2014No202 Automobile Burials (a recognized crime, occupational motor vehicle burial,

Occupational Death and Death, Violation of the Road Traffic Act (Driving)

A

Defendant and Prosecutor

Kim Jong-tae (Lawsuit) and Mask-gu (Trial)

Law Firm AK

Attorney AL, AM, andN

Gwangju District Court Decision 2014Gohap58 Decided May 22, 2014

November 27, 2014

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

However, the execution of the above sentence shall be suspended for 5 years from the date this judgment becomes final and conclusive. The defendant shall be subject to probation and shall be ordered to provide community service for 200 hours.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) As to the death or injury of a motor vehicle buried in the instant facts charged, the Defendant did not have any awareness of the possibility of burying the motor vehicle driven at the time into the sea, and there was no 'unrush intention', i.e., the intention to see such risk, and just carried the interest victim into the sea in order to escape the interest victim.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged on the premise that the above intentional act was committed, is erroneous in the misapprehension of legal principles as to willful negligence, which affected the conclusion of the

B) As to the violation of the Road Traffic Act among the facts charged in the instant case, the lower court recognized that the blood alcohol concentration at the time when the Defendant singing the blood alcohol concentration of the Defendant measured ex post was 0.114% at the time of the Defendant’s drinking and driving alcohol, but this is premised on the Defendant’s blood alcohol concentration at the lower level. However, considering the Defendant’s blood alcohol concentration at the time of driving, when the Defendant measured the blood alcohol concentration at the time of drinking and drinking alcohol level to the Defendant, it shall be deemed that the Defendant’s blood alcohol concentration at the time of driving was in the rise country rather than the lower level, and thus, it cannot be deemed that the blood alcohol concentration at the time of the Defendant’s driving exceeded 0.1% of the blood alcohol concentration as stipulated in Article 148-2(2)2 of the Road Traffic Act.

Therefore, the judgment of the court below convicting this part of the facts charged is erroneous in the misapprehension of legal principles as to the application of the Badmark formula, which affected the conclusion of judgment.

2) Unreasonable sentencing

The punishment of the court below (three years of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is unfair because it is too unhued.

2. Determination

A. As to whether the defendant had the intention to bury the motor vehicle

1) Summary of this part of the facts charged

On March 6, 2014, at around 17:30, the Defendant: (a) performed drinking together with the Defendant G (47 years) who was the wife in the F cafeteria E at the time of drinking on March 6, 2014; (b) claimed the Defendant to stop the wind and divorce; and (c) subsequently, the Defendant used the said cafeteria at around 20:07 to drive the said cafeteria, HMW X54-dong car (hereinafter referred to as the “instant vehicle”), thereby driving the said cafeteria at around 20:14, it was difficult for the Defendant to get off the said vehicle at the head of the said 1st apartment bus stop; (d) after driving the said vehicle, the Defendant changed the vehicle to the entrance of the string of the said vehicle; (e) moving the vehicle to the 20:00 square meters away from the park, making it difficult for the Defendant to drive the vehicle to the direction of the 2:20:0 on the road, making it difficult for the Defendant to drive the vehicle.

At around 20:21, the Defendant: (a) entered a park more than another part of the road boundary (the height is about 23 cm); (b) moved the said vehicle back to the public toilet located in the echeon-friendly Park; and (c) demanded the victim to fasten the safety belt, and (d) demanded that the victim fasten the safety belt as soon as possible; (b) however, the victim: (a) unnecessary; (a) cut off the vehicle; (a) after the victim’s statement that it would be “A.I.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T., I.T.T.T.D..

2) Determination

A) The judgment of the court below

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, the lower court determined that the Defendant had an intentional intent to bury the horse.

① The Defendant, from around 12 seconds (20:18:42 to around 20:18:544, when a motor vehicle starts from a toilet side dry field hole in erocheon-do, and put about about 42.6m ( approximately 9m in the gravel dry field hole + approximately 12.6m in the wooden stairs and the wooden slope surface + approximately 21m in the sand slope) to the sea water in the direction of 12 seconds (from around 20:18:42, when the motor vehicle starts from the said gravel, from around 20:18 to 20:54m in the front glass of the motor vehicle), did not reduce the speed of the motor vehicle during that process.

② The witness presented to the effect that the 30m range from the coastline at the time of the instant crime is about 30m range from the coastline at the time of the instant crime. (The 30m range from the coastline at the time of the instant crime is about 3m.

