A. In a case where a prosecution was instituted on the grounds of Article 3(1) and the proviso of Article 3(2)2 of the Act on Special Cases concerning the Settlement of Traffic Accidents, but the trial was conducted in the trial proceedings, and the fact of insurance coverage is not recognized, whether the defendant can be acquitted on the ground that he/she did not have any breach of duty of care

B. In a case where a prosecutor appeals the judgment of the first instance court not guilty, but it is deemed that there are grounds to dismiss the public prosecution, whether the appellate court reverse ex officio the judgment of the first instance and sentenced the dismissal of prosecution

A. It is clear that the defendant was indicted due to the reason under Article 3(1) and proviso of Article 3(2)2 of the Act on Special Cases concerning the Settlement of Traffic Accidents, but the trial proceedings conducted in the trial proceedings, and as a result, the defendant did not have operated the vehicle by breaking the central line. On the other hand, if it is found that the vehicle operated by the defendant at the time of the accident was insured under the main sentence of Article 4(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents, the indictment is null and void in violation of the provisions of the Act on Special Cases concerning the Settlement of Traffic Accidents, since the procedure for indictment under Article 327 subparag. 2 of the Criminal Procedure Act is invalid, the court should render a judgment of dismissing the public

B. In a case where it is recognized that the prosecutor appealed the judgment of the first instance court which was not guilty for violating the rules of evidence, but there is a ground for dismissing the prosecution, the appellate court shall ex officio determine the judgment of the first instance court and render a judgment of dismissing the prosecution prior to the judgment of not guilty as to the facts charged against the defendant. The appellate court shall dismiss the prosecutor's appeal on the ground that there is a ground for dismissing the

(a)Article 327 Subparag. 2(a) of the Criminal Procedure Act; Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents, Article 3(2) proviso proviso and Article 4(1) main sentence(b) of the same Act; Article 368 of the Criminal Procedure Act

A. Supreme Court Decision 87Do2673 delivered on March 8, 1988 (Gong1988, 727)

Defendant

A co-inspector;

Daegu District Court Decision 94No532 delivered on June 2, 1994

We reverse the judgment of the court below and the judgment of the first instance.

The prosecution of this case is dismissed.

The grounds of appeal are examined.

1. Examining the reasoning of the judgment below in light of the records, the court below is just in maintaining the judgment of the court of first instance that the accident of this case is not limited to the defendant's operation of the vehicle with the central line, and there is no error of violation of the rules of evidence as otherwise alleged in the ground of appeal.

2. However, according to the records, since this case is a traffic accident which causes the injury of a person by running the central line, it is clearly stated that the defendant had no operation of the motor vehicle with the central line as seen above, as the result of deliberation at the trial proceedings, and since the motor vehicle operated by the defendant at the time of the accident is insured under the main sentence of Article 4(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents, the prosecution of this case constitutes a case where a prosecution is instituted in violation of Article 327 subparag. 2 of the Criminal Procedure Act, and thus, the prosecution of this case constitutes a case where the defendant violated the provisions of the Act on Special Cases concerning the Settlement of Traffic Accidents. Therefore, the court below should have ruled that the defendant's dismissal of the prosecution of this case is not unlawful on the ground that there is no violation of the duty of care in the traffic accident of this case, and should have declared that there is no error in the judgment of the court below as to the defendant's dismissal of the prosecution of this case under the provisions of Article 327 subparag. 1 of the Criminal Procedure Act. 98.

As stated in the reasoning of the judgment of the court of first instance, the indictment of this case against the defendant constitutes a case where the procedure is invalid in violation of the provisions of law as seen earlier, and thus, the prosecution of this case against the defendant is dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act.

3. Accordingly, the judgment of the court below and the judgment of the court of first instance are reversed, and the indictment of this case against the defendant is dismissed. It is so decided as per Disposition by the assent of

Justices Park Jong-chul (Presiding Justice)