[교통사고처리특례법위반·도로교통법위반][공2001.6.1.(131),1173]
Whether a driver of a student license constitutes a crime of driving without a license in cases where a person who has obtained a student license drives a vehicle by making a code of practice (negative)
Article 68-2 (2) of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199) provides that "the types of automobiles for which a person who has obtained a student license may drive and other necessary matters shall be determined by the Ordinance of the Ministry of Home Affairs." Article 26-2 of the former Enforcement Rule of the Road Traffic Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 31 of Jan. 5, 199) provides that the matters to be observed at the time when a person who has obtained a student license conducts driving on the road shall be observed at the time when he/she conducts driving practice on the road, along with a person for whom two years have passed since he/she obtained a driver's license under subparagraph 1. Thus, even if a person who has obtained a student license did not comply with the above matters to be observed on the road, he/she shall not be deemed to be a non-driving without a license.
Article 68-2 (2) of the former Road Traffic Act (amended by Act No. 5712 of January 29, 199), Article 26-2 subparagraph 1 of the former Enforcement Rule of the Road Traffic Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 31 of January 5, 199)
Defendant
Defendant
Attorney Min Han-han
High Court Decision 2000No301 Decided September 19, 2000
The judgment below is reversed, and the case is remanded to the High Court for Armed Forces.
The grounds of appeal by a state appointed defense counsel are examined.
1. On the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents
Examining the reasoning of the judgment below in comparison with records, the judgment of the court below which judged that the defendant violated the Act on Special Cases concerning the Settlement of Traffic Accidents in this case and found the defendant guilty of violating the Act on Special Cases concerning the Settlement of Traffic Accidents in this case is just, and there is no error in the rules of evidence as
2. As to the violation of the Road Traffic Act by driving without a license
Article 68-2 (2) of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199) provides that "the types of automobiles for which a person who has obtained a student license may drive and other necessary matters shall be determined by the Ordinance of the Ministry of Home Affairs." Article 26-2 of the former Enforcement Rule of the Road Traffic Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 31 of Jan. 5, 199) provides that the matters to be observed at the time when a person who has obtained a student license conducts driving on the road shall be observed at the time when he/she conducts driving practice on the road, along with a person for whom two years have passed since he/she obtained a driver's license under subparagraph 1. Thus, even if a person who has obtained a student license did not comply with the above matters to be observed on the road, he/she shall not be deemed to be a non-driving without a license, regardless of whether he/she failed to comply with
Therefore, the court below's decision that the defendant who obtained Class 2 student licenses constitutes driving without a license in violation of the above conditions and found him guilty of the facts charged is erroneous in the misapprehension of legal principles as to student licenses and driving without a license. Therefore, the argument that points this out is justified.
3. Therefore, the part of the judgment of the court below as to the violation of the Road Traffic Act due to the unlicensed driving is not reversed, and the appeal as to the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents is without merit. However, since the court below found each of these crimes guilty and rendered a single sentence on the ground that they constitute concurrent crimes under the former part of Article 37 of the Criminal Act, it is reversed in its entirety, and remanded the case to the court below. It
Justices Lee Han-gu (Presiding Justice)