③ In the above gravel dry field factory, the Defendant start a vehicle to listen to the victim’s phrase “A.I.D., it is unnecessary to do so. I. Ga. I. Ga. Ba. Ga.” and called “I. Ma. Ma. Ma. Ma. Ma. Ma. Ma.” The Defendant, as in the instant case, was able to sufficiently anticipate if the general public that the lower part of the vehicle might be sunken into the sea by cutting off the bottom of the vehicle to the extent that it does not adjoin the floor due to the speed of the vehicle, as in the instant case, to the extent that it does not fit the floor due to the influence of tidal currents, etc.

B) Determination of the immediate deliberation

The subjective element of the constituent element of a crime refers to the case where the possibility of occurrence of a crime is uncertain and it is permissible in light of the perception of the possibility of occurrence of a crime in order to have dolusence. Furthermore, there is an intent to deliberate on the possibility of occurrence of a crime in order to allow the risk of occurrence of a crime. Whether or not an offender has permitted the possibility of occurrence of a crime must be determined by considering how the possibility of occurrence of a crime is assessed by the general public on the basis of the specific circumstances, such as the form of an act and the situation of an act performed outside, without depending on the statement of the offender. In such a case, the psychological state of the offender must be confirmed. The burden of proving the existence of dolusence, which is the subjective element of the crime prosecuted, is the prosecutor. On the other hand, the acknowledgement of guilt must be based on evidence with probative value, which makes a judge not more than a reasonable doubt, and if there is no such evidence, even if there is no doubt as to the defendant's profit (see, e.g., Supreme Court Decision 2004Do474).

In light of the aforementioned legal principles, the lower court’s judgment convicting the Defendant of this part of the facts charged, as long as it cannot be deemed that there was an intentional intent to bury the instant vehicle, even if considering the circumstances revealed by the lower court in light of the aforementioned legal principles, and thus, it erred by misapprehending the legal doctrine on willful negligence, thereby adversely affecting the conclusion of the judgment.

(1) The ero-friendly park is merely about 1.5 meters in the depth of the sea at the end of the sea at the end of the sea artificially created sea, and thus, the depth of the sea is lower than that of other seas. The Defendant was aware of the fact that the Defendant, who visited the ero-friendly park, was under the experience of visiting the ero-friendly park, was under the influence of the above sea.

(2) At the time of the police investigation, I first observed the instant case and reported it. At the point of 20 meters prior to the public toilets located on the sea of the instant case, I stated, “at the point of 30 meters prior to the instant case, I saw the wooden stairs coming out of the public toilets following the Gap self public toilets into the sea only after the sprinking out between the sprinkes and the white president. In addition, at the sea level, I saw the car 30 meters up to 30 meters away from the sea (No. 2 book No. 1 of the evidence record No. 57), but the said statement was another statement on the same day, i.e., at the point of 119 first respond to the slowly, it was difficult to conclude that the Defendant was 10 meters away from the front part of the instant public toilets at the point of 10 meters prior to the arrival of the said 10th day and 20th day of the instant vehicle in light of the circumstances that the Defendant was 10th day and 20th day of the instant vehicle.

(3) The Defendant’s burial of an automobile into the sea means that he permits the possibility that the Defendant would lose his life on his own. However, there was a dispute between the Defendant and the victim suffering from depression due to the conflict with the victim suspected of business depression and the Defendant’s external appearance, and the immediately preceding restaurant of this case, while drinking together with the victim, the Defendant and the victim did not cause a conflict as much as they had been frightened for marriage for about 22 years and 6 months. On the following day of this case, the Defendant and the victim were going to leave the golf travel with their husband and wife, and there was no particular circumstance to the extent that the Defendant, who had been operating in the course of this case and his children, gave up all of them and made a dynamic choice.

(4) The Defendant, without having the intent to commit suicide, was aware of the victim’s intent to kill the vehicle into the sea and to leave the vehicle from the vehicle to the sea. However, ① The Defendant, without preparing for escape equipment prior to entering the vehicle or the sea, escaped from the vehicle to the door by using golf bonds located in the said vehicle without any intention to commit suicide. The sea temperature at the time of the occurrence of the instant case (three months) is very very high, and even adult South and North Korea, if they are healthy, there may cause low temperature.

