(영문) 부산지방법원 2013.5.10.선고 2012노3999 판결

The above Defendants shall be punished by imprisonment with prison labor for three years. The appeals by Defendants A, D, and E shall be dismissed. Of the facts charged in the instant case, the fact that the fire-fighting facilities are closed and blocked around October 2009 against Defendants B and C is irrelevant.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) Defendant B and C (as to the violation of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act)

The above Defendants and Co-Defendant G in the lower court’s closure of the emergency exit, which was installed adjacent to 25th around October 2009, merely closed the emergency exit, which was additionally installed even though they did not have an obligation to install in accordance with the recommendation of the Busan Fire Prevention Station (hereinafter “Fire-Fighting System Act”). Thus, they do not constitute “a person who closed or block fire-fighting systems, etc.” under Articles 48 and 9(3) of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act, and thus do not constitute a violation of the Fire-Fighting System Act. 2) Defendant A, B, and C (Crime of Death by Occupational Negligence and Injury by Occupational

With respect to the closure of emergency exit installed adjacent to the 25th of October 2009, it cannot be deemed that the above Defendants violated their duty of care in relation to the instant fire accident. As to the management of the fire alarm devices and the fire alarm devices, the above Defendants did not prevent the Defendants from operating by sticking to the recovery stop server of the receiver at the time of the instant fire accident, and the Defendants were under regular and occasional inspections on the normal fire alarm devices and the manual fire alarm devices, etc., and therefore, the above Defendants were under the duty of care. Thus, there was no violation of their duty of care in relation to this part.

3) Defendant D and E (the crime of occupational death and bodily injury by occupational negligence)

In light of the circumstances at the time of the occurrence of the instant fire accident and the measures taken by the said Defendants at the fire site, it is difficult to recognize that the said Defendants violated their duty of care, and it is difficult to deem that there is a possibility to expect the said Defendants to take more measures, such as actively evacuation or rescue the customers, etc.

B. Unreasonable sentencing

Each sentence sentenced by the court below to the defendants (the 4 years of imprisonment for each of the defendants A, B, and C, the 4 years of suspended execution for the 2-year imprisonment without prison labor, the 4 years of suspended execution for the defendant E, and the 4 years of suspended execution for the 2-year imprisonment without prison labor) are too unreasonable.

2. Judgment on the assertion of mistake of facts or misapprehension of legal principles (as to the defendants)

A. Determination on the assertion that the crime of violating the Fire-Fighting Systems Act is not established (Defendant B and C)

1) Summary of this part of the facts charged

An interested person of a specific fire-fighting object (owner, manager, occupant, etc.) shall install or maintain fire-fighting systems, etc. to be equipped in consideration of the size, purpose of use, number of accommodation, etc. in accordance with the fire safety standards, and shall not conduct any such act as closing, locking, or blocking fire-fighting systems, etc. when maintaining and managing fire-fighting systems, etc..: Defendant B and C all related persons, who are the managers and occupants of the 3rd floor Hmata of 00 building located in Busanjin-gu, Busan (hereinafter referred to as the “instant entertainment tavern”) located in the specific fire-fighting object, were installed at the time of obtaining permission to change the purpose of use of the instant entertainment tavern business from around June 22, 2009; however, at around October 25, 2009, they were installed adjacent to the entrance of the instant entertainment tavern, and they were installed adjacent to the emergency exit installed adjacent to the entrance of the instant fire-fighting facility, and they could not be opened to the outside door of the lower court.

2) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the evidence duly admitted and examined by the lower court.

3) The judgment of this Court

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, ① Article 48, Article 9(3) and (1) of the Fire-Fighting Facilities Act, it is reasonable to interpret that the act of closing or blocking fire-fighting facilities installed or maintained in accordance with the fire safety standards determined and publicly notified by the Administrator of the National Emergency Management Agency is subject to punishment. ② According to the fact-finding on the Busan Fire-Fighting Station, one indoor stairs and one outdoor escape room are already installed in addition to the main entrance and exit in accordance with the relevant Acts and subordinate statutes, such as the Building Act and the Special Act on the Safety Control of Publicly Used Establishments, and there is no need to additionally install an emergency exit other than the above two offices in accordance with the installation of the fire-fighting facilities in Busan Fire-Fighting Facilities Act. 3rd Busan Fire-Fighting Station is adjacent to the main entrance and exit of the fire-fighting facilities, and it is difficult to establish the emergency exit and exit in Busan Fire-Fighting Facilities to the extent that it is obviously possible to readily oppose the installation of the emergency exit and exit in Busan Fire-Fighting Facilities.

