[2] Criteria to determine whether an underground parking lot in an apartment complex constitutes “road” under Article 2 subparag. 1 of the Road Traffic Act

[3] In a case where the defendant was prosecuted for violating the Road Traffic Act by driving a vehicle at a section of about 50 meters of underground parking lots located in an apartment complex without a driver's license, the case holding that the court below erred in incomplete deliberation and misapprehension of legal principles in finding guilty on the ground that the above parking lot constitutes "road" under Article 2 subparagraph 1 of the Road Traffic Act, since it is unclear whether the above parking lot constitutes "road" under Article 2 subparagraph 1 of the Road Traffic Act

Article 2 subparagraph 1 of the Road Traffic Act provides that the term "road" means a road pursuant to the Road Act ((a)), a toll road pursuant to the Toll Road Act (b) and an agricultural and fishing village road pursuant to the Act on the Maintenance and Improvement of Road Systems in Agricultural and Fishing Villages (c) and other places where it is actually necessary to ensure safe and smooth traffic of unspecified persons or motor vehicles and horses (d) where it is open to the public.

Article 2 Subparag. 26 of the Road Traffic Act provides that the term “driving” means the use of a motor vehicle or horse on the road according to its original purpose and use (including the operation thereof), but in the following cases, the term “driving at a place other than the road” (Articles 148-2(1) and 44 of the Road Traffic Act), “driving while under the influence of alcohol (referring to narcotics, marijuana, psychotropic substances, and other substances prescribed by Ordinance of the Ministry of Public Administration and Security)” (Articles 148-2(3) and 45), “driving while under the influence of alcohol is unlikely to drive normally due to drugs (referring to narcotics, marijuana, and other substances prescribed by Ordinance of the Ministry of Public Administration and Security)” (Articles 148-2(3) and 45 of the Road Traffic Act), and “in cases where necessary measures such as killing or injuring persons or providing victims with personal information (referring to their names, telephone numbers, addresses, etc.) are not provided.” (Article 54(1)2 of the Road Traffic Act).

Article 2 Subparag. 26 of the amended Road Traffic Act (amended by Act No. 14911, Oct. 24, 2017; expected to be enforced April 25, 2018) is clear that only a motor vehicle which stops due to traffic, such as the driving of a motor vehicle, has been damaged by only the motor vehicle that stops due to the traffic, and Article 54(1)2 of the Road Traffic Act does not provide personal information to the victim (Article 156 Subparag. 10 of the Road Traffic Act).

As above, Article 2 subparag. 26 of the Road Traffic Act stipulates that the case of operating a vehicle at a place other than a road includes exceptional cases such as “driving under the influence of alcohol,” while such exceptions are not provided for in the case of driving without a license. Therefore, in order to establish a driving without a license in violation of Articles 152 and 43 of the Road Traffic Act, it shall fall under any of the roads provided in Article 2 subparag. 1 of the Road Traffic Act (i.e., roads pursuant to the Road Act), i., roads pursuant to the Toll Road Act, i.e., roads pursuant to the Toll Road Maintenance Act, i.e., rural roads pursuant to the Road Maintenance Act, and i., “other places open for an unspecified number of people, or vehicles and horses to ensure safe and smooth traffic.”

In the case of operating without a driver’s license in a place other than the road above, it does not constitute a driving without a driver’s license. It is not allowed in light of the principle of no punishment without a law, as it constitutes an analogical interpretation or broad interpretation.

Therefore, a person who drives a motor vehicle without a driver's license can only use a specific person or a person related to such person, not a place of public nature that affects the general traffic police authority as seen above, and a place of self-management is not a "driving on the road" as prescribed by the Road Traffic Act, and thus, it cannot be punished as a non-exclusive driving.

[2] An underground parking lot in an apartment complex may vary depending on the size and form of an apartment complex and parking lot, whether an apartment complex or parking lot has a blocking facility, whether a security guard, etc. has access control by the security guard, whether an outside person, other than an apartment complex, can use a parking lot, etc.

[3] In a case where the defendant was prosecuted for violating the Road Traffic Act by driving a car at a section of about 50 meters of underground parking lots located in an apartment complex without a driver's license, the case holding that the court below erred in the misapprehension of the legal principles as to roads and unauthorized driving as stipulated in the Road Traffic Act, since it is unclear whether the above parking lot can be used only by apartment residents or those related thereto, and if the security guards manage by themselves, it can not be seen that the driver's act of driving a motor vehicle does not constitute a unauthorized driving prohibited under the Road Traffic Act, without examining the size and form of apartment and parking lot, specific management and use of apartment and parking lot, etc., although it is not clear whether the above parking lot constitutes a road under Article 2 subparagraph 1 of the Road Traffic Act.

1. Summary and key issues of the facts charged in this case

Of the facts charged in the instant case, the summary of the violation of the Road Traffic Act (unlicensed Driving) is as follows: (a) on May 14, 2017, the Defendant driven (vehicle registration number omitted) 50 meters from the (road address omitted) underground parking lot of Gangseo-si, ○○○ apartment to the same apartment △△dong underground parking lot (hereinafter “instant parking lot”) at around 0 meters from the 07:00 on May 14, 2017 without obtaining a driver’s license.

The lower court upheld the first instance judgment which convicted the Defendant of the above facts charged on the ground that the Defendant’s act constitutes a driving without a license in violation of Article 152 subparag. 1 and Article 43 of the Road Traffic Act.

