[1] The case recognizing the violation of the former Prevention of Marine Pollution Act concerning oil leakage on the ground that the "Tanando oil leakage accident" caused by the collision between the fleet and the large oil tanker, the tugboat crew's breach of the duty of care to prevent the collision and the duty of care to prevent the collision and pollution of large oil tanker crew members

[2] The meaning of "maletion" as referred to in Article 187 of the Criminal Code

[3] The case holding that only a hole in part of the oil tank of a large oil tanker and the extent of damage to the player list, satellite communications antenna, navigation lights, etc. does not constitute a "destructive of a ship" under Article 187 of the Criminal Act

[4] Where a punishment of different types of punishment is imposed on a substantive concurrent crime, the scope of reversal if there is a ground for reversal only for part of the punishment

[1] The case recognizing the violation of the former Prevention of Marine Pollution Act concerning oil leakage on the ground of the fleet crew's breach of the duty of care to prevent collision and the large oil tanker crew's breach of the duty of care to prevent collision and pollution in the Taeanando oil leakage accident caused by the collision between the fleet and the large oil tanker

[2] As one of the crimes of traffic obstruction under Article 187 of the Criminal Act, the statutory punishment is higher, while the crime is subject to attempted, preliminary, and conspiracy, in addition to the circumstances where the act of destruction, burial, and fall, other than the “destructive”, is naturally expected to involve damage to a considerable extent, in light of the circumstances in which the act of destruction, burial, and fall, as well as the act of destruction, which is an act of destruction, is ordinarily expected to involve damage to the general public, the “destructive” under Article 187 of the Criminal Act refers to the destruction to the extent that the function and use of the means of transport is impossible in whole or in part, as it can be recognized at the same level as the whole clothes, burial, fall, etc., which

[3] The case holding that only a hole in part of the oil tank in a large oil tanker with a total length of 338 meters, deck height of 28.9m, total tonnage of 146,848 tons, oil tank 13 tanks, and a large oil tanker with a flat water tank damage, such as the foremast, satellite communications antenna, navigation lights, etc., do not constitute a "destructive" of a ship under Article 187 of the Criminal Act

[4] Where the crime of destroying a ship by occupational negligence, violation of the Prevention of Marine Pollution Act, and violation of the Seafarers' Act (part) are considered as substantive concurrent crimes, and sentenced to one imprisonment for the crime of destroying a ship by occupational negligence and violation of the Prevention of Marine Pollution Act, and the crime of destroying a ship by occupational negligence and violation of the Prevention of Marine Pollution Act are subject to a separate fine for the violation of the Seafarers' Act, so long as the judgment below on the crime of destroying a ship by occupational negligence and violation of the Prevention of Marine Pollution Act are erroneous, the part of the violation of the Prevention of Marine Pollution Act also cannot be reversed. However, since the violation of the Seafarers' Act

[1] Articles 5(1) (see current Article 22(1)), 48 (see current Article 64(1)), 71(2)1 (see current Article 127 subparag. 2), and 72 subparag. 6 (see current Article 127 subparag. 4 of the Marine Environment Management Act), and 187 of the Criminal Act / [2] Article 187 of the Criminal Act / [3] Article 37 of the Criminal Act / [4] Articles 37 and 38(1)3 of the Criminal Act, Article 391 of the Criminal Procedure Act

[2] Supreme Court Decision 70Do1611 Decided October 23, 1970 (No. 18-3, 49) Supreme Court Decision 82Do671 Decided September 27, 1983 (Gong1983, 1625) / [4] Supreme Court Decision 99Do1866 Decided September 14, 2001 (Gong2001Ha, 2290)

Defendant 1 and five others

Defendants

Law Firm Shinn-ro et al.