4) Sub-committee

Therefore, among the facts charged in this case, the part concerning the closure and blocking of a fire-fighting system around October 2009 against Defendant B and C constitutes a case where there is no proof of criminal facts, and thus, the court below found Defendant guilty of this part of the facts charged in this case under the latter part of Article 325 of the Criminal Procedure Act, but the court below found Defendant B and C guilty of the violation of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act, and there is an error of law that affected the conclusion of the judgment

B. Determination on the assertion of denial of duty of care

1) On October 209, the court below decided that the emergency exit of this case was remodeled (the defendant A, B, and C) around 2009 (the evidence legitimately adopted and examined by the court below) and recommended that the emergency exit of this case was installed on the opposite part of the main entrance and exit of this case for the purpose of facilitating evacuation of human life at the time of fire because two emergency exits adjacent to the main entrance and exit of this case were located near the main entrance and exit. ② The defendant B and C made the emergency exit of this case and installed the main entrance and exit of this case on the top of the main entrance and exit of this case to the extent that the emergency exit of this case was not opened to the main entrance and exit of this case. The defendant B and C installed the main entrance and exit of this case to the main entrance and exit of this case to the extent that the emergency exit of this case was not opened to the main entrance and exit of this case to the main entrance and exit of this case to the extent that the emergency exit of this case was not opened to the main entrance and exit of this case.

Comprehensively taking account of the above circumstances, even if the above defendants' act of closing the emergency exit of this case installed in the entertainment tavern of this case and removing a contact-style bridge does not constitute the act of closing or blocking fire-fighting systems under the Fire-Fighting Systems Act, it can be sufficiently recognized that they violated the duty of care required for business by arbitrarily closing the emergency exit installed in accordance with the recommendation of the competent fire-fighting department. The above assertion by the defendants A, B, and C is without merit.

2) Determination as to neglect of management, such as fire fighters (Defendant A, B, and C), the following circumstances that can be recognized by comprehensively taking into account the evidence duly adopted and examined by the lower court (i.e., each of the instant entertainment bars is separated, and each of the instant entertainment bars is installed with soundproof facilities, so it is difficult to readily recognize the external situation of the fire in the event of a fire, and thus, the fire conditioning devices and fire alarm devices, which are alarm equipment, must normally operate. The survivors and employees of the instant fire accident, are deemed to have consistently stated that there was no fact that the fire alarm level was sounding at the time of the instant fire accident; and (ii) images installed at the right side of the fire fighters and fire alarm devices installed at the right side of the instant entertainment bars.

6) According to the image of the above emergency bell received by the investigative agency, it is possible to confirm that there was an emerculation of the emergency bell in the gap of the emerculation (hereinafter referred to as the emerculation) and that there was an emerculation of the fire, and that there was an emerculation of the fire, and that there was no possibility of an emercation of the emergency bell in the absence of any other emercatoric emercatoric emercatoric emercatoric emercatoric emercatorcatoric emercatoric emercatoric emercatoric emercatoric emercatoric emercatoric emercatoric emercatoric emercatoric emercatoric emercatoric emercatoric emercatoric emeric emercatoric emeric emeric emercator.

Defendant A, B, and C’s above assertion are without merit.

3) Determination on the avoidance of relief measures and the neglect of customers (Defendant D and E) also asserted that the court below did not have a duty of care in light of the circumstances at the time of the occurrence of the instant fire as well as the position of the said Defendants in the entertainment tavern as the grounds for appeal in this part. The court below rejected the above assertion by finding the Defendants guilty of the facts charged against the said Defendants. A thorough examination of the evidence duly adopted and examined by the court below, the judgment that the said Defendants committed a violation of duty of care by avoiding relief measures or neglecting their entrance and exit to customers is just even if this court did so, and there is no error of law that affected the conclusion of the judgment by misunderstanding of facts.

