (b) the hazards of the products were not known for a considerable period of time.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on predictability, contrary to what is alleged in the grounds of appeal, thereby failing to exhaust all necessary deliberations or exceeding the bounds of the principle of free evaluation of evidence

B. As to the ground of appeal concerning breach of duty of care

1) The part on Defendants 1, 2, and 3 (hereinafter “Defendant 4 Defendants”)

A) In full view of the circumstances set out in its reasoning, the lower court determined that Defendant 4 manufactured and sold the said humidifier disinfectant products by Defendant 4’s Defendants, which did not ensure the safety of the human body, and Defendant 1 and Defendant 2 manufactured and sold the said humidifier disinfectant without proper instructions or warnings.

Of the grounds of appeal, the argument that the lower court’s fact-finding, which forms the basis of the lower judgment, is nothing more than an error of the lower court’s determination on the evidence selection and probative value, which belongs to the free judgment of the fact-finding court. Moreover, even if examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding breach of duty of care or by exceeding the bounds of the free evaluation of evidence inconsistent with logical and empirical rules

The Supreme Court precedents cited in the grounds of appeal are inappropriate to invoke the instant case, since they differ from the instant case.

B) In full view of the circumstances as indicated in its reasoning, the lower court determined that the causal link between the pulmonary toxicity reaction and the occurrence of the pulmonary disease caused by the humidifier disinfectant (hereinafter “PHMG”) of polyethylisidine was a unique disease caused by toxic reaction caused by the inhalement of humidifier disinfectant made by the disinfectant ingredients, and thus, the lower court determined that the causal link between the pulmonary toxicity reaction and the occurrence of the pulmonary disease caused by the pulmonary agents was without reasonable doubt if the PHMG is used by the humidifier disinfectant ingredients.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence or by misapprehending the legal doctrine on the determination of proximate causal relation

C) On the grounds indicated in its reasoning, the lower court determined that Defendant 1 was liable for the occurrence of the result of thought to the victims, on the grounds indicated in its reasoning, of Defendant 4, who continued to manufacture and sell the contaminated household system of Defendant 4, even after his retirement pursuant to the initial decision.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the status of surety, contrary to what is alleged in the grounds of

2) The part on Defendant 5, Defendant 6, and Defendant 7 (hereinafter “○○○○○”)

A) The lower court, on the grounds indicated in its reasoning, held that ① in the case of a self-trademark (Priv Rate Band, hereinafter “PB”), which is an officer or employee of the ○○○○○○○○○○○○○○○○○, the Defendant, a mere distributor, bears a duty of care corresponding to the manufacturer who manufactures and sells products of the manufacturing company’s trademark (hereinafter “NB”), and ② people’s life and body as protected legal interest in the crime of occupational injury and death are also included in the purpose of protecting the Product Liability Act; ② the victims’ ideology was derived from the nature and expression defect of (product name 1 omitted) the Defendants engaged in the development, and thus, the Defendants were admitted to the ○○○○○○○○○○○○○○○○○○○’s duty of care with respect to the development, manufacture, and sale of products, and ③ the Defendants were not in accord with the duty of care of the △△△△△△△△△△△△△△’s duty of care.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on occupational duty of care, contrary to what is alleged in the grounds of appeal, thereby failing to exhaust all necessary deliberations or exceeding the bounds of the principle

B) In full view of the following circumstances, the lower court determined that the Defendants, ○○○○○○○○○, who concluded a contract with ○○○○○○○○○○ to manufacture and sell (product name 1 omitted), could have verified whether there was any defect and neglected to verify safety. ① The safety verification of the PB products, which ○○○○ himself/herself manufactured and sold, falls under the scope of ○○○○○○○○’s responsibility as part of the quality control of the PB products. ② (product name 1 omitted) The capability to verify and secure the safety at the time of manufacture and sale of the chemical products, such as ○○○○○○○, was not ○○○○, and Nonindicted Company 3 (hereinafter “Nonindicted Company 3”) who entered into the “PB consulting service contract with ○○○○○○○○○○,” and the same method was also the same as that of the Defendant’s final product manufacturer’s (product name 1 omitted) to verify the safety and safety of the products, and (3) the safety verification and sale of the product.

Of the grounds of appeal, the argument that the lower court’s fact-finding, which forms the basis of the lower judgment, is nothing more than an error of the lower court’s determination of the evidence selection and probative value, which belongs to the free judgment of the fact-finding court. In addition, even if examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on specific breach of duty of care, which

C) Since a final appeal is a follow-up trial on the judgment of the appellate court, matters not subject to a review in the appellate court are not within the scope of the judgment of the court of final appeal, and the defendant cannot be considered as the grounds for final appeal for reasons other than those not alleged in the appellate court as grounds for appeal or subject to a review by the appellate court ex officio (see Supreme Court Decision 2012Do1200, Dec. 27, 2012, etc.

Defendant 7’s argument in the grounds of appeal on objective attribution is apparent that it was only asserted in the final appeal that it was not subject to a trial at the appellate court, and thus, cannot be a legitimate ground of appeal.

3) Defendant 8

The court below found that the above defendant 8, who was in charge of the quality assurance team of the non-indicted 3 related non-indicted 1 omitted, violated the above duty of care as stated in the judgment of the court of first instance, based on the following facts: (i) although he first examined the safety of the contract between ○○○ and the non-indicted 3 and the internal work division of the non-indicted 3, he confirmed only the product production capacity and the product manufacturing company status of ○○ Contract, etc.; and (ii) he did not appeal to the purport that the above defendant did not bear accurate obligation of instruction and warning to the effect that (name 1 omitted) the manufacturing and sale of the non-indicted 3 was appropriate in the process of securing the safety of the non-indicted 1 omitted; (iii) the manufacturing and sale obligation of the safe product without any defect as a person in charge of quality assurance team at the time of 206, and that he did not appeal to the effect that he did not bear accurate obligation of instruction and warning to the use method and its risk at the time of using it.