The key issue of the instant case is (1) whether driving without a license is limited to driving on the road, and (2) whether the place of the instant driving falls under the road.

2. Whether the provisions of the Road Traffic Act apply only to cases of driving without a license for driving on roads;

Article 43 of the Road Traffic Act provides that "no person shall drive a motor vehicle unless he/she obtains a driver's license from the commissioner of a district police agency or when his/her driver's license is suspended pursuant to Article 80, and is punished in cases of violation thereof (Article 152 subparagraph 1 of the Road Traffic Act).

Article 2 subparagraph 1 of the Road Traffic Act provides that the term "road" means a road pursuant to the Road Act ((a)), a toll road pursuant to the Toll Road Act (b) and an agricultural and fishing village road pursuant to the Act on the Maintenance and Improvement of Road Systems in Agricultural and Fishing Villages (c) and other places where it is actually necessary to ensure safe and smooth traffic of unspecified persons or motor vehicles and horses (d) where it is open to the public.

Article 2 subparag. 26 of the Road Traffic Act provides that the term “driving” means the use of a vehicle or horse on the road in accordance with its original purpose and use (including the operation of the vehicle or horse), but in the following cases, it includes the case of operating a vehicle or horse at a place other than the road. ① “driving under the influence of alcohol” (Articles 148-2 (1) and 44 of the Road Traffic Act), ② “driving under the influence of alcohol (referring to narcotics, marijuana, psychotropic substances, and other things prescribed by Ordinance of the Ministry of Public Administration and Security)” (Articles 148-2 (3) and 45 of the Road Traffic Act), ③ “driving under the influence of alcohol (referring to narcotics, marijuana, and other things prescribed by Ordinance of the Ministry of Public Administration and Security)” (excluding a person who fails to provide personal information to a victim pursuant to Article 54 (1) 2 of the Road Traffic Act).

Article 2 Subparag. 26 of the amended Road Traffic Act (amended by Act No. 14911, Oct. 24, 2017; expected to be enforced April 25, 2018) is clear that only a motor vehicle which stops due to traffic, such as the driving of a motor vehicle, has been damaged by only the motor vehicle that stops due to the traffic, and Article 54(1)2 of the Road Traffic Act does not provide personal information to the victim (Article 156 Subparag. 10 of the Road Traffic Act).

As above, Article 2 subparag. 26 of the Road Traffic Act stipulates that the case of operating a vehicle at a place other than a road includes exceptional cases such as “driving under the influence of alcohol,” while such exceptions are not provided for in the case of driving without a license. Therefore, in order to establish a driving without a license in violation of Articles 152 and 43 of the Road Traffic Act, it shall fall under any of the roads provided in Article 2 subparag. 1 of the Road Traffic Act (i.e., roads pursuant to the Road Act), i., roads pursuant to the Toll Road Act, i.e., roads pursuant to the Toll Road Maintenance Act, i.e., rural roads pursuant to the Road Maintenance Act, and i., “other places open for an unspecified number of people, or vehicles and horses to ensure safe and smooth traffic.”

In the case of operating without a driver’s license in a place other than the road above, it does not constitute a driving without a driver’s license. It is not allowed in light of the principle of no punishment without a law, as it constitutes an analogical interpretation or broad interpretation.

Therefore, a person who drives a motor vehicle without a driver's license can only use a specific person or a person related to such person, not a place of public nature that affects the general traffic police authority as seen above, and a place of self-management is not a "driving on the road" as prescribed by the Road Traffic Act, and thus, it cannot be punished as a non-exclusive driving.

3. Whether an underground parking lot in an apartment complex falls under a road under the Road Traffic Act;

An underground parking lot in an apartment complex may vary depending on the size and form of apartment complex and parking lot, whether a blocking facility is installed in apartment complex or parking lot, whether a security guard, etc. has access control by the security guard, whether an outside person who is not a resident of an apartment complex can use a parking lot, etc.

The instant parking lot is an underground parking lot located in an apartment complex and can only be used by apartment residents or those related thereto, and its security guards, etc., if they manage themselves, may not be seen as a road. Even based on the evidence duly adopted by the first instance court, it is unclear whether the instant parking lot falls under a road under Article 2 subparag. 1 of the Road Traffic Act even if it is based on the evidence duly adopted by the lower court.

Therefore, there is room to deem that the act of driving a motor vehicle by the defendant on May 14, 2017 does not constitute a non-licensed driving prohibited under the Road Traffic Act. The lower court should have deliberated specifically on the size and form of the apartment complex and parking lot, the specific management and use status of the apartment complex and the instant parking lot, and determined whether the instant parking lot falls under a road under Article 2 subparagraph 1 of the Road Traffic Act.

Nevertheless, the lower court upheld the first instance judgment that found the Defendant guilty of this part of the charges on the ground that the Defendant’s act of driving his/her motor vehicle constitutes a non-licensed driving without any particular examination as to the specific management and use of access to the instant parking lot. In so doing, the lower court erred by misapprehending the legal doctrine on roads and non-licensed driving as prescribed by the Road Traffic Act without exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

4. Conclusion

The part of the judgment of the court below on violation of the Road Traffic Act (unlicensed driving) shall be reversed. Since the court below rendered a single sentence on the grounds that the part and the remaining parts found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment below shall be reversed in its entirety

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

Justices Kim Chang-suk (Presiding Justice)