Violation of traffic law (driving)

Of the facts charged in the instant case, the charge of violating the Road Traffic Act (driving) shall be acquitted.

The summary of the acquittal portion in this judgment shall be publicly announced.

At around 01:30 on January 10, 2015, the Defendant, who is engaged in driving Cirsom car, was driving the said car at a low speed, and was driving on the two-lane road in the Bircheon-gu Sung-gu Sung-gu, Chungcheongnam-gu, Chungcheongnam-do.

At the time, it was difficult at night to see the e-mail, so in such cases, a person engaged in driving a motor vehicle has a duty of care to reduce the speed and to safely drive the motor vehicle by taking into account it well.

Nevertheless, the Defendant neglected the above duty of care and found the victim D (the age of 29) who was crossing the road from the right-hand side of the Defendant’s running route to the left-hand side, and received the front of the Defendant’s driving car.

Ultimately, even though the Defendant suffered from an injury, such as a dysium, etc., due to such occupational negligence, the Defendant immediately stopped the victim and escaped without taking measures, such as aiding the victim, and at around 02:13 on the same day, caused the death of the victim due to the dystrophism of telegraphs by suleing suleing and suleing sulkes, etc. on the same day.

Summary of Evidence

1. Defendant's legal statement;

1. Protocol of inspection by this Court;

1. Each prosecutor's protocol of examination of the accused;

1. E prosecutorial statement;

1. The police statement concerning F;

1. A report on the occurrence of a traffic accident and a report on actual condition investigation;

1. Investigative report (Presumption of a suspected vehicle), open cover photo, etc., a copy of the approval of new credit cards, the closure of video data taken by a suspect, investigation report (specific phone number of a suspect), CCTV analysis, and tracking of suspected vehicles;

1. A written request for appraisal, a written report and an appraisal report;

1. A written autopsy report and a written autopsy and appraisal report;

1. On-site photographs and photographs of carcasses;

Application of Statutes

1. Article applicable to criminal facts;

Article 5-3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 268 of the Criminal Act

1. Selection of punishment;

Optional of limited imprisonment

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered in favor of the reasons for sentencing)

Grounds for sentencing

[Determination of Punishment] Traffic Crime Group and Type 3 (Death, etc. after Escape) of Escape after Traffic Accidents

[Determination of the recommended area] Special mitigation area (i.e., ‘self-denunciation' or ‘non-compliance with punishment' among special mitigation factors, and no special aggravation factor exists)

[Scope of Recommendation Sentence] Two years and six months to Four years (based on the lowest sentence of applicable punishment in law)

【Main Grounds for Suspension of Execution of Sentence】

- Major illegal grounds: in the event of the occurrence of the death.

- Major pride: 'not to impose a punishment', 'no record of criminal punishment'

[Determination of Sentence] Three years of imprisonment

Article 5-3(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall apply to the case where the driver of a vehicle has fleded, caused the death of the victim by causing a traffic accident, or where the victim has died after the escape, and such driver shall be sentenced to imprisonment for life or for not less than five years. In comparison with the Act on the Aggravated Punishment, etc. of Specific Crimes, if the driver of a vehicle causes the death of the victim due to a traffic accident, the statutory punishment significantly increased, and the driver of the vehicle shall be punished by aggravated punishment for the escape driver without taking measures such as aiding the victim by traffic of the vehicle, such as aiding the crime by occupational negligence and aiding the victim, and thereby contributing to the maintenance of sound social order. Therefore, the above legislative intent should be fully considered in determining the punishment against the defendant.

The Defendant, as seen below, was unable to know the degree of drinking at the time of the accident, but, while driving a motor vehicle after drinking a considerable amount of alcohol, was negligent in neglecting the duty of front-time care and went away without any action. In light of the Defendant’s course of escape and the process of escape, etc., the Defendant appears to have been fully aware of the fact that the instant accident occurred at the time of the instant accident. The instant accident occurred mainly at the time of the instant accident. In the roads where the instant accident occurred, even though there was a pedestrian crossing where signal, etc. was installed at the speed of 200 meters in front of the road along which the vehicle passes, there was negligence on the road crossing the road at a place other than the crosswalk, but there was no obstacle on the road where the driver ought to take time until the scene of the accident, and thus, it seems that the Defendant could have sufficiently avoided the instant accident if the Defendant, as the driver of the motor vehicle, had driven the vehicle properly and driven the vehicle. Ultimately, only one victim who was at home due to the instant accident, left the road.

However, the Defendant was aware of the fact that the instant accident was being investigated through the search of Internet news, etc., but there was an attempt to conceal his criminal act by purchasing vehicle parts in other areas where the occurrence of the instant accident was likely to occur without immediately receiving any consent, and directly repairing the damaged part at the time of the accident. However, the Defendant was aware that the instant accident was narrow through the investigation, etc. on the nominal owner of the credit card used at the time of the purchase of vehicle parts, and eventually, the Defendant voluntarily surrendered 19 days after the instant accident.

