[특정범죄가중처벌등에관한법률위반(위험운전치사상)·교통사고처리특례법위반·도로교통법위반(음주운전)·도로교통법위반(무면허운전)][미간행]
A
Defendant
Support of ships
Attorney B (Korean National Assembly)
Seoul Central District Court Decision 2008 Godan3925 Decided August 27, 2008
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than five months.
The fifty-three days of detention prior to the pronouncement of the judgment below shall be included in the above sentence.
1. Summary of grounds for appeal;
In light of the circumstances that may be considered in the circumstances leading to the instant driving, and the fact that the suspended sentence imposed on January 18, 2008 is invalidated when the lower court that rendered the instant sentence became final and conclusive, the sentence of the lower court is too unreasonable.
2. Ex officio determination
In light of the structure of Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes and the legislative intent of the Act on the Aggravated Punishment, etc. of Specific Crimes, where a person was injured or injured while driving a vehicle while normal driving is difficult due to influence of drinking, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is added to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death or Injury resulting from Injury resulting from Injury by Occupational Negligence), and only the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death or Injury resulting from Injury resulting from Injury by Occupational Negligence) is established and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is not established. However, as seen later, as long as
3. Conclusion
Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, since the above reasons for ex officio reversal exist, and the judgment below is judged as follows.
On January 18, 2008, the Defendant is a person who is currently under the suspension of the execution of six months of imprisonment with prison labor at the Seoul Central District Court on the grounds of a violation of the Road Traffic Act (LA) and is engaged in driving of Cirst motor vehicles.
On June 7, 2008, the Defendant driven the said car under the influence of 0.243% alcohol level without obtaining a driver’s license at around 16:20 on June 7, 2008, and started the 148 parking lot located in Dobong-gu, Seoul Special Metropolitan City and went through the road located in the said apartment complex. In such a case, a person engaged in driving of a motor vehicle has a duty of care to properly operate the steering gear and to drive the motor vehicle in good faith.
그럼에도 불구하고 피고인은 이를 게을리 한 채 술에 취하여 조향장치를 제대로 조작하지 못한 잘못으로 그곳 우측에 주차되어 있는 타인 소유의 124㏄ 오토바이 뒷부분을 위 승용차 앞부분으로 들이받아 오토바이가 넘어지면서 마침 그곳을 지나가던 피해자 D(47세)의 왼쪽 팔에 부딪히게 하였다.
Ultimately, the Defendant driven the said car in a state where it is difficult to drive the car normally due to the influence of drinking, and the Defendant suffered approximately two weeks of medical treatment to the victim, such as the right-hand water bed.
1. Defendant's legal statement;
1. Each prosecutor's protocol of examination of the accused;
1. Each police statement of the E, D, and F;
1. Each statement of E and D;
1. A traffic accident report;
1. Report on detection of a host driver and report on the circumstances of a host driver;
1. A medical certificate;
1. Registers of driver's licenses;
1. Each photograph;
1. Previous convictions: Criminal records;
1. Article applicable to criminal facts;
Article 5-11 (Aggravated Punishment, etc. of Specific Crimes) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 150 subparagraph 1 of Article 150, Article 44 (1) of the Road Traffic Act (the point of a sound driving), Article 152 subparagraph 1, Article 152 subparagraph 1, and Article 43
1. Commercial competition;
Articles 40 and 50 of the Criminal Act (the crimes of violation of the Road Traffic Act, the crimes of violation of the Road Traffic Act, the crimes of violation of the Road Traffic Act, and the punishment prescribed for the crimes of violation of the Road Traffic Act with heavier punishment)
1. Selection of punishment;
Each Imprisonment Selection
1. Aggravation for concurrent crimes;
Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act [limited to the sum of the long-term punishments of the above two crimes] and Article 38 (1) 2 and Article 50 of the Criminal Act
1. Inclusion of days of detention in detention;
Article 57 of the Criminal Act
In light of the fact that the Defendant, at the Seoul Central District Court on January 18, 2008, was sentenced to a suspended sentence of six months due to a violation of the Road Traffic Act due to drinking and unlicensed driving, not only six times of imprisonment and six times of the same criminal records, and that the blood alcohol concentration level at the time of the pertinent drunk driving was in a state of drinking 0.243% and eventually caused the above accident, it is inevitable to sentence the Defendant: Provided, That even though the driving distance is short and the circumstances that should be taken into account, the sentence of the lower court shall be partially mitigated and the sentence shall be determined as per the order.
The summary of the charge of violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents is as follows: “The Defendant started operating a rocketing car around 16:20 on June 7, 2008 and started the 148 parking lot located in Dobong-gu, Seoul Special Metropolitan City and proceeded along the road located in the apartment complex. In such a case, the driver of the motor vehicle has a duty of care to properly operate the steering gear and operate the steering gear in good faith, but the Defendant has a duty of care to properly operate the steering gear, due to the negligence that the Defendant failed to properly operate the steering gear, and caused the Defendant to suffer from the right-hand care of the victim D(the age of 47).
However, as seen earlier, this part of the facts charged does not constitute a separate crime by absorbing the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death and Injury resulting from Dangerous Driving) and thus, it should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of a crime of violating the Act on the Aggravated Punishment
Judges Choi Jong-dae (Presiding Judge)