[1] Requirements to regard the guidance for measurement by physical facilities as the demand for measuring the load amount under Article 54(2) of the Road Act

[2] The case holding that it is difficult to view that there was a specific and realistic demand for the measurement of the load load against the driver of the freight vehicle merely because the phrase "entry to the right side of the freight vehicle" was stipulated in the electronic display board installed at a point of 200 meters prior to the inspection station

[1] In addition to the case where a controlling public official directly demands a measurement of loading quantity, and in the case where the management agency provides guidance for measurement by facilities installed on the road, if it can be deemed that there was a specific and realistic request for a measurement of loading quantity under Article 54 (2) of the Road Act to the extent corresponding to a direct measurement request by a public official in charge, it may be deemed that there was a request for a measurement of loading quantity. However, in order to regard the guidance for measurement by physical facilities as a specific and practical request for a measurement to the extent that it can be seen as a request for a direct measurement by a public official in charge, it should be the premise that the driver of the vehicle traveling along the road can clearly know that the guidance for measurement is made with the necessity to preserve the road structure and prevent the danger of operation. The fact that such a request for measurement was made by a public official is an important part constituting a criminal fact and requires strict proof to recognize it.

[2] The case holding that it is difficult to view that there was a specific and realistic demand for the measurement of the load load against the driver of the freight vehicle merely because the phrase "entry to the right side of the freight vehicle" was stipulated in the electronic display board installed at a point of 200 meters prior to the inspection station

[1] Article 54 (2) of the Road Act / [2] Articles 54 (2) and 83 (1) 3 of the Road Act

Defendant 1 and one other

Defendants

Gwangju District Court Decision 2004No1040 Decided October 13, 2004

The judgment of the court below is reversed, and the case is remanded to Gwangju District Court Panel Division.

1. Summary of the facts charged

The summary of the facts charged of this case is as follows: Defendant 1 loaded cement on the freight vehicle (vehicle registration number omitted) around 04:49 on October 7, 2003 (hereinafter “the instant vehicle”); Defendant 1, an employee of Defendant 2, in relation to his duties, failed to comply with the road management authority’s demand for the measurement of the load on the 17-line national highways located in the city of Jeoncheon-gu, the National Highway of the 17th National Road located in the Jeoncheon-gu, Seocheon-si without justifiable grounds; and Defendant 1, an employee of Defendant 2, in relation to his duties.

2. The measure of the court below

1. The court below found Defendant 1 to 40 meters away from the above written inspection, and found Defendant 2 to have been found guilty of using the above 4-meter high-speed storage meters off the surface of the road at least 350 meters prior to the inspection, and found Defendant 1 to have been found guilty of using the above 4-meter high-speed storage meters off the surface of the vehicle that was installed for inspection by the above 3-meter high-speed storage meters prior to the inspection, and that Defendant 2 used the above 4-meter high-speed storage equipment installed for inspection by the above 3-meter high-speed storage equipment for the purpose of controlling the above 4-meter high-speed storage equipment, and that Defendant 1 used the above 4-meter high-speed storage equipment for inspection by the above 4-meter high-speed storage equipment for the purpose of controlling the 4-meter high-speed storage equipment for the vehicle that was installed for inspection by the above 4-meter high-speed inspection, despite the fact that the 1-meter high-speed storage equipment was installed for inspection.

3. Judgment of the Supreme Court

In addition to the case where a controlling public official directly demands the measurement of loading quantity, and in the case where the management agency gives guidance for measurement by facilities installed on the road, if it can be deemed that there was a specific and realistic request for measurement of loading quantity to the driver of a specified vehicle to the extent corresponding to the request for direct measurement by the public official in charge, it may be deemed that there was a request for measurement of loading quantity under Article 54 (2) of the Road Act.

However, in order to view the measurement guidance by physical facilities as a specific and realistic measurement request to the extent that it directly measured by the public official in charge, it should be the premise that the measurement guidance is made with respect to the vehicle in question according to the need to preserve the structure of the road and prevent the danger of operation, and the driver of the freight vehicle passing along the road could clearly know the fact that the measurement guidance is made with respect to the vehicle in question. The fact that such a measurement request was made is an important part constituting the crime and requires strict proof to recognize it.

In this case, since there is an excessive vehicle inspection station on the side of the road, all cargo vehicles may be deemed to have a specific and realistic measurement request beyond an ordinary guide by setting up a sign to enter the inspection station, and as recognized by the court below, it shall be deemed that the high speed axis installed at a point of 350m from the front line of the inspection station to the right side of the cargo vehicle installed on the road of 200m in the front line, etc., as determined by the court below, "entry the right side of the cargo vehicle" in the electronic display board installed on the right side of the road at a point of 200m in the front line, etc.

First, according to the records, as to whether the driver could be recognized as a specific and practical measurement request for his own vehicle, it is difficult to view that the driver, etc., such as the defendant, etc., was required to comply with the measurement of the relevant vehicle because the promotional materials sent by each transport company or the warning note sent by the road management agency to each transport company is merely the fact that the vehicle refusing to measure was controlled by using an unmanned camera or the fact that it was discovered in such control, and it is not clear that the driver, etc., on the electric sign board, if it was discovered that the vehicle's point of the electric sign board, etc. is required to comply with the measurement. Even if the driver could have known of the operation principle of the above electric sign board, the road on which the above electric sign board was installed is a second line national road of the second line where the passage of the cargo vehicle is frequent, and the two cargo vehicles passed simultaneously with the passage of the cargo vehicle, and it is not clear whether the two cargo vehicle was measured by the right side of the vehicle without the front and rear distance. Therefore, it cannot be viewed that the driver's demand to enter the relevant cargo.

Furthermore, the evidence submitted by the prosecutor is that all of the instant vehicles passed through the inspection station without entering the inspection station, but the weight exceeded by the axis installed on the floor of the inspection station, and there is no objective material to induce entry of the instant vehicle as measured because the weight exceeded by the axis installed on the front line of 350 meters prior to the inspection station, and there is no objective material to induce entry of the instant vehicle as measured. If an electronic sign board under the operating principle was operated with respect to the instant vehicle at the same time, if the emergency bell was displayed at the inspection station and the emergency bell was displayed at the inspection station, it should have been led by the control staff to enter the said vehicle as measured. In light of the first instance court’s evidence that the CCTV, the head of the inspection station, as the head of the above written inspection station, did not have any other evidence that the instant vehicle could have been saved by the inspection team, and thus, it cannot be found that there was a lack of any other evidence to prove that the instant vehicle was operated by the inspection officer at the time of the inspection.

Therefore, the judgment of the court below that recognized that Defendant 1 violated Article 54 (2) of the Road Act by refusing to comply with the request for measurement without any justifiable reason on the ground that a specific and realistic demand for measurement of the loading quantity was made to Kim Jin who driven the instant vehicle, is erroneous in the misapprehension of legal principles as to failure to conduct the deliberation or erroneous recognition of facts in violation of the rules of evidence, which affected the conclusion of the judgment. Therefore, the ground of

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)