[1] Whether a motor vehicle driver has a duty of care to anticipate and prepare for an exceptional situation that is difficult to expect ordinarily (negative)

[2] In a case where the defendant who is an urban bus driver was prosecuted for violating the former Act on Special Cases Concerning the Settlement of Traffic Accidents, on the ground that he was guilty on the ground that he was guilty of an occupational negligence, and that there was an error of misapprehension of the legal principles or misapprehension of the legal principles in the judgment of the first instance that found him guilty on the premise that he was guilty, in a case where he was guilty of a violation of the former Act on Special Cases Concerning the Settlement of Traffic Accidents, where he was guilty on the ground that he was guilty of an occupational negligence, and that he was guilty on the ground that he was guilty

[1] The driver of a motor vehicle is satisfied by performing his/her duty of care to the extent that he/she could avoid the result in preparation for an ordinary foreseeable situation, and it cannot be said that he/she has a duty of care to prepare against the occurrence of an exceptional situation that is ordinarily unpredictable.

[2] In a case where the defendant, who is an urban bus driver, was prosecuted for a violation of the former Act on Special Cases concerning the Settlement of Traffic Accidents (amended by Act No. 9941 of January 25, 2010), because he/she caused a serious injury to the rear wheels of the bus by shocking the ground side of the bus by negligence that does not properly see Gap's movement toward the roadway for boarding the bus, the case holding that the evidence submitted by the prosecutor alone is insufficient to find that the defendant was sufficient to recognize that he/she caused a serious injury to the floor by shocking Gap's front side of the bus, and that it was difficult to see that he/she had a separate approach to the bus from the vehicular road because he/she could not cross the bus at the time of the accident, and that he/she could not cross the bus at the time of the accident, and that he/she could cross the bus at the time of the accident, and even if he/she could cross the bus at the time of the accident with the front side of the bus and the rear side of the bus, it is difficult.

[1] Article 268 of the Criminal Act / [2] Article 268 of the Criminal Act; Article 3(1) of the former Act on Special Cases Concerning the Settlement of Traffic Accidents (Amended by Act No. 9941, Jan. 25, 2010); Articles 307, 325, and 364(6) of the Criminal Procedure Act

[1] Supreme Court Decision 85Do833 delivered on July 9, 1985 (Gong1985, 1150) Supreme Court Decision 86Do123 delivered on August 19, 1986 (Gong1986, 1271)

Defendant

Defendant

Freeboard Kim

Law Firm Maritime River, Attorney Jeong Jae-ho

Busan District Court Decision 2010Dadan850 decided February 23, 2011

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

The traffic accident of this case is an accident that the victim, who is driving by the defendant while driving a bus at a low speed in order to move the bus as a bus stop, turns off the sand that the victim walked on the road by the bus in order to get out of the bus, and is over the rear wheels of the bus, and the defendant must pay due attention to the intersection and bus stop immediately before the bus at the time, and it cannot be anticipated that the victim walking on the bus is facing or getting out of the bus, and it cannot be anticipated that the victim walking on the bus at India would face or fall down with the bus and come under the bottom of the wheels of the bus. Therefore, even though the defendant did not have any occupational negligence and did not shock the victim by the side of the bus as stated in the facts of the crime at the time of the original adjudication, the judgment of the court below which found the defendant guilty of the facts charged of this case, which affected the conclusion of the judgment.

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged

Around 05:20 on April 19, 2009, the Defendant driven an urban bus No. 101 in Busan (vehicle number omitted) owned by ○○ Passenger Co., Ltd., and driven the bus on April 19, 2009, and driven the bus at around 05:20 and proceeded in the direction of a bus stop at the end of a major elementary school. There is narrow width of delivery and the distinction between the roadway and India is well known. At the time of the construction of the sidewalk block construction, India was taking the part in the military road and India, and there was soil on the roadway and India. Therefore, a person engaged in driving a motor vehicle has a duty of care to check whether he/she is a passenger on the bus and safely drive the bus in order to prevent an accident by safely driving the bus.