Daejeon District Court Decision 2008No1644 Decided December 10, 2008

The part of the judgment of the court below against the defendant 2, the crime of destroying a ship by occupational negligence against the defendant 1, the violation of the Prevention of Marine Pollution Act, the violation of the Prevention of Marine Pollution Act, and the part of the crime of destroying a ship by occupational negligence against the defendant 3 and 4 are all reversed, and this part of the case is remanded to Daejeon District Court Panel Division. The remaining appeals by the defendant 1, 3, and 4 and all appeals by the defendant Samsung Heavy Industries Co., Ltd.,

The grounds of appeal are examined.

1. As to the grounds of appeal on violation of the Prevention of Marine Pollution Act and violation of the Seafarers Act

A. The part of the grounds of appeal by Defendant 1, 2, and Samsung Heavy Industries Corporation

(1) If the occurrence of a result is foreseeable, and even though it could be avoided, it is not exempt from liability for a crime of negligence, and such duty of care is not necessarily required to stipulate the basis or content in an individual statute, and it is possible to recognize the duty of care to prevent the occurrence of a result by comprehensively assessing all relevant circumstances in a specific situation where the occurrence of a result is revealed, based on the predictability and possibility of avoidance of the occurrence.

In light of the above legal principles, the court below is just in holding that Defendant 2 also bears various duties of care as stated in its reasoning on the safe navigation of the fleet of this case, on the grounds of the circumstances that the fleet of this case provides that the fleet of this case shall observe the order of Defendant 2, who is the captain of the fleet in the event of an emergency, in particular during navigation, and the status and experience in navigation within the company organization of Defendant 2, the degree of involvement in the actual navigation, and its influence, and there is no error in the misapprehension of legal principles as to the requirements for establishment of negligence.

(2) Article 46(2) of the former Sea Traffic Safety Act (amended by Act No. 8260 of Jan. 19, 2007, which was in force on Jan. 20, 2008) provides for the lights or shapes to be exhibited by a vessel restricted in her ability to maneuver from the course, and Article 46(3) provides that “if a power-driven vessel is engaged in towing operations, she shall exhibit the lights or shapes specified in subparagraphs 1 and 2 of Article 43 (2) in addition to the lights or shapes specified in Article 43(1).” Accordingly, if a tugboat is engaged in towing operations, she shall exhibit the above lights or shapes on the tugboat itself, and display the above lights or shapes on another vessel or object subject to towing cannot be deemed legitimate under the above provision.

In the same purport, the court below is just in holding that the main tugboat of this case and the subordinate tugboat of this case did not display the limitation of operation and the limitation of operation to the barge subject to towing is not a legitimate display method under the former Maritime Traffic Safety Act, but also the cause of the collision of this case. There is no error in the misapprehension of legal principles as to the method of operating limitation and causation as otherwise alleged in the ground of appeal.

(3) Article 17 of the Criminal Act provides that “Any act is not connected to the occurrence of danger which is an element of a crime, it shall not be punishable for the result.” If the risk resulting from one’s own act is realized as a result of a crime, even though a third party’s act was partially contributed to the occurrence of the crime, it cannot be exempted from liability for the result (see Supreme Court Decision 84Do831, 84Do129, Jun. 26, 1984, etc.).

According to the evidence duly admitted by the court below, it is recognized that the collision between the fleet of this case and Hebee No. 1, 3, and 5 oil tanks of Hebee No. 1, 3, and the oil was leaked from the hole. The degree of leakage is within the scope that naturally expected to be realized in accordance with the physical law even if there is no additional factor due to the above tank damage, and it does not reach the extent that the additional act of Hebee crew exceeds the ordinary expected range. Thus, in light of the above legal principles, even if it was possible to reduce the degree of oil leakage due to the collision if the fleet crew did not neglect the duty of care to prevent pollution after the oil tank damage, the fleet of this case could not be seen as a result of the occurrence of the risk of oil leakage between the act of this case and the actual act of oil leakage.

