logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
arrow
(영문) 대법원 1995. 12. 22. 선고 94도1519 판결
[교통사고처리특례법위반·도로교통법위반·업무상과실군용물손괴·무단이탈][공1996.2.15.(4),615]
Main Issues

[1] Whether a motor vehicle excluded from the application of the Automobile Management Act constitutes a motor vehicle under Article 2 subparagraph 14 of the Road Traffic Act

[2] The case holding that an automobile falls under a vehicle under the Act on the Management of Military Supplies and thus excluded from the application of the Automobile Management Act, but falls under a vehicle under Article 2 subparagraph 14 of the

Summary of Judgment

[1] The term "motor vehicles" under subparagraph 1 of Article 107-2 and Article 41 (1) of the Road Traffic Act, which are subject to the penal provisions for driving under Article 2 subparagraph 14 of the Road Traffic Act, is sufficient if they fall under any of the various motor vehicles listed in Article 3 of the Automobile Management Act, Article 2 [Attachment 1] of the Enforcement Decree of the Automobile Management Act, and Article 2 of the Automobile Management Act, and Article 2 subparagraph 1 proviso of the Automobile Management Act, Article 2 subparagraph 1 of the Automobile Management Act, Article 2 subparagraph 14 of the Enforcement Decree of the Automobile Management Act, as long as they meet the above defined requirements.

[2] Although the application of the Automobile Management Act is excluded because the NE-cell car falls under the proviso of Article 2 subparagraph 1 of the Automobile Management Act, and Article 2 subparagraph 3 of the Enforcement Decree of the Automobile Management Act, it is clear that it falls under the general type passenger car among the automobiles listed in Article 3 of the Automobile Management Act, the Enforcement Rule of the Automobile Management Act, and Article 2 subparagraph 14 of the Road Management Act.

[Reference Provisions]

[1] Article 2 subparagraph 14 of the Road Traffic Act, Article 41 (1) and Article 107-2 of the Road Traffic Act, Article 2 subparagraph 1 of the Automobile Management Act, Article 3 of the Enforcement Decree of the Automobile Management Act, Article 2 subparagraph 3 of the Enforcement Rule of the Automobile Management Act / [2] Article 2 subparagraph 14 and Article 3 of the Road Traffic Act, Article 2 subparagraph 1 of the Automobile Management Act, Article 2 subparagraph 3 of the Enforcement Decree of the Automobile Management Act, Article 2 and Article 3 of the Act on the Management of Military Supplies, Article 1 (1) and (4) of the Enforcement Decree of the Act on the Management of Military

Reference Cases

[1] Supreme Court Decision 92Do3126 delivered on February 23, 1993 (Gong1993Sang, 1115) / [2] Supreme Court Decision 84Do2884 delivered on July 9, 1985 (Gong1985, 1143) Supreme Court Decision 91Do159 delivered on May 28, 1991 (Gong191, 1823)

Defendant

Defendant

Appellant

Military prosecutor;

Defense Counsel

Attorney Park Tae-chul

Judgment of the lower court

Maritime Court Decision 94No10 delivered on May 2, 1994

Text

The judgment of the court below is reversed, and the case is remanded to the High Military Court for Navy.

Reasons

The grounds of appeal are examined.

1. As to occupational negligence, damage to military supplies, and unauthorized escape

Of the judgment of the court below, there is no indication in the grounds of appeal as to the occupational negligence, damage to military supplies, and unauthorized deprivation of military supplies, and no separate ground of appeal has been submitted within the legitimate period. Therefore, this part of the appeal is

2. As to the violation of the Road Traffic Act

According to Article 107-2 subparagraph 1 and Article 41 (1) of the Road Traffic Act, the main sentence of Article 2 subparagraph 14 of the Road Traffic Act provides that a person who drives a motor vehicle, etc. while under the influence of alcohol shall be punished, and the person who drives a motor vehicle shall be limited to the person who drives a motor vehicle. The term "motor vehicle" means a motor vehicle operated by using a motor without a railroad or a installed line (any towed motor vehicle shall be deemed part of a motor vehicle), under Article 3 of the Automobile Management Act, and construction machinery under the proviso of Article 26 (1) of the Construction Machinery Management Act. Article 3 of the Automobile Management Act provides that the types of motor vehicles shall be classified into passenger motor vehicles, bus, freight motor vehicle, special motor vehicle, and two-wheeled vehicle. The classification of motor vehicles shall be classified into the size, structure, type of motor vehicle, total quantity, or fixed amount of motor vehicle. Article 2 subparagraph 14 of the Road Traffic Act provides that the number of motor vehicles shall be classified into more than 0 c.1 and less than 20 c.

