(영문) 대구지방법원 2019.12.13.선고 2019노1337 판결

The Defendant, a beauty artist, has the duty to take measures to minimize side effects due to the use of chromosome drugs by conducting the reaction test, etc. at the time of using chromosome drugs, and to notify the victim of the relevant matters in advance. Thus, the Defendant, who failed to observe these matters, is negligent in violating his duty of care. Nevertheless, the lower court erred by misapprehending the legal doctrine that acquitted the Defendant of the facts charged

2. Ex officio determination

Before the judgment on the grounds of appeal is made ex officio, the public prosecutor applied for changes in the indictment of this case to the effect that the indictment of this case was modified as stated in paragraph (a) of the following 3.3. Since this court permitted this, the judgment of the court below was no longer maintained.

However, despite the above reasons for ex officio reversal, the Prosecutor’s assertion of misapprehension of the legal principles is still subject to the judgment of this court within the scope of determining the modified facts charged, and this is examined below.

3. Judgment on the misapprehension of the legal principle of prosecutor

A. The revised facts charged

Around 16:00 on December 11, 2017, the Defendant is running by the 'A' room operated by the Defendant in Daegu. In the event that a person engaged in beauty art business uses chemical products containing the victim Kim Tae (the age of 46) who visited the place, such as the malphye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye dye.

B. Relevant legal principles

The negligence in the crime of injury by occupational negligence refers to the case where the occurrence of the result was not predicted even though the occurrence of the result was foreseeable, and the occurrence of the result was avoided even though it was possible to avoid it. In determining the existence of the negligence, the standard for the degree of general attention of ordinary persons engaged in the same duties and duties must be the standard. In the case of an accident in the same beauty art business as in this case, the standard for the level of general beauty art, beauty environment and conditions at the time of the accident, characteristics of beauty art act, etc. shall be considered (see, e.g., Supreme Court Decision 2010Do104, Apr. 14, 2011)

C. Specific determination

1) As to the non-working part of Alger response test

Even if the court below and the court below acknowledged the following facts and circumstances based on evidence duly adopted and examined cosmetic, i.e., the defendant was operating cosmetics since 2010, and the victim was visiting the above cosmetics once every month before average 1 year and 6 months since the occurrence of the accident, and ii) the defendant used the chromosome of "RG" 3 App solocing solocing solocsium, and then did not have any duty to inform the victim of the above chromosome reaction in light of the fact that it is difficult for the victim to find it difficult for the victim to be aware of the above chromosome reaction during the 6th anniversary of the fact that the victim had no duty to inform about the chromosome reaction, and the victim was performing the chromosome reaction of all of the above chromosomes so far as it is difficult for the victim to be aware of the chromosome reaction during the process of the above chromosome test.

2) As to the unused part of the side effects of chrode drugs

According to the evidence duly adopted and examined by the court below and the trial court, in principle, it is necessary to conduct a response test as to the use of a chlorinated chlorinated dys, etc., which may cause the reaction like the instant chlorinated dysia, in principle, since it is necessary to conduct a response test in advance. However, as seen earlier, the victim was already subject to a chlorinated dysing procedure with the chlorinated dysians, etc., which contain the ingredients of the Defendant, and there was no abnormal symptoms until the transfer of the instant case, so it is difficult to view that the Defendant was subject to the above duty of disclosure even in such cases.

In addition, even if the defendant was obligated to notify the defendant of the above facts, there is a proximate causal relation between the violation of duty of disclosure and the injury of the victim in order to be held criminal liability due to occupational negligence. The evidence submitted by the prosecutor alone cannot be readily concluded that even if the defendant notified the victim of the above reaction prior to performing a chromosome procedure, the victim refused to perform a chromosome procedure or demanded the implementation of a reaction test. Thus, it is difficult to find a proximate causal relation between the situation that the defendant did not notify the victim of the necessity of the reaction test due to the side effect of chromosome and the injury of the victim.

D. Sub-committee

Therefore, the judgment of the court below which acquitted the defendant is just, and there is no error of misapprehending the legal principles as alleged by the prosecutor.

4. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and it is again decided as follows.

【Discretionary Judgment】

The summary of the facts charged in this case is identical to the facts charged as modified in the above 3. A. This constitutes a case where there is no proof of crime as stated in the above 3.b., and thus, the acquittal is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment is announced in accordance with the main sentence of Article 5