The judgment of the court below to the same purport is just, and there is no error of law as to causation, etc. as otherwise alleged in the ground of appeal

(4) Article 22(1) of the Criminal Act provides that “an act to avoid danger to one’s own or another’s legal interest shall not be punishable if there are reasonable grounds.” In order to constitute an act with reasonable grounds, first, an act of escape shall be the only means to protect the legal interest in danger, second, the act of escape shall be the only means to protect the legal interest in danger, second, the act of escape shall be the most minor damage to the victim. Third, the profit preserved by the act of escape shall be superior to the profit infringed by it. Fourth, the act of escape must meet the requirements, such as the act of escape must be an appropriate means in light of social ethics or the overall spirit of legal order (see Supreme Court Decision 2005Do9396, Apr. 13, 206, etc.). In addition, if his father participated in the criminal act due to the instruction of the workplace company, even if the command and the command relation in the line of duty is recognized, it cannot be viewed as denying the expectation of not participating in the act of crime (see Supreme Court Decision 19Do39, Jul. 19, 19, 19, etc.

For the reasons indicated in its holding, the court below is just in light of the above legal principles to reject all the allegation that there is no possibility of expectation for legitimate navigation since the unreasonable navigation of the fleet in this case constitutes an emergency evacuation or the navigational navigational instructions of the commercial company were followed. There is no error in the misapprehension of legal principles as to emergency evacuation and possibility of expectation as otherwise alleged in the ground of appeal

(5) Article 77 of the former Prevention of Marine Pollution Act (amended by Act No. 8260 of Jan. 19, 2007 and repealed as of Jan. 20, 2008) provides that "if a representative of a corporation, or an agent, employee, or other worker of a corporation or individual commits an offence under Articles 71 through 76 in connection with the business of the corporation or individual, not only shall the offender be punished, but also the corporation or individual shall be punished by a fine under each relevant Article." The purport of the two punishment provisions is to ensure effectiveness of the penal provisions through the punishment of business negligence, such as the corporation. The employees of a corporation referred to in this context include not only the persons who have entered into a regular employment contract with the corporation, but also those who are under the control and supervision of the corporation in the course of directly or indirectly performing the business of the corporation (see, e.g., Supreme Court Decisions 2002Do298, Mar. 12, 2004; 203Do46636.

According to the evidence duly adopted by the court below, although the defendant 1 and 2 are employees of the non-indicted corporation, the above company was a co-contractor of the defendant Samsung Heavy Industries corporation, which does not conduct any other business except management and operation of the fleet of this case for the defendant Samsung Heavy Industries corporation in accordance with the service management entrustment agreement of the fleet of this case. The above defendants were under the control and supervision of employees of the defendant Samsung Heavy Industries corporation, and the defendant Samsung Heavy Industries operated the fleet of this case directly or indirectly. Thus, the court below's application of the above double punishment provision to the defendant Samsung Heavy Industries corporation is just in light of the above legal principles, and there is no error in the misapprehension of legal principles as to the scope of the double punishment provision as otherwise alleged in the ground of appeal.

(6) On the grounds indicated in its reasoning, Defendant 1, the captain of the instant tugboat, is merely closely aware of weather conditions and has lost towing capacity due to deterioration of weather, and takes appropriate emergency measures, such as navigation, emergency mooring, adjustment restriction, etc., through consultation with the captain of the instant tugboat, and at the same time, if a vessel in close distance is discovered, the lower court determined that the Defendants failed to take measures to avoid collision prior to the occurrence of the risk of collision by promptly communicating with air control stations and other vessels installed on the ship and by taking prompt measures, but the Defendants, the captain of the instant tugboat, as well as the captain of the instant tugboat, did not immediately change the situation and immediately avoid collision. Defendant 2, the captain of the instant tugboat, by ascertaining the weather condition and deterioration, did not constitute an unlawful reasoning of the lower court that did not err by misapprehending the law of maritime affairs and fisheries beyond the reasonable bounds of the rules of evidence or by failing to give rise to the logical and logical justification of the lower court’s determination that the Defendants violated the law of maritime affairs and fisheries beyond the bounds of the law.

