[1] Meaning of “the date of entry into the Republic of Korea” under Article 96(1) of the Road Traffic Act (i.e., the date of entry into the Republic of Korea through lawful entry inspection procedures under the Immigration Control Act), and in a case where a person illegally enters the Republic of Korea without undergoing lawful entry inspection but possesses an international driver’s license, whether the person constitutes a case where a person has been driving under an international driver’s license exceptionally

[2] The case holding that in a case where the defendant who is a foreigner was driving a motor vehicle on the road without a driver's license and was indicted as violating the Road Traffic Act (unlicensed driving) and the defendant was driving a motor vehicle within one year after entering the Republic of Korea without a visa issued by the Minister of Justice without undergoing an entry inspection, and was issued an international driver's license in a foreign country before driving the motor vehicle, the defendant's act does not constitute an international driver's license under Article 96 (1) of the Road Traffic Act as long as the defendant

[1] Article 1 of the Road Traffic Act provides that "the purpose of this Act is to ensure safe and smooth flow of traffic by preventing and removing all dangers and obstacles to road traffic," the main sentence of Article 80 (1) of the Road Traffic Act provides that "any person who intends to drive a motor vehicle, etc. shall obtain a driver's license from the commissioner of a district police agency." Article 85 (1) of the Road Traffic Act provides that "any person who intends to obtain a driver's license shall pass a driver's license test." In addition, the Road Traffic Act provides for the qualifications, grounds for disqualification, driver's license test, aptitude test, revocation of a driver's license, etc. for obtaining a driver's license. In addition, Article 96 (1) of the Road Traffic Act provides that a person who has obtained a driver's license (hereinafter referred to as "international driver's license") pursuant to any one of the Convention on Road Traffic concluded at Geneva in 1949 or the Convention on Road Traffic concluded at Vienna in 1968 shall be punished without obtaining an international driver's license (excluding a driver's license).

In full view of the legislative purport and purpose of the Road Traffic Act, the driver’s license system, and the structure and details of the penal provision for non-exclusive driving, etc., the Road Traffic Act permits only those who have obtained a driver’s license in accordance with the procedures prescribed by the Road Traffic Act, such as driver’s license tests, to lawfully drive motor vehicles on the domestic road and, in principle, punish those who have obtained a driver’s license without obtaining such a driver’s license as a matter of principle. However, with respect to those who have obtained an international driver’s license in Geneva in 1949 or the Convention on Road Traffic concluded in Vienna in 1968, it is understood that there is an exception to allowing a driver to drive without obtaining a driver’s license in accordance with the procedures prescribed by the Road Traffic Act for one year from the date of entry into the Republic of Korea without a separate license. As long as a driver’s license has the nature of administrative action, a person who is entitled to obtain a driver’s license pursuant to the main sentence of Article 80(1) of the Road Traffic Act shall be deemed to have the same legal effect as a foreigner’s license.

In addition, if a person who illegally enters the Republic of Korea is interpreted to be able to drive with an international driver's license for one year from the date of entry, there are many cases where it is difficult to rely on the parties' arguments because it is difficult to objectively specify the timing of entry due to the characteristics of smuggling, and thus, there is a risk that a person who illegally enters the Republic of Korea may be more favorable than a person who has lawfully entered the Republic of Korea.

Therefore, “The date of entry into the Republic of Korea” under Article 96(1) of the Road Traffic Act refers to the date of entry into the Republic of Korea through lawful entry inspection procedures under the Immigration Control Act, and in the case of illegal entry without such lawful entry inspection procedures, it cannot be deemed that the case of an international driver’s license under Article 96(1) of the Road Traffic Act constitutes a case where an international driver’s license is held

[2] The case holding that the judgment of the court below which acquitted the defendant of the charges on the ground that, in case where the defendant, who was a foreigner, was driving a motor vehicle on the road without a driver's license, was indicted for violation of the Road Traffic Act (unlicensed driving) and was driving a motor vehicle within one year after entering the Republic of Korea without a visa issued by the Minister of Justice without undergoing an entry inspection, and was issued an international driver's license in accordance with the Convention on Road Traffic concluded at Geneva in 1949 in the Philippines in 1949, insofar as the defendant illegally entered the Republic of Korea without undergoing a normal entry inspection in accordance with the Immigration Control Act, even if he was holding an international driver's license and driving a motor vehicle within one year from the date he entered the Republic of Korea, even if he was driving a motor vehicle without an international driver's license, it is difficult to be deemed as driving with an international driver's license as provided by Article 96 (1) 1 of the Road Traffic Act,

