[1] The meaning of "business" in the crime of causing bodily injury by occupational negligence, and whether the status of building owner can be seen as "business" in the crime of causing bodily injury by occupational negligence (negative)

[2] In a case where electric wires installed on the wall surface of the second floor of a building of the fourth floor with the third floor and the fourth floor installed on the wall surface of the second floor fall into a joint line and fire breaks out, the case reversing the judgment below which held that there was evidence of "business" in the crime of causing bodily injury by occupational negligence solely on the ground that the owner of the building of the second floor of the fourth floor leased the second floor of the building

[3] The case reversing the judgment of the court below that there was a violation of the duty of care as to "the crime of injury by occupational negligence" on the ground that the lessee knew that there was an error in the safety of a building

[1] In the crime of injury by occupational negligence, “business” refers to a business continuously engaged in as a single position in a person’s social life. This includes not only the duty of safety consideration, but also the duty to prevent any danger to people’s lives and bodies, since the duty to perform is dangerous. It is difficult to view it as “business” in the crime of injury by occupational negligence, solely on the ground that a continuous and continuous repair of a building or lease of a part of a building without the continuity of such a position as above, as the owner of a building without having continued to engage in safety consideration or safety management affairs.

[2] In a case where electric wires installed on the wall surface of the second floor of a building of the fourth floor with the third and fourth floor were cut off with a composite line, and fire was caused, the case reversing the judgment of the court below that there was proof of "business" in the crime of injury by occupational negligence solely on the ground that the owner of the building of the fourth floor leased the second floor of the building as the owner of the building of the second floor.

[3] The case reversing the judgment of the court below that there was a violation of the duty of care on the ground that, with regard to the fire of a building, electric wires on the third floor and the fourth floor of the building were buried and installed on the wall surface of the second floor of the building, and electric wires on the third floor and the fourth floor of the building were installed through the front section of the wall inside the wall, there are special circumstances to regard the lessee as belonging to the area of lessee's control and management, whether the power department or electric wires belong to the area of lessee's control and management, the lessee has the duty of care to prevent fire due to the above part of the electric wires or the internal cable above, and whether the duty of care belongs to the "occupational caution", without examining whether the power department or the electric wires on the third floor and the fourth floor of the building were fire and the second floor of the building for ten years, and it was known that there was a defect in the safety of the building.

[1] Article 268 of the Criminal Code / [2] Article 268 of the Criminal Code / [3] Article 268 of the Criminal Code

[1] Supreme Court Decision 88Do1273 delivered on October 11, 198 (Gong1988, 1422) Supreme Court Decision 2002Do1342 delivered on May 31, 2002, Supreme Court Decision 2006Do3493 Delivered on May 31, 2007

Defendant 1 and one other

Defendants

Attorney Kim Jong-type

Suwon District Court Decision 2008No1366 Decided January 15, 2009

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

1. As to Defendant 2’s grounds of appeal on “the cause of fire-generating”

In full view of the facts set out in its reasoning, the lower court determined that the instant fire was first caused by the electrical problem of the overall part of the walls between the building stairs and classrooms located inside the classroom, in view of the circumstances set out in its holding.

Upon examining the records in light of the relevant legal principles, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of the principle of evidence judgment or incomplete deliberation by recognizing the cause of a fire even though it did not reach the proof that there is no reasonable doubt, as otherwise alleged in the ground of appeal. This part of the grounds of appeal is not accepted.

2. As to Defendant 2’s ground of appeal on “business”

The Criminal Act punishs a person who causes bodily injury to another by negligence, or a person who causes the death of another by occupational negligence or gross negligence as a crime of causing bodily injury to another by occupational negligence (see Articles 266, 267, and 268 of the Criminal Act). In the crime of causing bodily injury by occupational negligence, “business” refers to a business continuously engaged in as one position in a social life, and includes not only the duty of care for safety but also the duty to prevent any danger to human life and body (see, e.g., Supreme Court Decisions 8Do1273, Oct. 11, 198; 2002Do1342, May 31, 2002; 2006Do393, May 31, 2007).

Therefore, the mere fact that the owner of a building, as the owner of the building, has continuously engaged in the safety consideration or safety management affairs without any continuity as above, repairs the building in an irregular manner or leases part of the building, cannot be recognized as a "business" in the crime of injury by occupational negligence.

The judgment of the court of first instance, which the court below maintained, is the owner of the building of the fourth floor of this case, and Defendant 2 shared with Defendant 1, who operated the “○○○ Sym Institute” by leasing the second floor of the above building, and the said Sym Institute, installed electric wires with the third floor and the fourth floor through the squad installed inside the wall, and did not conduct fire prevention inspections once after construction of the above building around 1993, and there is a danger of electric wires due to the reasons such as the removal of the clothes of the worn-out electric wires. As the owner of the above building, Defendant 2, as the owner of the above building, neglected his duty of care to prevent the occurrence of fire in advance by neglecting the electric installations after being negligent in performing his duty of care and neglected to prevent the occurrence of fire, thereby causing the victims of the above divided electric wires in the above part of the building to be removed from the wall of the above private teaching institute, and thereby causing injury to each of the above private teaching institute.