In addition, Defendant 1’s assertion of unfair sentencing does not constitute legitimate grounds of appeal in this case where imprisonment for two years and six months and fine is imposed.

(7) Ultimately, Defendant 1, 2, and Samsung Heavy Industries Corporation’s grounds of appeal on the violation of the Prevention of Marine Pollution Act and the Seafarers’ Act are rejected.

B. The part of the grounds of appeal by Defendant 3, 4, and Switzerland Ship Corporation

(1) Article 298(1) of the Criminal Procedure Act provides that "the public prosecutor may add, delete, or change charges or applicable provisions of Acts stated in the indictment with the permission of the court. In this case, the court shall permit it to the extent that it does not harm the identity of the charges." The identity of the charges shall be based on the defendant's act and social factual relations in consideration of the legal functions of identity of the facts, and its normative elements shall also be included in consideration (see Supreme Court Decision 95Do1270 delivered on June 28, 1996, etc.).

According to the records of this case, in order to hold the defendant 3 and 4 accountable for criminal liability for the leakage of large amounts of oil caused by the collision between the fleet of this case and Hebee, the prosecutor charged the defendant 3 and 4 with the crime of destroying a ship by occupational negligence and the violation of the Prevention of Marine Pollution Act (applicable only to the violation of the Prevention of Marine Pollution Act for Heice ship corporation). At first, the court below specified only the violation of the duty of care for the prevention of collision as the charges, but changed the relationship between the above two crimes into substantive concurrent crimes. The court below added the specific contents of the violation of the duty of care for the prevention of collision and added the violation of the duty of care for the prevention of pollution to the charges to prevent oil leakage after the collision. In the investigation of this case and the first trial process of this case, there has been controversy over whether the violation of the duty of care for the prevention of pollution was committed, and thus, it does not constitute a case that partly supplement the contents of the violation of the duty of care for simple crime.

The court below is just and there is no error in the misapprehension of legal principles as to the permissible limit of modification of indictment as otherwise alleged in the ground of appeal.

(2) According to the Sea Traffic Safety Act, etc., a vessel shall exercise a duty of care to take appropriate measures to avoid the risk of collision, using all means that can be used in accordance with the visual, hearing, and current situation so that it can sufficiently grasp the surrounding situation and the risk of a collision with another vessel. In principle, a vessel at anchor does not have a duty of care to take measures to avoid the risk of collision with a vessel first, but if a vessel at anchor is placed in a situation where it is not possible to avoid the collision with a vessel at anchor, the vessel at anchor is also obliged to take appropriate measures to avoid the risk of collision (see, e.g., Supreme Court Decision 83Do2746, Jan. 17, 1984). In addition, the so-called principle of trust related to criminal negligence is not likely to apply where the other party already shows abnormal behavior, and the same applies where the offender did not have been aware of the other party's abnormal behavior in advance at the wind of the collision.

Furthermore, in order to have fulfilled the normal duty of care required in a specific situation where the occurrence of a result results results, it is insufficient to say that simply formally fulfilled the matters set forth in the laws or internal guidelines, etc., and it is necessary to evaluate that reasonable and appropriate measures generally required to avoid the occurrence of a result in a specific situation have been taken.

For the reasons indicated in its holding, the lower court’s finding that there is no 302,640kl (Ambre 263,94t) on the sea where the passage of vessels is frequent, and thus, did not fall under the category of oil leakage. As long as Defendant 4, who was at the time of the accident, at the time of the accident, was at the time of the accident, informed of the risk of collision between the 1st mate and the navigational officer, and informed of the vessel nearby the navigational equipment at a sufficient distance from the port, or caused the other vessel to pass safe through the navigational system, or if it is doubtful that the other vessel loses navigational capacity or is seriously restricted, it is not likely that the Defendants were negligent in leaving the vessel immediately after the arrival of anchor and moving the anchor from the place of anchorage, and, in so doing, Defendant 3, as the captain, was negligent by failing to exhaust the vessel’s capacity to cooperate with the navigational officer immediately after the arrival of the vessel, and by failing to take adequate measures to avoid collision with the vessel’s navigational force.

