[1] Nature of Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes and protected legal interests

[2] The relation between the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death or Injury caused by Dangerous Driving) and the crime of violation of the Road Traffic Act (=the relation of absorption

[1] The elements of Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which punishs a person who causes injury to another person or causes death by driving a motor vehicle under the influence of alcohol or drugs, are special as a result of the act of driving the motor vehicle under the condition that it is unlikely to drive the motor vehicle normally due to the influence of a minor fine, disease or medicine, in addition to under the influence of alcohol, and other reasons, the act of driving the motor vehicle is deemed to be a basic crime. In light of the legal interests protected by the law, the special consequence of the act of driving the motor vehicle, etc. among the offenses of Articles 150-1, 150-3, 44(1), and 45 of the Road Traffic Act, which are especially serious as a basic crime. From the perspective of the legal interests protected by the law, since the danger of traffic safety is embodied in a specific situation and the danger is combined and aggravated,

[2] The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death or Injury caused by Dangerous Driving) is a fundamental crime resulting from a serious form of violation of the Road Traffic Act, which includes both the type of act and the protected legal interest and protection of the law. Thus, if the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is established, the crime of violation of the Road Traffic Act is not incorporated separately.

[1] Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 44 (1), 45, and 150 subparagraph 1 and 3 of the Road Traffic Act / [2] Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 44 (1) and 150 subparagraph 1 of the Road Traffic Act

Defendant

Both parties

Maternho

Seoul Northern District Court Decision 2008Dadan488 decided April 11, 2008

All appeals filed by prosecutors and defendants are dismissed.

1. Summary of grounds for appeal by prosecutors and defendants;

A. Summary of the prosecutor's grounds for appeal

The prosecutor indicted the victims of each injury on the part of the victims due to occupational negligence while driving a taxi in a state of alcohol with 0.112% alcohol concentration as concurrent crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death and Injury resulting from Dangerous Driving) and violation of the Road Traffic Act (driving) while driving the taxi in a state of alcohol alcohol level of 0.12%. The above charges were all acknowledged by evidence.

Nevertheless, in light of the structure and legislative intent of Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes, if the crime of violation of the Road Traffic Act is established, the crime of violation of the Road Traffic Act shall be deemed not to be established separately, and the crime of violation of the Road Traffic Act was acquitted on the grounds thereof.

However, in general, if a person is injured or killed while driving a motor vehicle while driving a motor vehicle, the crime of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, which is a Special Act on the Prevention of Death and Injury by Occupational Negligence, and the crime of violation of the Road Traffic Act is regarded as concurrent crimes. The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death and Injury resulting from Dangerous Driving) is a aggravated provision of the Act on Special Cases concerning the Settlement of Traffic Accidents

The judgment of the court below is erroneous in the misapprehension of legal principles.

B. Summary of the grounds for appeal by the defendant

The sentence of the lower court (two months of imprisonment, two years of probation, 80 hours of community service order, and 40 hours of order to attend a compliance driving lecture) is too unreasonable.

2. Determination:

(a) Relationship between the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the violation of the Road Traffic Act;

Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person who drives a motor vehicle under the influence of alcohol or drugs and causes injury to another person shall be punished by imprisonment for not more than 10 years or by a fine not less than 5 million won but not more than 30 million won, and Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that “any person who causes death shall be punished by imprisonment for a limited term of not less than one year.” The above provision was proposed on December 27, 2006, and was referred to the Legislation and Judiciary Committee of the National Assembly on January 2, 2007, and was promulgated and implemented on December 21, 2007, according to the process of the proposal and reason of the final resolution (No. 7921 of the Bill No. 7921) to strengthen the punishment for drunk driving under the Act on Special Cases Concerning the Settlement of Traffic Accidents, and it is almost consistent with the law.

The above provision is interpreted as a kind of aggravated crime resulting from the combination of intentional act of driving of a motor vehicle under the influence of alcohol or drugs for which normal driving is difficult under the influence of alcohol or drugs. Of course, there is no separate provision for driving of a motor vehicle under the influence of alcohol or drugs. However, Article 45 of the Road Traffic Act provides that "the driver of a motor vehicle, etc. shall not drive a motor vehicle under the influence of alcohol or drugs other than under the influence of alcohol or drugs as provided in Article 44 and shall not drive a motor vehicle under the influence of normal driving under the influence of Article 150 subparagraph 3 of the Road Traffic Act." It is more minor than "driving a motor vehicle under the influence of a normal driving under the influence of drugs," and thus, it is deemed that there is a concern that it may not be a normal driving under the influence of Article 150 subparagraph 3 and Article 45 of the Road Traffic Act as a result of an aggravated punishment under the influence of Article 150 subparagraph 4 of the Road Traffic Act."

As can be seen, as a result of an aggravated crime in which the Act on the Aggravated Punishment, etc. of Specific Crimes (the Act on the Aggravated Punishment, etc. of Specific Crimes) is a serious form of violation of the Road Traffic Act (the act on the Aggravated Punishment, etc. of Specific Crimes) as a basic crime, inasmuch as both the types of act and the legal interest and protection of the law are already included, if the Act on the Aggravated Punishment, etc. of Specific Crimes (the act on the Aggravated Punishment, etc. of Specific Crimes) is established, it is reasonable to deem that the violation of the Road Traffic Act (the act on the A

In the same purport, there is no illegality as pointed out by the prosecutor in the judgment of the court below that acquitted the person in violation of the Road Traffic Act.

B. Unreasonable sentencing

However, even if all of the circumstances mentioned above are considered in light of the Defendant’s drinking circumstance, blood alcohol concentration level, and all other sentencing conditions, the punishment determined by the lower court is too unreasonable, even if it is considered that the punishment is too unreasonable.

The defendant's assertion of unfair sentencing is not accepted.

3. Conclusion

Therefore, the appeal filed by the prosecutor and the defendant is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Han Chang-ho (Presiding Judge)

1) The first sentence of Article 208-2 of the Japanese Criminal Code: Any person who drives a motor vehicle with no less than the wheels while normal operation is difficult due to alcohol or drugs, and thereby causes the injury of another person, shall be punished by imprisonment for not more than 15 years, and any person who causes the death of another person, by imprisonment for a limited term of not