[1] Articles 1, 80(1), 85(1), 96(1), and 152 subparag. 1 of the Road Traffic Act / [2] Articles 80(1), 96(1), and 152 subparag. 1 of the Road Traffic Act

Defendant

Prosecutor

Suwon District Court Decision 2017No1885 decided June 1, 2017

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Article 1 of the Road Traffic Act provides that "the purpose of this Act is to ensure safe and smooth flow of traffic by preventing and removing all dangers and obstacles to road traffic," the main sentence of Article 80 (1) provides that "any person who intends to drive a motor vehicle, etc. shall obtain a driver's license from the commissioner of a district police agency." Article 85 (1) of the Road Traffic Act provides that "any person who intends to obtain a driver's license shall pass the driver's license test." In addition, detailed provisions concerning qualifications, disqualifications, driver's license tests, aptitude tests, revocation of driver's license, etc. for obtaining a driver's license, and Article 96 (1) of the Road Traffic Act provides that any person who has obtained a driver's license (hereinafter referred to as "international driver's license") in accordance with the Convention on Road Traffic concluded at Geneva in 1949 by a foreign competent agency or the Convention on Road Traffic concluded in Vienna in 1968 shall be punished without obtaining an international driver's license (excluding any person who has obtained an international driver's license).

In full view of the legislative purport and purpose of the Road Traffic Act, the driver’s license system, and the regulatory structure and content of the regulations on unlicensed driving, etc., in order to prevent traffic danger and ensure safety, the Road Traffic Act permits only those who obtain a driver’s license pursuant to the procedures prescribed by the Road Traffic Act, such as driver’s license test, to lawfully drive motor vehicles on the domestic road, and punish those who obtain a driver’s license without obtaining such a driver’s license as a matter of principle: Provided, That the same shall apply to those who have obtained an international driver’s license, in respect of the Convention on Road Traffic concluded at Geneva in 1949 or the Convention on Road Traffic concluded at Vienna in 1968, without any separate permission, without obtaining a driver’s license pursuant to the procedures prescribed by the Road Traffic Act. As long as a driver’s license has the nature of administrative act, permission, a person who is entitled to obtain a driver’s license pursuant to the main sentence of Article 80(1) of the Road Traffic Act shall be deemed to have the same legal effect as a foreigner’s license that entered the Republic of Korea.

In addition, if a person who illegally enters the Republic of Korea is interpreted to be able to drive with an international driver's license for one year from the date of entry, there are many cases where it is difficult to rely on the parties' arguments because it is difficult to objectively specify the timing of entry due to the characteristics of smuggling, and thus, there is a risk that a person who illegally enters the Republic of Korea may be more favorable than a person who has lawfully entered the Republic of Korea.

Therefore, “The date of entry into the Republic of Korea” under Article 96(1) of the Road Traffic Act refers to the date of entry into the Republic of Korea through lawful entry inspection procedures under the Immigration Control Act, and in the case of illegal entry without undergoing such lawful entry inspection, it cannot be deemed that the case of holding an international driver’s license constitutes the case of an international driver’s license under Article 96(1) of the Road Traffic Act exceptionally permitted.

2. Of the facts charged in the instant case, the summary of the fact of the violation of the Road Traffic Act (unlicensed Driving) is that the Defendant, without obtaining a driver’s license, driven a car on the Han River, including Suwon-si from December 1, 2016 to January 23, 2017.

In full view of the evidence in its holding, the lower court affirmed the first instance judgment that acquitted the Defendant on the said charges on the ground that: (a) the Defendant entered the Republic of Korea without undergoing an entry inspection without a visa issued by the Minister of Justice on February 1, 2016; and (b) the Defendant obtained an international driver’s license pursuant to the Convention on Road Traffic concluded at Geneva in October 10, 2016 in the Philippines in 1949; and (c) the Defendant’s driving of a motor vehicle as stated in the facts charged within one year from his entry into the Republic of Korea constitutes driving with an international driver’s license pursuant to Article 96(1) of the Road Traffic Act

3. However, examining the facts acknowledged by the lower court in light of the legal doctrine as seen earlier, insofar as the Defendant illegally entered the Republic of Korea without undergoing a normal entry inspection under the Immigration Control Act, even if he/she possesses an international driver’s license and drives a motor vehicle as stated in the facts charged within one year from the date of entry into the Republic of Korea, it is difficult to be deemed as a driver’s license with an international driver’s license exceptionally permitted under Article 96(1) of the Road Traffic Act. Accordingly, it should be deemed as a non-exclusive driver’s license

Nevertheless, the lower court determined otherwise solely on the grounds stated in its reasoning. In so doing, it erred by misapprehending the legal doctrine on Article 96(1) of the Road Traffic Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, the non-guilty part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)