2. Determination

A. Article 2 subparagraph 26 of the Road Traffic Act provides that the term "driving" means the use of a vehicle on the road in accordance with its original use. The concept of "driving" refers to the use of the vehicle on the road according to its original use. Since the concept of "driving" includes the objective elements in light of the contents of the provision, it means only intentional driving, and it does not constitute driving in the case of driving a motor vehicle without any intention or involvement

Therefore, without any intention to allow any person to drive a motor vehicle, he/she walked the starting of the motor vehicle's engine for other purposes, and the motor vehicle is not operated in the case where he/she gets to drive a motor vehicle or gets to drive a motor vehicle due to the driving force of the motor, such as the defrising machine, etc., based on the driving force of the motor vehicle, or due to the unsound parking condition or road conditions.

(See Supreme Court Decision 2004Do1109 delivered on April 23, 2004). B.

The evidence of this case reveals the following facts.

(1) The instant vehicle is a D-owned vehicle operated by D with the Defendant, a person driving a drinking together with the Defendant.

(2) On June 15, 2012, the Defendant and D et al. were to drink the alcohol from the Bupyeongcheon to the Yeonsu-gu Incheon trainingdong after drinking the alcohol. The said vehicle was driven by a substitute driver and moved to the vicinity of the Yeonsu-gu Incheon trainingdong Hospital located in the place where the instant case occurred.

(3) Around 03:00 on June 15, 2012, Defendant D moved to the said vehicle with the intent to move the Defendant to the said vehicle and became an engineer for vicarious driving.

(4) While waiting for a substitute driver, D will be the chief commissioner next to the driver's seat.