(3) According to the reasoning of the judgment below, the court below acknowledged the failure of the defendant 3 and 4 to prevent pollution, but it only states that it is difficult to accurately calculate the quantity of oil leaked, and that there is no determination that the failure to prevent pollution itself is not recognized. The argument that there is inconsistency with the reasoning of the judgment of the court below on the premise that the court below did not recognize the failure to prevent pollution itself, is derived from the erroneous understanding of the purport of the judgment of the court below, and thus, cannot be accepted. The remaining argument pointing out inconsistency with the reasoning of the judgment of the court below is merely an erroneous understanding of the judgment of the court below or a criticism of the court below on the premise different from the fact-finding and determination of the court below

(4) According to the records of this case’s trial, most of the evidence produced in the process of examining the evidence of the court below was found to have arisen from the process of actively emphasizing the conflict and marine pollution in favor of the other party and the other party’s disadvantageous material, by asserting that the fleet of this case and Hebehoho Lake are the principal responsibility of the collision and marine pollution in the way of exercising the right of defense. Thus, it cannot be readily concluded that there was an error of law that affected the judgment of the court below in the trial procedure without prejudice to the judgment of the court below. Furthermore, even if only the remainder of the evidence duly adopted by the court below is based on the evidence that is sufficient to support the conclusion of the court below that recognized the conflict and the violation of the duty of care to prevent pollution by the defendant 3 and 4, this does not constitute a ground affecting the judgment of the court below.

All of the remaining arguments disputing the illegality of the trial procedure of the court below are rejected as it is merely the purport of pointing out the propriety of the matters belonging to the court below's discretion.

(5) The assertion that there was a misunderstanding of facts on the basis of sentencing or failed to properly examine the circumstances under which the sentencing conditions are attached, etc. is ultimately asserting unfair sentencing, and thus, cannot be a legitimate ground of appeal in this case.

(6) Ultimately, Defendant 3, 4, and Hague Shipping Co., Ltd.’s grounds of appeal on the violation of the Prevention of Marine Pollution Act are not accepted.

2. As to the ground of appeal on the crime of destroying a ship by occupational negligence

Article 187 of the Criminal Act, which is part of the crime of traffic obstruction in Chapter 15 of the Criminal Act, provides that “any person who capsd, buried, crashs, or destroys a person’s existing train, electric car, automobile, vessel, or aircraft shall be punished by imprisonment for life or for not less than three years.” Article 190 of the Criminal Act provides that a person who attempted to commit a crime and Article 191 of the Criminal Act provides that a person who prepared or conspired to commit a traffic obstruction shall be punished. In addition to the crimes of traffic obstruction in Article 187 of the Criminal Act, one of the crimes of traffic obstruction in Article 187 of the Criminal Act sets a higher statutory punishment, and the cases subject to punishment, including attempted attempts, burial, and fall, as a matter of course, are naturally expected to entail considerable damage. In light of the fact that the act of destruction, burial, and crash, which are other elements of the crime, “Destruction” under Article 187 of the Criminal Act, means that the whole or part of functions and usage as transportation equipment can be recognized at the same level as those other elements of the crime.

According to the evidence duly adopted by the court below, it is acknowledged that Heba subparagraph is a large oil tanker with a total length of 338 meters, deck height of 28.9m, total tonnage of 146,848t, oil tank 13, and flat water tank 4 large oil tanks. Damage caused by the collision of this case is limited to the degree of damage caused by each of the oil tanks on the oil tank Nos. 1, 3, and 5 on the port side (No. 1 tank 0.3m x 0.03m x 0.03m, No. 3 tank 1.2m x 0.1m x 0.0.1m, No. 5 tank 1.6m x 2m m) and damage the horse list, satellite communications antenna, navigation lights, etc.

