(영문) 수원지방법원 2019.10.18 2019노2994 | 리걸엔진

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Reasons

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글꼴

크기(pt)

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줄 간격

자간(%)

(영문) 수원지방법원 2019.10.18 2019노2994

도로교통법위반(음주운전)

Text

Defendant

All appeals by prosecutors are dismissed.

Reasons

1. Summary of grounds for appeal;

A. In view of the fact that Defendant 1 was at the time of measuring the blood alcohol concentration by mistake of facts and misapprehension of legal principles, it is difficult to deem that Defendant was driving at the time of the instant case with a blood alcohol concentration exceeding 0.05%. Nevertheless, the lower court erred by misapprehending the facts and by misapprehending the legal doctrine. 2) The sentence (fine 2.5 million won) sentenced by the lower court of unreasonable sentencing is too unreasonable.

B. According to the evidence submitted by the prosecutor (misunderstanding of facts regarding the acquittal portion of the original judgment), the fact that the Defendant was driving at the time of the instant case under the blood alcohol concentration of at least 0.1% can be sufficiently recognized.

Nevertheless, the judgment of the court below that found the charge that the defendant was driving under the blood alcohol concentration of not less than 0.1% at the time of the instant case as not guilty is erroneous in the misapprehension of the facts.

2. As to the defendant's misconception of facts and misapprehension of legal principles, and the prosecutor's acquittal of reasoning

A. The instant facts charged and the lower court’s judgment convicted the Defendant on the charge that “the Defendant was driven under the influence of alcohol at around 00:10 on June 16, 2018,” and that “the Defendant was driven under the influence of alcohol at around 0.125%.” The lower court, without any changes in the indictment, found the Defendant guilty of the facts charged that “the Defendant was driven under the influence of alcohol at around 23:50 on June 15, 2018 at least 0.05% and below 0.1% of alcohol,” and that “the Defendant was driven under the influence of alcohol at around 0.125% of blood alcohol concentration” was not guilty of the facts charged.

In other words, although the facts charged in this case are different from the elements of the crime in quality, the court below recognized the reduction of facts without any difference in quality of the crime.

In such cases, criminal facts can be recognized even without changing the indictment.

(see, e.g., Supreme Court Decision 84Do34, Feb. 28, 1984). B.

The defendant's mistake and misunderstanding of legal principles.

참조판례

-대법원 1964. 3. 31. 선고 64도34 판결

유사 판례

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