Nevertheless, even though the defendant discovered that the victim non-indicted 1 was able to board a bus, the defendant did not find the victim who was waiting to board the bus on the front side of the defendant's moving, and did not look at the movement of the victim, and did not find the victim who was going to the roadway to board the bus on the roadway to board the bus, and did not cut the victim into the side of the bus by shocking the victim to the side of the bus of the defendant, and followed the part to the back side of the bus right side of the defendant, with the rear wheels of the victim's left side.

The Defendant suffered from a serious injury, such as exceeding the victim’s left-hand side without knowing the treatment days due to such occupational negligence.

B. The judgment of the court below

The court below found the defendant guilty of the above facts charged by taking account of the adopted evidence.

3. Judgment of the court below

A. Facts recognized

The following facts can be acknowledged in full view of the evidence duly adopted and examined by the court below and the court below.

① The place where the instant accident occurred is one-lane (3.5 meters wide) of the straight line, and the width of India is narrow, and the point where Nonindicted Party 1 runs along the rear wheels of buses, are crossinged by the road with the width of 5.1m wide from the intersection where buses were operated, prior to the occurrence of the accident, the front side of the sidewalk and the road along the direction of bus operation are connected to the intersection at the intersection of the above intersection, and the front side of the sidewalk and the road at the intersection of the above roadway are divided into two separate sections for pedestrians, but at the time of the accident, there was no evidence that the above intersection was installed at the intersection of the above intersection from the intersection of India to the intersection of India, but at the time of the accident, there was no way to see that the above intersection and the left-hand turn-hand turn-hand turn-hand turn from the front side of the bus at the intersection of India.

② At the time of the instant traffic accident, the Defendant driven a bus and proceeded to the left at the seat of a bus crossing, and proceeded to the direction of a bus stop at an annual elementary school. At the time of the instant accident, prior to the occurrence of the instant accident, there was about 50 km a speed of 50 kilometers per hour on the mechanical operation records installed on the bus on the bus, but it was far lower than the speed on the bus stop at the time of the instant accident, since it was immediately prior to the instant accident.

③ Nonindicted 1 resided with his husband who operates a bus stop at approximately 41 meters. Nonindicted 2 and Nonindicted 3, who resides below the intersection on the day of the accident, who opened the said intersection, with Nonindicted 1’s 1st century, with Nonindicted 2 operating the said intersection, and Nonindicted 1’s residents living below the said intersection on the day of the accident, opened the bus with Nonindicted 3, who opened the instant bus, and reported a usual new bus, and opened the bus with Nonindicted 1’s front bus and opened the bus with Nonindicted 1’s front bus in order to look at the right-hand side of the bus. Since the bus driven by the Defendant was coming from the bus stop at the bus stop at the front of the presidential school, Nonindicted 1’s first bus opened the front bus and opened the front bus in order to look at the right-hand side of the bus after Nonindicted 1’s front bus.

④ When the bus stops immediately after the station, Nonindicted Party 1 had the rear wheels of the bus driven by the Defendant, running Nonindicted Party 1, running along the bus stop, following the delivery prior to the width of the above intersection. Nonindicted Party 1 had the rear wheels of the bus driven by Nonindicted Party 1. When the bus stops immediately after the station, Nonindicted Party 1 had the rear wheels of the bus and the rear direction ( Nonindicted Party 1 had the front wheels of the bus at an investigative agency and the court of the original instance, if the bus was driven by the investigation agency, and the court of the original instance, it was just the rear wheels of the bus. However, it seems that Nonindicted Party 1 had the rear wheels of the bus, as it was the wind of the bus stopped. However, considering Nonindicted Party 1’s left side bridge, the shape and width of the part between the bus and the rear wheels, it seems that the accident occurred beyond the rear wheels of this case and the rear wheels of this case seems to have occurred.

⑤ When the bus was sent back to the hospital by Nonindicted Party 1 due to its teared location, body body, and softed with the rear wheels, and after the bus left the scene of the accident, it appears that Nonindicted Party 1’s location, etc., depending on the rear wheeler’s own rear wheels, is the location, etc. (see, e.g., pictures of 19 minutes of investigation record). Nonindicted Party 1’s left side side is attributable to the rear wheel of the bus’s right side. Nonindicted Party 1’s front side side of the bus “○○○○○○,” the front side of the front five-lane office as claimed by Nonindicted Party 1, and the front side of the bus appears to have arrived at the front and rear wheeler’s front side immediately after being marked with the front yellow line, and the victim appears to have arrived at the front and rear 19m of the accident after being marked to the rear wheeler’s front and rear wheeler’s front side.