In this case, the defendant was able to check the location of the above vehicle by using the Western, and the defendant was placed in the zone so that he can check the location of the above vehicle, and the physical strength became weak after undergoing the procedure for the use of the ornamental beer for about three months. ② The defendant called the victim immediately before entering the sea by driving the vehicle of this case, but he was able to wear several safety bells on the part of the victim before entering the sea, but the woman did not respond to the above, but requested the emergency medical services worker to wear the safety bell. After the salvage, the defendant was also able to request the victim's rescue. ③ Even if the defendant was in the family conference prior to the instant case, it was difficult to view the victim's child's birth and burial on the day of the instant case as well as the defendant's mother's punishment for the victim's birth and burial on the day of his birth.

Therefore, this part of the defendant's argument is justified.

B. As to whether the Defendant’s blood alcohol concentration was in the lower mouth at the time of the instant case

1) Relevant legal principles

In general, when it is difficult to determine whether the blood alcohol concentration at the time of driving is the rise of blood alcohol concentration or lower time, even if the blood alcohol concentration measured at the time when the driving was completed at a considerable time from the time when the driving was completed, it cannot be readily concluded that the blood alcohol concentration at the time of actual driving exceeded the penal threshold. Although there is a difference for each individual, it is difficult to determine that the blood alcohol concentration at the time of actual driving exceeded the penal threshold. Although the blood alcohol concentration between 30 minutes and 90 minutes after drinking, it is generally known that the blood alcohol concentration between 30 minutes and 0.08% per hour after drinking, and about 0.03% per hour (average 0.015%) reduced. If the driving was completed, there is a possibility that the blood alcohol concentration at the time of driving would be more improved than the blood alcohol concentration at the time of actual measurement (see, e.g., Supreme Court Decision 201Do2820, Apr. 1, 2012).

2) Determination

The following facts acknowledged by the lower court and the court’s duly adopted and examined the case. ① the Defendant entered the instant restaurant around March 6, 2014, 17:27: (a) around 14 minutes after the victim 14 minutes thereafter; (b) the Defendant and the victim divided 4 soldiers into the instant restaurant while drinking together; (c) the Defendant used the said restaurant at around 2 hours and 36 minutes after the victim’s entry into the restaurant (2 hours and 22 minutes if calculated by the victim’s entry into the restaurant); (d) the Defendant’s respiratory density at around 20:00, 16 minutes after driving the instant vehicle from 20:07, to 203 minutes thereafter; and (e) the Defendant’s respiratory density at the time when the Defendant driven the instant vehicle at around 20:20% after driving the vehicle at around 16 minutes thereafter; and (e) the Defendant’s respiratory density at 20% after driving the vehicle at the time of the foregoing public alcohol level at around 20:20% of alcohol.

A) On December 20, 2013, the Defendant: (a) heard the horses from a doctor in charge that he/she performed an ornamental beering surgery; (b) sees the horses that he/she drinks alcohol; and (c) dumping the horses with a very small amount of alcohol compared to the above surgery, the Defendant dumped him/her into drinking alcohol; and (d) dumped him/her with a physical form that he/she had already taken part in the instant restaurant, along with the victim, he/she stated that he/she had already taken part in the bump. out of the

B) In the instant restaurant, the Defendant, while drinking together with the victim and drinking together with his female, was trying to damage the mobile phone of the victim while drinking together with the victim, and she was trying to return home to the instant restaurant and getting on and off the instant vehicle at the restaurant, and was trying to enter the roadway on the ground that she again went on with the victim for the reason that she did not have any other dispute with the victim, and again, did not specifically state the situation where she was in the instant restaurant at the time when she was investigated by the investigative agency on the condition that she was in the instant restaurant and was in operation, etc. of the instant vehicle.

C) The time when the defendant was in the above restaurant is 2 hours and 22 minutes (14 minutes) even if the time when the victim entered the restaurant in favor of the defendant is calculated from the time when the victim entered the restaurant, and 18:52 minutes from the time when the victim entered the restaurant and from the middle time of the time when the defendant got in the restaurant to 20:23, when the defendant finished driving the restaurant, 91 minutes, which is the highest time between the time when the blood alcohol concentration reaches the highest value, taking into account the individual vehicle. Accordingly, this part of the defendant's assertion is without merit.

3. Conclusion

Of the facts charged in this case, the appeal by the defendant on the ground of mistake of facts or misapprehension of legal principles as to the death of car burial, and further, the charge of violation of the Road Traffic Act, which is the remaining facts charged, is concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below cannot be reversed in its entirety.