Defendant D and E’s above assertion are without merit.

C. Determination on the assertion on the possibility of expectation (Defendant D, E), and in order to determine whether there is a possibility of expecting a lawful act by the defendant, the possibility of expectation should be determined from the perspective of the average person, instead of the actor, under specific circumstances at the time of the act (see Supreme Court Decision 2005Do10101, Oct. 23, 2008). In full view of the facts acknowledged by the court below as criminal facts, it is difficult to see that in the same circumstances as the above defendants, the average person operates an emergency bell more actively or notifies the customers of the fire, and it is difficult to expect the customers to perform their duties, such as aiding them to properly evacuate.

Defendant D and E’s above assertion are without merit.

3. The judgment on the assertion of unfair sentencing (defendant A, D, and E) appears to have been made on the grounds that the above Defendants made efforts to reduce damage caused by the fire of this case to the victims, such as: (a) Defendant A, after the occurrence of the fire of this case, ordered employees to cut off the fire of this case and report it to 119; (b) Defendant D reported the fire of this case to 119; and (c) Defendant E expressed that they should evacuated with some customers on the 25 occasions; and (d) Defendant E did not immediately notify the victims of the occurrence of the fire by making a timely determination when he discovered the first postponement; (b) Defendant E was negligent in failing to rescue the victims of the occurrence of the fire in a situation where the victims had already been rapidly spreading to the entire entertainment tavern of this case; (c) Defendant A did not have any particular power to be subject to criminal punishment other than fine; and (d) Defendant E was detained for about 1 year as a crime of this case; and (d) Defendant E-and his family members did not want to be subject to criminal punishment for the crime of this case.

However, the instant fire accident brought about a stimulous result by reducing nine severe lives, and three of the death victims were killed in a foreign country, not a high country. However, it is apparent that the instant fire accident, which brought about the result of the above participation, was caused by the concurrence of the said Defendants’ negligence. Thus, the said Defendants cannot be subject to strict criminal liability.

In particular, Defendant A, as the president of the instant entertainment tavern business, was well aware of the structure and facilities of the instant entertainment tavern than anyone among the Defendants, caused enormous damages by failing to perform his duty of care for fire-fighting facilities, etc. of the instant entertainment tavern. Although the instant fire occurred at the second floor of the same building on November 7, 2011, which was six months before the occurrence of the instant fire, Defendant A did not take any measures on the installation of the instant entertainment tavern, fire-fighting systems, and employee training conditions, etc. In addition, if each room is separate as the instant entertainment tavern, and is in a situation where soundproof devices are installed, it would be too difficult to find a fire early on the ground that the fire could not have been found, even if there was a fire, and therefore, it would be too important to maintain the function of the instant entertainment tavern facilities, such as the fire alarm devices, etc., and, in light of the aforementioned circumstances, the Defendant’s act of immediately spreading the performance of the instant fire alarm devices, etc. immediately after the occurrence of the instant fire to the employees.

In addition, Defendant D is an employee who works for the long time in the entertainment drinking house of this case among his employees, and is relatively aware of the structure of the entertainment drinking house of this case. Considering the number of customers who had been in the entertainment drinking house of this case at the time of the fire of this case, even if the above Defendant was expected to have participated in the evacuation of customers at the early stage, he cannot waive his role as an employee from the early stage of the fire and may not be held liable for the above Defendant who had been absent from the entertainment drinking house of this case. Defendant E is the only employee who had entered 25 places with the knowledge of fire occurrence among his employees. The above Defendant E is an employee with the erroneous judgment in the crisis consciousness of the above Defendant, and it cannot be held liable for the above Defendants’ occupational negligence after considering the circumstances of the fire of this case, even if the above Defendants were to have lost their responsibility for the above Defendant’s occupational negligence after the occurrence of the fire of this case.

The defendant A, D, and E's allegation in this part is without merit.

