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(영문) 대법원 1993. 5. 11. 선고 93도49 판결

[특정범죄가중처벌에등에관한법률위반(도주차량),도로교통법위반][집41(2)형,705;공1993.7.15.(948),1751]

Main Issues

In case where the driver of a vehicle inflicts a bodily injury on another person by negligence in the course of performing his duties and damages things and absconds therefrom, the relationship between the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes and the crimes provided for in Article 106 of the Road Traffic Act and the above two crimes and the crimes of violating Article 44 of the Act on the Aggravated Punishment, etc. of Specific Crimes provided for in subparagraph 1 of

Summary of Judgment

When the driver of a vehicle runs away without taking measures under Article 50 (1) of the Road Traffic Act, such as neglecting his duty of care in the course of performing his duties to injure the people and aiding the victims, all of the crimes under Article 44 of the Road Traffic Act and the crime under Article 106 of the Act on the Aggravated Punishment, etc. of Specific Crimes and the crime under Article 106 of the Aggravated Punishment, etc. of Specific Crimes are established. In this case, the crime under Article 106 of the Aggravated Punishment, etc. of Specific Crimes and the crime under Article 106 of the Aggravated Punishment, etc. of Specific Crimes Act due to failure to take necessary measures after causing damage to the goods are related to several crimes, and the crime under Article 44 of the Aggravated Punishment, etc. of Specific Crimes and the crime under Article 113 subparagraph 1 of the Aggravated Punishment, etc.

[Reference Provisions]

Article 5-3(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 106 of the Road Traffic Act, Article 113 subparag. 1, Article 44 of the Road Traffic Act, Articles 37 and 40 of the Criminal Act

Reference Cases

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 4540, Nov. 13, 1992) (Law No. 1993, Nov. 13, 1992) (Gong1993, 165)

Escopics

Defendant

upper and high-ranking persons

Prosecutor

Judgment of the lower court

Busan High Court Decision 92No673 delivered on December 10, 1992

Text

The judgment of the court below is reversed.

The case is remanded to Busan High Court.

Reasons

The Prosecutor's grounds of appeal are examined.

1. Summary of the facts charged in this case

On October 28, 1991, the Defendant, as a driver of a vehicle, is driving the vehicle above at around 23:30 on the same day, and immediately stops the front side of the YY-dong, Busan, Seog-dong, Seog-dong, Busan, which is driving at the lower side of the YY-dong, from the Mono-dong, to the lower side of the Y-dong, and the front side of the taxi at the lower side of the YY-dong, and does not see the front side without maintaining the safety distance and driving the vehicle at the front side of the vehicle while driving the vehicle due to the subway construction relationship, while driving the vehicle at the front side of the vehicle while driving the vehicle, it is difficult for the victim to inflict damage on the front side of the vehicle while driving the vehicle at the front side of the vehicle, and also runs away without taking necessary measures, such as aiding the victim.

2. Summary of the reasoning of the judgment below

On November 7, 191, the court below found that the defendant violated the duty of care due to the violation of the duty of care due to the chief of the competent police station on November 3, 1991, that he did not perform the duty of safe driving under Article 44 of the former Road Traffic Act (Act No. 4243, Aug. 1, 1990; hereinafter referred to as the "Act") and paid the above penalty on November 16, 190 within the payment period. The court below determined that the above act did not perform the duty of safe driving, which is the content of the above act, and that the violation of the duty of care which is the cause of the traffic accident of this case, violated the duty of the same contents as required for the same act of operation. Accordingly, the court below ruled that the person who was sentenced to the above disposition of notification as provided in Article 113 of the Act and Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as "the Act"), and that the above provision should not be imposed on the penalty for violation of Article 16 of the Act.

3. Determination of party members

Article 106 of the Aggravated Punishment Act is an intentional crime established when the driver of an accident who commits a crime under Article 268 of the Criminal Act by traffic of a motor vehicle, etc. is aware of the fact that the driver caused the death or injury of another person, and the crime under Article 106 of the Act also requires the driver and other crew members of the motor vehicle who cause the death or injury of another person or damage to things due to the traffic of the motor vehicle, such as the crime of violating the Aggravated Punishment Act (in particular, in the case of the crime under Article 106 of the Act, the traffic accident does not require the accident to occur due to reasons attributable to the driver's intentional act or negligence, etc.). Thus, the crime of Article 113 subparagraph 1 of the Aggravated Punishment Act is established when the driver of the motor vehicle does not simply perform the duty of safe driving required when the driver of the motor vehicle is driving the motor vehicle, and the crime of Article 104 of the Aggravated Punishment Act does not overlap with Article 16 of the Aggravated Punishment Act.

Nevertheless, the court below rendered a judgment of acquittal against the defendant as a result of the fact that the defendant's violation of Article 44 of the "Act" and Article 106 of the "Act" and the violation of special law under Article 113 subparagraph 1 of the "Act" and Article 106 of the "Act" and the violation of special law are in the relationship of commercial concurrent crimes. Thus, the court below erred in the misapprehension of legal principles as to Article 106 Article 113 of the "Act" and Article 5-3 (1) of the "Act" and it is obvious that such violation has affected the conclusion of the judgment. Thus, there is a reason to point this out.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon-young (Presiding Justice)

심급 사건
-부산고등법원 1992.12.10.선고 92노673