On the other hand, the defendant seems to have been seriously against his own mistake, and it seems that the defendant has been living in good faith as the most valuable family during the past, and the bereaved family members and bereaved family members do not want to be punished against the defendant, and it cannot be denied that the victim crossinging the road at the place other than the crosswalk during the late night hours was negligent, which affected the occurrence of the accident or the expansion of damage.

However, even if considering the above circumstances favorable to the defendant, the purport of legislation that requires a aggravated punishment for the driver who has escaped, even though having caused the result of the death of the victim due to the traffic of the vehicle, the occurrence of the serious result of the victim's death, the attempt to conceal his crime after the crime, the agreement with the victim's bereaved family members, but it cannot be evaluated as identical to the agreement with the victim himself, and thus, there is a need to be considered within the limited scope as an element of sentencing, and other various sentencing conditions such as the defendant's age, character, character, occupation, family relationship, property status, etc. shall

Parts of innocence

1. Summary of the facts charged

The Defendant was driving a car with the blood alcohol concentration of 0.162% at the time and at the place of the ruling.

2. Determination,

A. Relevant legal principles

The Road Traffic Act which provides for the prohibition of driving under the influence of alcohol shall be deemed to be under the influence of alcohol in cases where the blood alcohol concentration of a driver is not less than 0.05%, and shall be subject to criminal punishment for such driver, but it shall be subject to the three-stage classification according to the specific numerical value of blood alcohol concentration, and as the numerical value is higher, the corresponding statutory penalty is higher. Therefore, in the case of the violation of the Road Traffic Act by driving under the influence of alcohol, the blood alcohol concentration of a driver at the time of driving constitutes a crime element.

In order to find out the existence of the elements of crime as above, individual and specific facts, which are the premise for the application of the rule of law, should be strictly proved. In the case of the Badmark formula, the amount of alcohol taken in as data for the application, drinking time, body weight, etc., so strict proof of such premise facts is required.

Meanwhile, in the calculation of the highest blood alcohol content, the presumption method of blood alcohol content may have an impact on the outcome by the absorption and distribution of alcohol with respect to the maximum blood alcohol content and decomposition and extinguishment due to time. Among them, in the calculation of the highest blood alcohol content, the absorption rate and nature of alcohol taken in may have an impact on the body of alcohol, rain, age, extension, body weight, etc. In accordance with individual’s physical constitution, kinds of drinking alcohol, drinking speed, and degree of food that is disguised in drinking. The decomposition of alcohol may vary from the highest blood alcohol content to the highest blood alcohol concentration. The degree of normal alcohol, physical constitution, drinking speed, and physical activity may have an impact on the decomposition of alcohol per hour, and there are various factors that may have an impact on the blood alcohol concentration at a specific time. As such, in a criminal trial, recognition of the facts charged should not be reasonably proven to the extent that there is no reasonable doubt that the Defendant could reasonably have an average influence on the blood alcohol concentration at a certain point (see, e.g., Supreme Court Decision 2008Da2828, supra).

B. We examine in light of these legal principles.

(1) Since the Defendant was arrested at 19 days after the Defendant escaped from the instant accident, there was no objective data that could identify the Defendant’s blood alcohol content at the time of the instant accident because the Defendant’s blood alcohol content was not measured immediately at the time of the instant accident or immediately after the instant accident. Accordingly, on the basis of the Defendant’s work club H, I, etc.’s statement and the body of the Defendant measured at the time of the instant crime, etc., on the basis of the Defendant’s employees living together with the Defendant before the instant crime was committed, the Defendant’s blood alcohol content at the time of the instant accident was presumed to be 900 hours per week, and the Defendant’s body was presumed to be 67.5 km, on the premise that the Defendant’s blood alcohol content at the time of the instant crime was 0.162% by applying the F

(B) 00x alcohol content 0.19%x alcohol content 0.7894x physical absorption rate 0.7) ¡À(27.5x 0.86x 10%) = 0.162%

(2) However, with respect to the adequacy of the Prosecutor’s above-mentioned formula, there is a strong doubt in light of the following circumstances.

(A) According to the statement of H and I, etc., the Defendant, along with the Defendant before the crime of this case, dices: ① from 17:00 before the crime of this case to 18:00 to 19:00 to 19:00 to 19:0 to 200 to 19:0 to 3:0 to 200 to 19:0 to 4-5 to 19:0 to 200 to 200; ② to 19:00 to 19:30 to 19:0 to 00 to 0:0 to 00 to 0:0 to 00 to 19:0 to 00 to 19:0 to 00 to 0:0 to 00 to 19:00 to 19:0 to 00 to 100 to 200 to 200 to 200 to 200 to 200 to 10:0 to 200.