Meanwhile, Article 2 subparagraph 1 of the Automobile Management Act provides that "motor vehicles" mean instruments manufactured for the purpose of moving on land by motor or instruments manufactured for the purpose of moving on land. Article 2 subparagraph 1 of the Enforcement Decree of the same Act provides that "those prescribed by Presidential Decree" means vehicles under subparagraph 3 of Article 2 of the Act on the Management of Military Supplies. Article 2 of the Act provides that the term "military supplies" means vehicles that are possessed by the Ministry of National Defense among the goods under Article 2 (1) of the Commodity Management Act and their direct agencies and other military supplies that are managed by the Army, Navy, and Air Force" shall be classified into war supplies and ordinary supplies for the purpose of transporting military supplies by motor. Article 3 of the Enforcement Decree of the same Act provides that the term "those that are listed in the attached Table 4 of the same Act shall be excluded from those operated by the Minister of National Defense for the purpose of transporting military supplies to Class 1 of the same Article, and the term "those that are listed in the attached Table 2 shall be classified into weapons or military supplies that belong to Class 3 of the same Article 3 of the same Act:

The purpose of the Road Traffic Act is to prevent and eliminate all dangers of traffic accidents on roads to ensure safe and smooth traffic (Article 1), while the purpose of the Act is to efficiently manage motor vehicles, certify ownership of motor vehicles and ensure safety of motor vehicles by prescribing matters concerning registration, safety standards, type approval, inspection, maintenance, inspection, and motor vehicle management business, etc. (Article 1), and the legislative purpose of the Act is different from each other (Article 2 subparagraph 14 of the Road Traffic Act). Article 2 subparagraph 14 of the Road Traffic Act also lists only Article 3 of the Motor Vehicle Management Act and does not list it. In light of the above, Article 2 subparagraph 14 of the Road Traffic Act, which is subject to the provision of the regulations on driving a motor vehicle under Article 107-2 subparagraph 1 and Article 41 (1) of the Road Traffic Act, the term "motor vehicle" under Article 2 subparagraph 14 of the Road Traffic Act, which does not meet any of the requirements of Article 2 subparagraph 2 of the Enforcement Decree of the Motor Vehicle Management Act.

According to the health stand and evidence employed by the first instance court as to the instant case, since it is recognized that the instant NE car (01 meat 1140) corresponds to the proviso of Article 2 subparagraph 1 of the Automobile Management Act and Article 2 subparagraph 3 of the Enforcement Decree of the same Act, the instant NE car is excluded from the application of the Automobile Management Act. However, according to the above evidence, it is evident that the instant NE car is a general type passenger car among the automobiles listed in the attached Table 1 of the Enforcement Rule of the Automobile Management Act and Article 3 of the Automobile Management Act and Article 1 of the Road Management Act, since it is evident that the instant NE car constitutes a motor vehicle under Article 2 subparagraph 14 of the Road Traffic Act.

Therefore, the court below's decision of not guilty of the violation of the Road Traffic Act among the facts charged in this case is erroneous in the misapprehension of legal principles as to the "motor vehicles" under Article 107-2 subparagraph 1 and Article 41 (1) of the Road Traffic Act. However, since the violation of the Road Traffic Act in this case is pardoned by the general amnesty order of December 2, 1995 under the Presidential Decree No. 14818 of December 2, 1995, the facts charged in the violation of the Road Traffic Act against the defendant should be acquitted under Article 381 subparagraph 2 of the Military Court Act.

3. On the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents

As seen earlier, it is reasonable to see that the NE car of this case constitutes an automobile under Article 2 subparagraph 14 of the Road Traffic Act. Thus, when an accident causing an injury to a person while driving the car has been caused, it shall be subject to the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents.