Of the grounds of appeal, the argument that the lower court’s fact-finding, which forms the basis of the lower judgment, is nothing more than an error of the lower court’s determination on the evidence selection and probative value, which is the free judgment of the fact-finding court. Moreover, even if examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the duty of care, instruction, and warning of

4) Defendant 9

In full view of the circumstances as indicated in its holding, the lower court determined that Defendant 9 was unable to secure the safety of chemical products due to lack of capacity, and that it was recognized that the manufacture and supply of each of the humidifier disinfectant of this case was caused by copying (product name 2 omitted) and thereby resulting in the result of the victims’ thought, and that the circumstance required by the said Defendant cannot be said to be that there is no possibility that the said Defendant would not violate the duty of care required in the process of manufacturing humidifier disinfectants.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the possibility of evading criminal negligence or by misapprehending the bounds of the principle of free evaluation of evidence.

5) The remainder of the Defendants and Defendant 9 on the ○○○ side.

In full view of the circumstances indicated in its reasoning, the lower court determined that Defendant 9’s sexual change in the direction of increasing the toxicity of PHMG, a raw material after developing and selling each of the humidifier disinfectant of this case cannot be deemed to have led to the death or injury of the victims.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on evidence judgment, the burden of proof in a criminal trial, the recognition of causation, or the division thereof, thereby failing to exhaust all necessary deliberations or exceeding the bounds of the principle of free evaluation of evidence in violation

C. As to the allegation in the grounds of appeal regarding the joint principal offender of the remaining Defendants except Defendant 4

1) As to Defendant 8’s ground of appeal on this part

The above defendant's allegation in the grounds of appeal is not legitimate grounds of appeal, since it is only asserted in the appellate court that the defendant was not subject to a trial at the appellate court.

2) As to the remaining Defendants’ ground of appeal on this part

For the reasons indicated in its holding, the lower court determined that, on the grounds indicated in its reasoning, Defendant 4 Defendants on the part of Defendant 4, Defendant 8, Defendant 9 (hereinafter “instant Defendants”), and Nonindicted 9 (hereinafter “Nonindicted 4, Nonindicted 5, Nonindicted 6, Nonindicted 7, and Nonindicted Company 8, the representative director of Nonindicted Company 8, who was or was an executive or employee of Nonindicted Company 2, manufactures and sells each humidifier disinfectant defective in the occupational field under the joint care and recognition, and as long as the result of death or injury was caused to the victims who used two or more kinds of humidifier disinfectants, the lower court constituted joint principal offense of death or injury by occupational negligence against the relevant victim among the Defendants of this case and Nonindicted 4, etc., as well as those who were occupationally engaged in the manufacture and sale of humidifier disinfectant used by a specific victim.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the establishment of joint principal offender or by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal.

2. Determination on the grounds of appeal by Defendant 1, Defendant 2, and Defendant 4 on the part of violation of the Act on Fair Labeling and Advertising (hereinafter “Indication and Advertising Act”).

Unlike gross negligence, willful negligence, unlike intentional negligence, there is a perception of the possibility of occurrence of a crime, and furthermore, an internal intent to accept the risk of occurrence of a crime. Whether an offender has accepted the possibility of occurrence of a crime ought to be confirmed from the standpoint of the offender, considering how the general public can assess the possibility of occurrence of the relevant crime if it is based on specific circumstances, such as the form of an act externally revealed and the situation of an act, without depending on the statement of the offender (see, e.g., Supreme Court Decision 2016Do15470, Jan. 12, 2017).

Based on the circumstances indicated in its reasoning, the lower court determined that the date of examining and determining the contents of the phrases written on Defendant 4 company's dampness labeling cannot be deemed to be exclusively a business of TM (TM) and was included in Defendant 1 and Defendant 2's business, and recognized the above Defendants' criminal intent as to the act of false labeling.

Of the grounds of appeal, the allegation that the lower court’s fact-finding, which is the basis of the lower judgment, is nothing more than an error of the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. In addition, examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules

3. Judgment on the grounds of appeal by the prosecutor

A. As to the allegation in the grounds of appeal as to the part of the remaining Defendants’ occupational injury or death (excluding the part of the grounds of appeal) other than Defendant 4

The court below held that the life and body of the above defendants, which are protected as a legal interest for the crime of occupational injury and death, are exclusive legal interests and the number of such crimes must be determined according to the number of victims, and this part of the facts charged against the above defendants can be evaluated to have been engaged in a single occupational act in violation of each of the above defendants' duty of care, and thus rejected the prosecutor's grounds for appeal as to the starting point of the statute of limitations for the public prosecutor on different premises.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted by the lower court, the lower court did not err in its judgment by misapprehending the legal doctrine on the number of crimes resulting in occupational injury or death and the starting point of the statute of limitations, as otherwise

B. As to the ground of appeal on Defendant 1 and Defendant 2’s habitual fraud

The lower court determined that Defendant 1 and Defendant 2, at the time of the final determination of Defendant 4’s indication phrase, were insufficient to readily conclude that the said Defendants had a criminal intent to commit fraud, to the extent that it was unreasonable to exclude the room for reasonable deliberation, considering the evidence submitted by the prosecutor, even when comprehensively considering the evidence submitted by the prosecutor.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted by the lower court, the lower court did not err by misapprehending the legal doctrine on the criminal intent of fraud, contrary to what is alleged in the grounds of appeal

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)