In addition, H and I stated that the Defendant had a great amount of drinking water while drinking water even at the time of drinking, because the Defendant had a good food, such as a restaurant, frequency, etc. that overlaps with the Defendant at the time of drinking, and that he did not seem to be under the influence of alcohol due to no particular problem such as the Defendant’s speech or walking at the time of drinking.

(B) The Defendant’s drinking volume

The Defendant’s drinking volume before committing the instant crime is in absence of objective data, and according to H and I’s statements, three persons, from 18:00 to 22:00 prior to the instant crime, drink 6 to 7 diseases in the same amount as each other (in the case of a group of 7 diseases in total, the Defendant’s drinking volume is 840 square meters if a group of maths is divided into 8:40 square meters; if a group of maths is divided into 6 diseases in total, the Defendant’s drinking volume is 720 square meters if a group of maths is divided into 7 diseases in total, the Defendant’s drinking volume is 720 square meters); and there is considerable doubt as to whether the Defendant’s drinking volume (900 square meters) premised on applying the Ma

(C) The body of the defendant

Although the body weight of the defendant measured at the time of arrest was 67.5km, on November 13, 2014, around two months prior to the date of the crime in this case, at the time of the health examination, the body weight of the defendant was 70km, and the defendant argued that the body weight of the defendant was sharply decreased at the time of arrest due to stress, such as the reduction of liability after the crime in this case, etc., but the body weight of the defendant was sharply decreased at the time of the crime in this case due to the annual meeting, etc.

(d) The hourly decrease in the blood alcohol concentration;

① Although there are differences for each individual, it is generally known that blood alcohol concentration between 30 to 90 minutes after drinking reaches the highest level, and thereafter 0.08% to 0,003% per hour (average approximately 0.015%) reduces by 0.08% (average about 0.015%). In the case of drinking in multiple installments, once again, it is made through the process of absorbing math alcohol again in blood after absorbing mathn within blood again, and at the same time, the blood alcohol concentration level has reached the highest level of alcohol concentration at any point, and there is no obvious material as to which time it reaches the highest level of alcohol content.

② According to the statement of H, I, etc. in this case, the Defendant did not drink alcoholic beverages at once before the crime of this case, but did not drink alcoholic beverages at the same time between 18:00 to 22:00, while drinking alcoholic beverages several times, and then drinking alcoholic beverages at a singing practice room was b2:00. Thus, the Defendant’s final drinking time may be viewed as 22:0 years before the crime of this case.

③ Accordingly, in a case where the general standard that “the blood alcohol content has reached the highest level between 30 to 90 minutes after drinking and then has decreased by 0.08% from 0.08 to 0.03% per hour (average of 0.015%)” is applied most favorable to the Defendant, namely, the Defendant, at around 30 minutes after drinking (2:30 on the day immediately before the crime of this case), has reached the highest level of blood alcohol content and 0.03% per hour thereafter reduced by 0.03% per hour, it is sufficient to view that the Defendant’s blood alcohol content at the time of the crime of this case (01:30 on the day of the crime of this case) has already decreased by 0.09% over 3 hours, but the Prosecutor did not consider at all the time of the blood alcohol content reduction.

(e) Other diverse factors that may affect the blood alcohol concentration;

According to the statement H, I, etc. of this case, the defendant drinked a large quantity of alcohol while drinking alcohol prior to the crime of this case, drinking a large quantity of water, drinking a large quantity of water, completed a de facto drinking at around 22:00, and danced through singing in a singing practice room for two hours after he completed drinking, and divided the conversations between coffee and bread from 00:00 on the day of the crime of this case to 01:00, and these circumstances may affect the decomposition of alcohol per hour. However, the prosecutor did not consider these factors in calculating the blood alcohol concentration of the defendant by applying the above dmark formula.

(3) As seen earlier, there is no measurement of the Defendant’s blood alcohol content at the time of the instant accident or immediately after the accident. In the instant case, it cannot be deemed that the Defendant’s blood alcohol content was proven to the extent that there is no reasonable doubt as to the premise for the application of the above mark formula, such as the volume of alcohol taken by the Defendant, the time of drinking termination, and the body body weight, etc., the evidence submitted by the Prosecutor alone is insufficient to recognize that the Defendant’s blood alcohol content at the time of the instant accident falls under 0.162% as stated in the above facts charged, or at least 0.1%, and there is no other evidence to prove otherwise.

Rather, the possibility of presumed that the Defendant’s blood alcohol content was too excessive to 0.035% that the Defendant’s blood alcohol content at the time of the instant accident, when interpreting the aforementioned various circumstances extremely favorable to the Defendant, cannot be ruled out.

(The 0.7894x 0.7 out of the x alcohol content of 720x 0.19% of the volume of sound alcohol: (0.86x 10%) (0.09% of the volume of blood alcohol content reduced by 0.09% of the volume of 70x male in body)

3. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment is publicly announced pursuant to Article 5

It is so decided as per Disposition for the above reasons.

Judges of Grade I:

Judges Lee Jae-min