4. Conclusion

Therefore, the part of the judgment of the court below as to Defendant B and C concerning the closure and blocking of a fire-fighting system around October 2009 is reversed as seen above. The court below cannot avoid reversal of the whole judgment of the court below in relation to concurrent crimes by sentencing one punishment together with the remaining crimes in relation to the closure and blocking of a fire-fighting system around October 2009 and around October 209. Thus, without examining the allegation of unfair sentencing by Defendant B and C, the part of the judgment of the court below as to Defendant B and C in accordance with Article 364 (6) of the Criminal Procedure Act is reversed, and it is again decided as follows after the oral argument. Since all appeals by Defendant A, D, and E are without merit, they are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act (Provided, That if the judgment of the court below ex officio under Article 25 of the Regulation on Criminal Procedure, it is corrected by adding each victim's sight list omitted as shown in the annexed Form).

The summary of facts constituting a crime and evidence. The summary of facts constituting a crime and evidence against a defendant B and C recognized by this court is the same as the description of each corresponding column of the judgment below except for deletion of paragraph (1) of the facts constituting a crime. Thus, they are cited under Article 369 of the Criminal Procedure

Application of Statutes

1. Article applicable to criminal facts;

Articles 268 and 30 of the Criminal Act, Articles 48 and 9(3) of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act, Article 30 of the Criminal Act (the point of closing or blocking fire-fighting systems)

1. Commercial competition;

Articles 40 and 50 of each Criminal Code (the punishment provided for the crime of death by occupational negligence and the crime of bodily injury by occupational negligence, between crimes of death by occupational negligence, and between crimes of bodily injury by occupational negligence, and punishment provided for the crime of bodily injury by occupational negligence against the person who

1. Selection of punishment;

Selection of imprisonment for the crime of occupational death, violation of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act, respectively.

1. Aggravation for concurrent crimes;

The reasons for sentencing under the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act, and Article 38(1)2 and (2), and Article 50 of the same Act, are as follows: (a) Defendant B and C were not in the entertainment tavern at the time of the occurrence of a fire; (b) the Defendants were punished for the same kind of crime; (c) there was no history of criminal punishment other than fines; (d) there was no specific criminal punishment other than fines; (b) the victims of the death of Sri Lankan, who agreed to the spouse; (c) but did not reach an agreement with the rest victims, they deposited a certain amount of money to the bereaved family members of the deceased caused by the instant fire; and (d) the scope of compensation for damages becomes final and conclusive through future civil litigation. It is recognized that

In particular, the above Defendants appears to have the largest power to decide on the installation of safety facilities, such as fire-fighting systems and alarm facilities, as the owner of the entertainment drinking house in this case. Although the Defendants, as the owner of the instant entertainment drinking house, are obligated to take maximum safety measures to prevent harm to the life and body of the facility users, they closed the instant emergency exit, which was additionally installed at the time of the interior of the entertainment drinking house in this case, as recommended by the Busan Fire Fighting Station at the time of the instant entertainment drinking house construction. The reason was that the reason was to install the singing machine and to increase operating profits by singing, the Defendants showed a typical behavior of safety in that they did not normally operate the warning facilities, such as portable emergency lighting, fire alarm, and emergency bell receipt, the Defendants cannot be exempted from liability even if they did not work normally. The Defendants’ gross negligence as the owner of the instant entertainment drinking house, as well as the result thereof, did not reach the age of the victims of the instant accident, and the circumstances leading up to the occurrence and management of the instant accident, the Defendants still did not have any duty of care to punish the victims.

The summary of this part of the facts charged is as stated in Article 2-1(a)(1) and Article 2-1(3) of the Criminal Procedure Act, as seen in Article 325 of the Criminal Procedure Act, since this part of the facts charged falls under the case where there is no proof of crime, the defendant B and C are acquitted.

Judges

The number of judges of the presiding judge;

Judges Kim Young-chul

Judges, Chief Judge

Note tin

1) If a fire breaks out, the internal customers of the room shall be forced to take out the images and sound of the singing machine with an emergency warning, and the images and sound of the singing machine are forced.

Safety facilities installed to more easily inform the occurrence of fire;

심급 사건

-부산지방법원 2012.11.28.선고 2012고단4339

부산지방법원 2013.5.10.선고 2012노3999

-부산지방법원 2013.5.10.선고 2012노3999

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