④ At the entrance of India (in a place adjacent to an intersection) from the point of “○○○○○○,” through which the said intersection was set up, the support stand for the traffic signal lights, etc. of the said intersection at the bus stops and the cable poles were installed. At the time of the instant accident, Nonindicted 1, at the time of the instant accident, there was a situation in which, in order to go to the bus stops as Nonindicted 1, the said support stand, depending on the delivery before the intersection was opened, and if the bus stops to the bus stops due to continuous delivery after the intersectioning the intersection, there was a situation that it could have caused somewhat inconvenience due to the said cross-section, the boundary line, and the sidewalk block construction, which was in progress in the said area.

B. Whether the defendant's occupational negligence is recognized

1) In a criminal trial, the conviction in a criminal trial ought to be based on evidence with probative value, which leads to the judge to have the conviction that the facts charged are true beyond a reasonable doubt. If there is no such evidence, even if there is doubt of guilt against the defendant, the judgment should be made with the benefit of the defendant (see, e.g., Supreme Court Decision 2007Do5389, Jun. 12, 2008). Meanwhile, the driver of a motor vehicle is sufficiently satisfied by performing his/her duty of care to the extent that he/she could avoid the outcome in preparation for an ordinary predicted situation, and cannot be said to have the duty of care to prepare for such occurrence (see Supreme Court Decision 85Do833, Jul. 9, 1985).

2) Whether Non-Indicted 1 caused a bus to be shocked by the side part of the bus

In line with the purport that Nonindicted Party 1 was sleeped in the side part of the bus and sleeped on or exceeded the floor, there are Nonindicted Party 1’s statement in the original trial; Nonindicted Party 1’s statement in the court of the original trial; Nonindicted Party 4’s statement in the bus passengers; Nonindicted Party 5’s statement in the court of the original trial; and Nonindicted Party 5’s statement in the mail protocol prepared by Nonindicted Party 5; and images of the classic photo attached to the investigation report prepared by Nonindicted Party 6.

First of all, Non-Indicted 1's statement in the court below and Non-Indicted 4's statement in the court below. Non-Indicted 1 stated that the left side of the bus at the court below met with the bus in the future, and that the bus left side and left side side of the bus in order to get out of the bus, and that it was lying off between the front and rear wheels of the bus immediately after the station and the bus. Non-Indicted 4, a witness of the bus, made a statement that the victim was against the rear wheels of the bus at the court below, but Non-Indicted 4 did not know that the victim was faced with the bus at the time of the court below, and it was hard for the victim to see that it was too close to the bus at the court below, and it was hard for the latter wheels of the bus at the court below to find that the victim was not able to see the rear wheels of the bus and the rear wheels of the bus at the time of the court below.

Furthermore, in the statement of Nonindicted Party 5’s letter of opinion on Nonindicted Party 1’s part of Nonindicted Party 1’s injury and the letter of opinion on the above statement of opinion, Nonindicted Party 5’s letter of opinion stating that “There is an error in the report, and there is no room to damage the above report beyond it, and there is a high possibility that high possibility of causing damage to high energy.” However, in light of the fact that Nonindicted Party 1 and Nonindicted Party 1 appeared entirely on the side of the bus on the record, and that there is no string of Nonindicted Party 1 and Nonindicted Party 1 were put in the back on the back, and that Nonindicted Party 1 was placed in the back, and as seen in the above back, it is difficult to readily conclude that the right bridge, as seen above, has reached a shock, or that there is a high possibility that Nonindicted Party 1 and Nonindicted Party 1 were used as evidence in the process of expressing the right side of the bus at the time of the accident.