Therefore, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act without examining the grounds for unfair sentencing by the defendant and the prosecutor, and the following decision is rendered.

Criminal facts

1. Burial of vehicles by occupational negligence, occupational death, etc. 2);

The Defendant is a person engaging in driving a vehicle with HMW X5 4 wheels.

On March 6, 2014, the Defendant: Around 17:30, at the 20th anniversary of the death of the victim, she saw drinking with G (the 47 years of age) at a F cafeteria; the victim increased the wind; the Defendant demanded a separate stop and divorce; the victim throw away from the above cafeteria; the victim her vehicle at around 20:07, while driving the said vehicle at around 20:14, it was difficult for the Defendant to remove the vehicle at the 2nd place to remove the vehicle on his/her own; the Defendant was at the seat of the above 2nd stop of the 2nd stop of the 2nd stop of the 1st stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the 2nd stop of the vehicle.

2. Violation of the Road Traffic Act;

On March 6, 2014, from around 20:07 to 20:23, the Defendant driven a HBW car at a section of approximately 1.2 km from the F cafeteria parking lot located in E at the time of drinking water to the ethro-friendly park front of the river site in the state of drinking alcohol concentration of 0.114%.

Summary of Evidence

The summary of the evidence recognized by this court is as follows: (a) except for the addition of "1. the defendant's current trial statement, 1. witness AO, and AP's current trial statement" to the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act

Application of Statutes

1. Article applicable to criminal facts;

Articles 189(2) and 187 of the Criminal Act (the point of the burial of cars by occupational negligence), Article 268 of the Criminal Act (the point of the death by occupational negligence), Article 148-2(2)2 of the Road Traffic Act and Article 44(1) of the Road Traffic Act (the point of the sound driving)

Articles 40 and 50 of the Criminal Act (the crime of the burial of a motor vehicle by occupational negligence and the crime of the death by occupational negligence, punishment provided for the crime of the death by occupational negligence with heavier punishment)

1. Selection of punishment;

Imprisonment without prison labor for the crime of occupational death, and imprisonment for the crime of violation of the Road Traffic Act.

1. Aggravation for concurrent crimes;

The former part of Article 37, Articles 38(1)2 and 38(2) and 50 of the Criminal Act (the punishment shall be heavier than the penalty provided for in the crime of occupational negligence resulting in death resulting in death resulting in death resulting in death resulting in death resulting in death resulting

1. Suspension of execution;

Article 62(1) of the Criminal Act (General Conditions Considered in the Reasons for Sentencing below)

1. Probation and community service order;

Article 62-2 of the Criminal Act

Since the Defendant’s reason for sentencing led to the death of the victim by driving a motor vehicle on the ground that the Defendant was fluoring the interestd victim and leading the victim to the death by the negligence of entering the sea, the degree of negligence is excessive, and the victim eventually left the life, which is the most valuable value. Accordingly, the victim’s children were suffering from serious mental shock and pain due to the loss of mother’s mother. This is the unfavorable circumstance to the Defendant.

However, the defendant's mistake and reflects, and the defendant committed the crime of this case somewhat contingent and has not been punished for the same kind of crime in the past, and the victim's children and family members and relative family members wish to take the defendant's wife up to the trial. The defendant was detained for more than eight months, and the defendant was detained for more than 22 years and 6 months due to his mistake. Considering the favorable circumstances, the defendant's age, character and behavior, environment, family relationship, motive and consequence of the crime, and circumstances after the crime are considered, it is ordered as ordered as per Disposition, taking into account various circumstances shown in the arguments of this case, such as the defendant's age, character, family relationship, motive and consequence of the crime, etc.

The acquittal portion

The summary of this part of the facts charged is as stated in Article 2-2(b)(1) and Article 2-2(b)(2) of the Criminal Procedure Act. Thus, the above facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as it is found guilty of the crime of burying a motor vehicle by occupational negligence, the crime of burying a motor vehicle by occupational negligence, and the crime of resulting in death

The presiding judge, judge and deputy judge;

Judges Ginsung defect

Judge Park Jong-soo

1) The depth of 11m from the coastline at the time of committing the instant crime is 1.5m, and the degree of 1/3 of the distance stated by the witness at the time of committing the instant crime is 1/5m.

Even if she entered the port, she will come up to the depth where she may almost locked, and her motor vehicle to some extent.

It is a four-wheeled vehicle that can grow up in the future even if water is locked.

2) The prosecutor added at the trial to the ancillary charge.