Defendant

Defendant

Maternity leaves

Attorney Choi Ho-ho et al.

Changwon District Court Decision 2003Ma367 delivered on June 23, 2004

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

One day of detention before the pronouncement of the judgment below shall be included in the above sentence.

1. Summary of grounds for appeal;

The summary of the grounds for appeal by the defendant is as follows: ① although the defendant committed an overtaking at the time and place specified in the facts charged, the defendant’s gallon vehicle was not sufficient for the gallon vehicle of the non-indicted 1 in the process, and there was no contribution to the result of the death of the victim non-indicted 2 and the injury of the victim non-indicted 3 and the injury of the victim non-indicted 3 in the judgment, the court below found the defendant guilty of the facts charged, which affected the conclusion of the judgment, and the judgment of the court below is erroneous because there was an error of law by misunderstanding the facts, and ② even if the defendant was found guilty, the sentence of the court below (two

2. Determination on the grounds for appeal

A. As to the Defendant’s assertion of mistake of facts, the Defendant alleged that there was no shockion between Nonindicted 1’s vehicle and Nonindicted 1, and that Nonindicted 4’s statement and Nonindicted 4’s statement in the traffic accident appraisal statement prepared by Nonindicted 4 are mainly in place.

The contents of the above evidence are as follows: ① When the road conditions at the time of the accident by the statement of Nonindicted Party 1, the location and speed of both vehicles, etc. are reconstructed, there is no possibility that the Defendant’s vehicle and Nonindicted Party 1’s vehicle might shock; ② If the shock tracess in the vehicle of Nonindicted Party 1 and the vehicle of Nonindicted Party 1 were caused in the shock of two vehicles, the two vehicles should face less than 5 degrees, and there was a second shock, but there was no such second shock, and if the shock is based on the shocks in the front part of the vehicle of Nonindicted Party 1, it is not consistent with the situation at the time of the accident, and in particular, it cannot be readily concluded that these materials were generated from the Defendant’s vehicle of this case.

However, with respect to ① the point in which the Defendant started to overtake, there is a difference to some extent since Nonindicted 1 did not make a statement on the spot, and according to Nonindicted 5’s statement, it is difficult to believe that Nonindicted 4’s statement on traffic accident assessment statement that there was a difference between the two vehicles at the time of the accident, since the Defendant’s vehicle was overtaken and returned to the original vehicle, the above two vehicles were adjacent at the time of his return to the original vehicle, and thus, it is difficult to believe that there was a difference between the two vehicles at the time of the accident, and ② Nonindicted 4’s statement on the traffic accident assessment statement of Nonindicted 4 or Nonindicted 4’s legal statement on

Rather, according to the evidence duly admitted by the court below, the expert witness belonging to the National Institute of Scientific and Investigative Research, including each appraisal and inquiry report of the other parts of the case, each written expert witness and inquiry report of the court below, each legal statement of Nonindicted 5 and Nonindicted 6, the witness Nonindicted 7, and the witness’s legal statement of the court below, and the evidence duly admitted by the court below, the remaining parts of the National Institute of Scientific and Investigative Research, collected and analyzed samples from Nonindicted 1’s driver, and the sample collected from Nonindicted 1’s driver, found the same substance as the Defendant’s driver’s driver’s, the last stop point of Nonindicted 1 was the right side of the accident road; the Defendant’s vehicle was close to Nonindicted 1’s vehicle in the process of discovering the central line of the accident and returning to the opposite lane, and the result of Nonindicted 1’s death and the victim’s injury on the right side of the vehicle was found to have been caused by the Defendant’s death and the victim’s injury on each road.

B. In addition, in full view of the evidence duly admitted by the court below, Non-Indicted 1’s statement in the case of the defendant’s trial court, it appears that Non-Indicted 1’s vehicle was prone due to shock at the time of the accident, and the shock was damaged by Non-Indicted 1’s vehicle. Thus, Non-Indicted 5, who has proceeded with the opposite lane, was aware of the traffic accident and immediately stopped and took measures to rescue the victim. After the accident, the non-Indicted 5, who was asked that the driver of the number-to-face color van was forced to drive his vehicle and did not cause the accident to the defendant, the defendant did not have such fact, and the defendant proceeded with it. The defendant started with the accident scene around 04:50 on the date of the accident, and it was urgent for the victim to arrive at the construction site at the accident site at the time of the accident, and even after considering these circumstances, the defendant did not return the vehicle to the middle of the disaster, but did not return to the middle of the disaster.

C. Therefore, the defendant's assertion of mistake is without merit.

3. Ex officio determination

Before determining the Defendant’s assertion of unfair sentencing, in this case, where the prosecutor indicted the Defendant with the applicable provisions of Articles 5-3(1)2 and 268 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 268 of the Criminal Act against the Defendant, the lower court sentenced the Defendant to a punishment by applying Articles 5-3(1)1 and 268 of the Act on the Aggravated Punishment, etc. of Specific Crimes, of which the statutory penalty is more severe, and there is an error of law in violation of the principle of indeterminate objection and in violation of the application of the law, which affected the conclusion of the judgment. In this regard,

4. Conclusion

Therefore, the judgment of the court below is reversed ex officio in accordance with Article 364(2) of the Criminal Procedure Act, and the following judgment is rendered after pleading.

Since the criminal facts and the summary of the evidence against the defendant recognized by this court are as stated in the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 5-3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 268 of the Criminal Act, Articles 106 and 50 (1) of the Road Traffic Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishment of Non-Indicted 2 as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Non-Indicted 2 in the Judgment with a heavier punishment, but choice of imprisonment)

1. The inclusion of detention days before sentencing of the judgment below

Article 57 of the Criminal Act

Judge Cho Chang-hun (Presiding Judge)