특정범죄가중처벌등에관한법률위반(위험운전치상)등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 10 million.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. misunderstanding of facts: The Defendant did not have a difficult condition to drive normally due to influence of drinking at the time of the instant traffic accident.
B. Unreasonable sentencing: The sentence of the lower court (one year of imprisonment with labor for six months and one year of suspended execution) is too unreasonable.
2. Judgment on the defendant's assertion of mistake of facts
A. The term "driving a motor vehicle in a state where normal driving is difficult due to influence of alcohol" means a case in which a driver is unable to fulfill his/her duty of care required for driving under the Road Traffic Act because he/she has the ability to drive the motor vehicle actually due to influence of alcohol, decrease in his/her ability to drive the motor vehicle, or prevents him/her from complying with the operation methods, etc. of the mechanical devices, such as steering gear and brakes essential for driving the motor vehicle, etc. Therefore, its concept is unclear. Since the influence of alcohol differs depending on a person, whether the motor vehicle falls under "the state where normal driving is difficult" shall be determined by taking into consideration not only the level of driver's taking in relation to specific traffic accidents, but also whether the motor vehicle can be driven immediately, such as alcohol smell, whether the driver can walk immediately, the situation of the traffic accident such as before and after the traffic accident, the background leading up to the occurrence of the traffic accident, the degree that the ability to exercise caution, reaction speed, and exercise ability to operate the motor vehicle, and whether it properly adjusted the operation of the motor vehicle.
Constitutional Court en banc Decision 2008Hun-Ga11 Decided May 28, 2009
The following circumstances acknowledged by the evidence duly examined by the lower court and the lower court, namely, ① the Defendant was under the influence of alcohol content of 0.09% at the time of the instant traffic accident; ② The Defendant’s circumstantial report (Evidence No. 17 pages) prepared by the police officer K sent to the site was made by finding out most of the speech and behavior conditions at the time, but the walking condition was tension.