However, according to the records, it can be known that the defendant is causing a traffic accident while driving a drinking alcohol and causing an injury to the victim, and thus, the defendant is a person driving a motor vehicle while driving the motor vehicle during the driving under the proviso of Article 3 (2) and Article 3 (8) of the Act on Special Cases concerning the Punishment of Victims. Therefore, the court below cannot dismiss the prosecution even if the victim is not punished upon agreement with the victim, and if the criminal facts are acknowledged, the court below should have convicted the defendant

Therefore, the judgment of the court below which rejected the appeal as to the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents without the need to determine whether the instant accident should be seen as a central crime, is erroneous in the misapprehension of legal principles as to the crimes under Article 3(1) and proviso of Article 3(2)8 of the Act on Special Cases concerning the Settlement of Traffic Accidents. The arguments are with merit.

4. Therefore, the part of the judgment of the court below concerning the violation of the Road Traffic Act and the Act on Special Cases concerning the Settlement of Traffic Accidents cannot be maintained as it is. The crime of causing damage to military supplies by occupational negligence, which the court below found guilty and the crime of causing damage to military supplies by occupational negligence, is a commercial concurrent crime, and the crime of causing damage to military supplies by occupational negligence, which is judged guilty by the court below, is in the relation of the crime of violating the Road Traffic Act and the crime of evading without permission, which is judged guilty by the court below. Accordingly, the judgment

Justices Cho Chang-tae (Presiding Justice)

arrow
심급 사건
- 해군고등법원 1994.5.2.선고 94노10

따름판례

- 대법원 2006. 5. 11. 선고 2004도5972 판결 공보불게재

관련문헌

- 김병운 일반사면에 관련된 문제점에 대한 소고 형사재판의 제문제 . 제1권 (97.01) / 박영사 2000

- 김종수 음주운전으로 인한 운전면허취소.정지의 몇 가지 논점 재판과 판례 제25집 / 대구판례연구회 2016

참조판례

- [1] 대법원 1993. 2. 23. 선고 92도3126 판결(공1993상, 1115)

- [2] 대법원 1985. 7. 9. 선고 84도2884 판결(공1985, 1143)

- 대법원 1991. 5. 28. 선고 91도159 판결(공1991, 1823)

참조조문

- [1] 도로교통법 제2조 제14호 (위헌조문)

- 도로교통법 제41조 제1항 (위헌조문)

- 도로교통법 제107조의2 (위헌조문)

- 자동차관리법 제2조 제1호 (위헌조문)

- 자동차관리법 제3조 (위헌조문)

- 자동차관리법시행령 제2조 제3호

- 자동차관리법시행규칙 제2조 (위헌조문)

- [2] 도로교통법 제2조 제14호 (위헌조문)

- 도로교통법 제3조

- 자동차관리법 제2조 제1호 (위헌조문)

- 자동차관리법시행령 제2조 제3호

- 군수품관리법 제2조

- 군수품관리법 제3조

- 군수품관리법시행령 제1조 제1항

- 군수품관리법시행령 제1조 제4항

본문참조조문

- 도로교통법 제107조의2 제1호

- 도로교통법 제41조 제1항

- 도로교통법 제2조 제14호

- 자동차관리법 제3조

- 건설기계관리법 제26조 제1항

- 자동차관리법시행규칙 제2조

- 자동차관리법 제2조 제1호

- 자동차관리법시행령 제2조

- 자동차관리법 제2조 제3호

- 군수품관리법 제2조

- 물품관리법 제2조 제1항

- 군수품관리법 제3조

- 군수품관리법시행령 제1조 제1항

- 군수품관리법 제2조 제1호

- 군수품관리법 제3조 제2호

- 군수품관리법 제3조 제3호

- 군수품관리법 제3조 제4호

- 군수품관리법 제3조 제5호

- 군수품관리법 제2조 제4항

- 군수품관리법 제3조 제1항

- 도로교통법 제1조

- 자동차관리법 제1조

- 도로교통법 제107조의2 제1호

- 자동차관리법시행령 제2조 제3호

- 도로교통법 제107조의2 제1호

- 군사법원법 제381조 제2호

- 교통사고처리특례법 제3조 제2항 제8호

- 교통사고처리특례법 제3조 제1항 제8호

원심판결

- 해군고법 1994. 5. 2. 선고 94노10 판결