Finally, according to the above image of the back-to-face image of the above back-to-face image (32,123 of the investigation record) and the above image, it can be inferred that the part of Non-Indicted 1, etc., where the back-to-hand part of the back-to-hand part of the back-hand part of the back-hand part of the back-to-face was shocked on the side of the bus. However, there is no evidence to acknowledge that the examination being carried after the above back-to-date was conducted by the bus side (this part of the police, the prosecution did not completely try to investigate the scientific investigation, such as the color analysis of the color of the back-to-face, etc.). Rather, in light of the above color and form, it is probable that the above trace was insufficient to view that the part of Non-Indicted 1, etc., such as the photo back-to-face, was used as evidence after being sealed back to the rear wheels, and then shocked into the wheels.

Rather, in full view of the records, Nonindicted 1’s left bridge appears to have been driven by the rear wheels of the bus, and the body of the victim was deemed to have entered the bus before the passage, and since the sidewalk block construction at the time, sand was scattered to the roadway of the intersection, it appears that Nonindicted 1 of the old age opened a heavy exhauster, and opened the bus at the bus driving direction, Nonindicted 3 waiting for Nonindicted 3 and left the right-hand turn to the bus stop in order to get out of the bus like the bus, and it seems that Nonindicted 2 followed Nonindicted 2 of the front bus stop to go ahead of the bus stop and to turn back to the bus stop at the right side of the bus, and that it seems that there seems to be a high possibility of getting out of the intersection (in case of the crosswalk, the boundary between the roadway and India) or the road at the right side of the bus, and thus, it appears that it was possible to go back to the intersection or the road at the right side of the bus, and that it was possible to get out of the bus due to the distance of the bus.

3) Whether the Defendant neglected his duty of care to prevent accidents as a person driving a motor vehicle

According to the evidence duly examined by the court below and the court below, in order to turn to the right at the port side of the front side of the bus crossing, and to stop at the bus stop located far away from 19 meters wide from the front side of the bus stop at the port side of the above intersection, the defendant found the non-indicted 1 walking ahead of the bus stop in order to get out of the bus at the right side of the bus, and see that he was a customer who is willing to board the bus at the bus at the bus stop at the time of the passage of the above intersection, and that there was a person who wants to board the bus at the bus stop at the bus stop at the time of the passage of the above intersection, and even though he was on the side of the above intersection, he did not hear only the non-indicted 1's rear bus stop at the right side of the bus crossing, but only the non-indicted 4's rear bus stop or the part of the bus stop outside the front side of the bus stop, etc., and after hearing only the non-indicted 1's rear bus stop.

(b) Even if the facts of the above sub-section are recognized, the shape of the cross-section of this case before and after the intersection, the shape of the roadway and delivery, the part where the construction of the boundary of the sidewalk and the sidewalk was completed, the location of the bus stop in the intersection, the existing yellow-line location of the bus at the intersection, and the point where Non-Indicted 1’s bridge was initially stationed on the right side of the bus, etc., even if Non-Indicted 1 considered that he was in front of the bus to leave the bus before and after the intersection of this case, he would not have been able to leave the bus at the right side of the bus at the front and after the intersection of this case, and even if he was found to have been able to leave the bus at the front and after the intersection of this case, it would be difficult for the defendant to leave the bus at the right side of the bus immediately before and after the intersection of this case, and it would have been difficult for him to leave the bus at the right side of the road immediately before and after the intersection of this case.

4) Ultimately, the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant, among the facts charged in the instant case, caused Nonindicted Party 1 to extinguish the floor by shocking Nonindicted Party 1 due to occupational negligence that did not properly examine Nonindicted Party 1’s movement. There is no other evidence to exclude such reasonable doubt and to acknowledge the Defendant’s occupational negligence.

C. Sub-committee

Therefore, even though whether a bus operator who caused the instant accident is liable for damages under Article 3 of the Guarantee of Automobile Accident Compensation Act, the court below found the Defendant guilty of the instant facts charged on the premise that the occurrence of the instant traffic accident was of occupational negligence as prescribed in Article 268 of the Criminal Act, and erred by misapprehending the legal principles as to a person engaging in driving service or driving service, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

【Discretionary Judgment】

The summary of the facts charged in this case is the same as the above 2. A., and this constitutes a case where there is no proof of crime as stated in the above 3.3., and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of

Judges Shin Jin-chul (Presiding Judge) Kim Young-ho