In light of the aforementioned facts in light of the legal principles as seen earlier, damage to Hebeh due to the collision of this case is difficult to be deemed as the degree of “damage” of the ship stipulated in Article 187 of the Criminal Act, and this does not change merely because the oil was leaked from the hole generated in the oil tank and it was impossible to function as an oil tanker for transporting oil from the time of repair.

Unlike this, the lower court, which determined that the damage to Hebeh due to the collision of this case constitutes the "male of a ship" as provided in Article 187 of the Criminal Act, has erred by misapprehending the legal doctrine regarding the interpretation and application of the above provision. The grounds of appeal by Defendant 1, 3, and 4 pointing this out are justified, and the above illegal grounds of the lower judgment also share to Defendant 2, who is the co-defendant who appealed, and thus, this part of the lower judgment against Defendant 2 cannot be reversed.

Therefore, without examining the remaining grounds of appeal on the part of the court below's other decisions as to the number of crimes and calculation method of punishment with respect to the defendant 1, 2, 3, and 4 as to the crime of destroying a ship by occupational negligence or as to the remaining crimes premised on the establishment of the above crime, the part of the judgment of the court below which recognized the crime of destroying a ship by occupational negligence as to the above defendants cannot be maintained.

3. Scope of reversal

The court below found Defendant 1 guilty of the violation of the Prevention of Marine Pollution Act, the violation of the Prevention of Marine Pollution Act, and the violation of the Seafarers' Act (part). The court below sentenced the crime of destroying a ship by occupational negligence and the violation of the Prevention of Marine Pollution Act by considering them as substantive concurrent crimes, and sentenced one imprisonment with prison labor for the violation of the Seafarers' Act. In this case, since the crime of destroying a ship by occupational negligence and the violation of the Prevention of Marine Pollution Act, which are sentenced to one imprisonment, should be treated as all in the lawsuit, the part of the violation of the Prevention of Marine Pollution Act cannot be reversed, unless there is an error in the judgment below as to the crime of destroying a ship by occupational negligence and the violation of the Prevention of Marine Pollution Act, the part of the violation of the Seafarers' Act should be treated separately in the lawsuit, and this part does not fall within the scope of reversal (the court below reversed the part of the judgment of the court of first instance as to Defendant 1, but did not reverse the part of the lawsuit cost. However, since the part of the lawsuit cost charge should be reversed together with Defendant 1.

Since the lower court sentenced Defendant 2 to a single punishment against the crime of destroying a ship by occupational negligence and the violation of the Prevention of Marine Pollution Act, the lower court’s judgment against Defendant 2 cannot be exempted from all destruction.

On the other hand, the court below determined that the crime of destroying a ship by occupational negligence and the violation of the Prevention of Marine Pollution Act are substantive concurrent crimes, and decided that the defendant 3 and 4 were punished by imprisonment without prison labor for the crime of destroying a ship by occupational negligence, and the fine for the violation of the Prevention of Marine Pollution Act were imposed concurrently. In this case, two crimes must be separately treated in litigation, so the scope of reversal is limited to the crime of destroying a ship by occupational

4. Conclusion

Therefore, the part of the judgment of the court below against the defendant 2, the crime of destroying a ship by occupational negligence against the defendant 1, the violation of the Prevention of Marine Pollution Act and the cost of lawsuit against the defendant 3 and 4, and the part of the crime of destroying a ship by occupational negligence against the defendant 3 and 4 shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The remaining appeals by the defendant 1, 3, and 4, and all appeals by the defendant Samsung Heavy Industries Co., Ltd., and Hubeice Shipping Co., Ltd.

Justices Lee Hong-hoon (Presiding Justice)