In this case, Defendant 2 consistently stated in the investigative agency that he did not have a duty of care, and in the court below, Defendant 2 argued that the status as the owner of the fourth floor building of this case does not constitute “business” for the crime of injury by occupational negligence (see, e.g., trial record 442). Accordingly, the issue of “business” as stated in the facts charged is one of the most key issues of this case.

Thus, the court below should have determined the "business" in relation to the crime of bodily injury caused by occupational negligence in accordance with the legal principles mentioned above, by making a prosecutor who bears the burden of proof in relation to "business" as stated in the facts charged, to clarify the litigation relation by asking for questioning or demanding the addition of the facts charged.

Nevertheless, without sufficiently examining this point, Defendant 2, as the owner of the building of the fourth floor in this case as in the facts charged of this case, had evidence of “business” in relation to Defendant 2’s crime of injury by occupational negligence, or did not exhaust all necessary deliberations. The court below erred by misapprehending the legal principles on “business” in relation to the crime of injury by occupational negligence, or failing to exhaust all necessary deliberations. The ground of appeal assigning this error is with merit.

3. As to Defendant 1’s ground of appeal on “Duty of Care”

If the electrical distribution line is installed inside the wall and forms part of the structure of the building, the responsibility to manage the electrical distribution line shall be generally deemed to be the owner. However, in special circumstances, such as the lessee himself/herself, and he/she knew or could have known of the whole part, the lessee may also have the duty of due care to prevent fire due to the defect of the part.

The court of first instance maintained by the court below found Defendant 1 guilty of the facts charged that Defendant 2, who leased the second floor among the buildings of this case and operated the “○○○○ Culture and Arts Institute”. Defendant 2, in collaboration with Defendant 2, neglected to check electric installations and to prevent the occurrence of a fire in advance despite his duty of care, and neglected to prevent the occurrence of a fire, thereby causing injury to the victims as described in Paragraph 2.

In this case, Defendant 1 stated that, consistent with the investigation agency, the electric wires from the third and fourth floor of the building of the fourth floor of this case are fire causes, and there is no "occupational duty of care" as to the electric wires from the third and fourth floor of the fourth floor. It is interpreted that Defendant 1 has no "occupational duty of care" as to the management of the parts, since the point of extinguishment of the fire in this case falls under the control and management area of the defendant.

According to the evidence adopted by the first instance court, the subdivisions pointed out as the point of origin of the instant fire are buried in the wall of the said private teaching institute, and electric wires up to the third floor and fourth floor of the said building are scattered after the passage inside the wall. If the distribution structure is the same, the lower court should first determine whether the subdivisions or electric wires set out as the cause of the instant fire fall within the controlled and managed area of the lessee, or within the controlled and managed area of the building owner as a part of the building structure. If the electric wires or electric wires are not located within the controlled and managed area of the lessee, the lower court should have determined whether they were guilty by examining whether the above subdivisions or electric wires or electric wires are in the controlled and managed area of the building owner. Furthermore, if the electric wires or electric wires are not within the controlled and controlled area of the lessee, there is a special reason to view that the lessee has the duty of care to prevent fire due to the malfunctions or internal electric wires, and further, whether they belong to the breach of the duty of care.

Nevertheless, without making sufficient deliberation on this point, the court below held that Defendant 1 violated the "occupational Duty of Care" solely on the ground that electric wires up to the third floor and fourth floor of the instant subdivision or the instant fourth floor building were fire causes, and for ten years, from 10 years to scam private teaching institutes, Defendant 1 knew that there was a defect in the safety of the building due to water leakage and water leakage in the building (it is difficult to see that the above subdivision and water leakage were known frequently in the building on the ground that he knew that there was an error in the above subdivision and its interior line). In this case, the court below erred by misapprehending the legal principles on the crime of injury by occupational negligence or failing to exhaust all necessary deliberations.

In addition, in order to recognize facts constituting an offense different from the facts charged as stated in the indictment ex officio without changing the indictment, the identity of the facts charged should be limited to the extent recognized, and there should be no concern about actual disadvantages to the defendant's exercise of his right to defense (see, e.g., Supreme Court Decisions 98Do667, Apr. 9, 199; 2003Do252, Jul. 25, 2003). In light of these legal principles, the court below must pay attention not to place easily attached articles, such as fire or electric wires, not to the reason that Defendant 1 was negligent in managing the subdivision or electric wires of this case, but to protect young students from being placed in the surrounding areas, and if the court found the defendant guilty of the facts charged of this case on the ground that he violated his duty to pay attention to fire and to minimize damage caused by fire, this constitutes an unlawful error in the misapprehension of legal principles as to the alteration of the indictment.

The ground of appeal pointing this out is with merit.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)