(a) Whether a stob below 50cc exhaust displacement falls under the "motor bicycle" under Article 2 subparagraph 15 of the Road Traffic Act, which is subject to the penal provisions of Article 5-3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

(b) Whether it constitutes an "motor vehicle, etc." under Article 41 (1) and (2) of the Road Traffic Act, which is subject to the act of driving a motor vehicle, etc. or the act of refusing to measure a motor vehicle, etc., and an "motor bicycle" under Article 41 (2) of the same Act (negative)

(c) Whether Article 2-2 of the Enforcement Rule of the Road Traffic Act (Ordinance of the Ministry of Transport and Transportation No. 861 of August 1, 1987) that puts a motor of less than 50 cc into “motor bicycle” includes a bicycle, violates Article 2-15 of the Road Traffic Act (affirmative)

A. The phrase “motor bicycle” under Article 2 subparag. 15 of the Road Traffic Act, which is subject to the applicable penal provisions of Article 5-3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, refers only to a vehicle with engine displacement of 50cc or more as provided in Article 3 of the Automobile Management Act and Article 2 of the Enforcement Rule of the same Act, or a vehicle with engine displacement of less than 0.59 knife and more than 50 cc in engine displacement, and thus, it cannot be subject to the above aggravated provision.

B. Article 109 subparags. 2 and 3 of the Road Traffic Act (amended by Act No. 4243 of Aug. 1, 1990) provides for a penal provision regarding the act of driving a motor vehicle or the act of refusing to take a alcohol test under Article 41(1) and (2) of the same Act. The above “motor vehicle, etc.” refers to a motor vehicle and a “motor bicycle”, so it does not fall under the application of the above penal provision as to the vehicle with engine displacement less than 50cc, which is not included in the “motor bicycle”.

C. Article 2-2 of the Enforcement Rule of the Road Traffic Act (Ordinance of the Ministry of Government Administration and Home Affairs No. 861 of Aug. 1, 1987) provides that the term "motor bicycle bicycle" means two wheeled motor vehicles with a total displacement of not more than 125 cc (including a bicycle with a motor of less than 50 cc) among two wheeled motor vehicles under Article 3 of the Automobile Management Act, which include less than 50 cc in the "motor bicycle". Article 2-15 of the Road Traffic Act as the mother of this provision delegates the designation of the "motor bicycle bicycle" as the Ordinance of the Ministry of Home Affairs among the two wheeled motor vehicles under Article 3 of the Automobile Management Act, which are not the Ordinance of the Ministry of Home Affairs, and therefore, the provision of the "motor bicycle bicycle bicycle bicycle" as defined in Article 2-15 of the Road Traffic Act, which clearly disregards the provisions of the Enforcement Rule of the Road Traffic Act, so it does not violate the provisions of the Road Management Act and Article 3 and Article 2-2 of the same Act.

A.B.(c) Article 2 subparagraph 15 of the Road Traffic Act, Article 2-2 of the Enforcement Rule of the same Act (Ordinance of the Ministry of Transport and Transportation No. 861 of August 1, 1987), Article 3 of the Automobile Management Act, Article 2 attached Table 1(a) of the Enforcement Rule of the same Act, Article 5-3(1), Article 41(1), and Article 41(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 109 subparagraph 2 of the former Road Traffic Act (amended by Act No. 4243 of Aug. 1, 1990), Article 109 subparagraph 3 of the former Road Traffic Act (amended by Act No. 4243 of Aug. 1, 1990)

Defendant

Prosecutor

Daegu High Court Decision 90No243 delivered on June 13, 1990

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

The interpretation of a penal provision shall be strict, and the interpretation of a penal provision in the direction unfavorable to the defendant is not permitted because it is against the principle of no punishment without the law. This principle of interpretation of a law also applies to the interpretation of administrative law in cases where the contents of the administrative law that is subject to the penal provision are contents.

Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that when a driver of the vehicle who commits a crime as provided in Article 268 of the Criminal Act runs away without taking measures as provided in Article 50 (1) of the Road Traffic Act, such as aiding the injured party, etc., Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be punished aggravatingly for the case of death and injury. Article 2 subparagraph 15 of the Road Traffic Act provides that with respect to the bicycle from among the above two-wheeled vehicles as provided in Article 3 of the Automobile Management Act, the term “motor bicycle” means the vehicle from among the two-wheeled vehicles as provided in Article 3 of the Automobile Management Act and Article 2 attached Table 1 of the Enforcement Rule of the Automobile Management Act shall mean the two-wheeled vehicle manufactured to transport persons of about 1 to 2 degrees, or the vehicle attached on the side of one-wheeled vehicle shall be excluded.

As a result, the "motor bicycle" under Article 2 (15) of the Road Traffic Act, which is subject to the above penal provision of Article 5-3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, refers only to a vehicle prescribed by the Ordinance of the Ministry of Home Affairs from among two-wheeled vehicles with engine displacement of at least 50 cc or rated output of at least 0.59 cc as provided in Article 3 of the Automobile Management Act and Article 2 of the Enforcement Rule of the same Act, which is subject to the above penal provision. Therefore, it cannot be subject to the above aggravated provision.

In addition, Article 109 subparagraphs 2 and 3 of the Road Traffic Act (amended by Act No. 4243 of Aug. 1, 1990) provides for a penal provision as to the driving of a motor vehicle, etc. and the act of refusing to measure taking the driving of a motor vehicle, etc. under Article 41 (1) and (2) of the Road Traffic Act. The above motor vehicle refers to a motor vehicle and a motor bicycle (see Article 15 of the Road Traffic Act). Thus, it is clear that the above provision does not apply to a motor vehicle and a bicycle with engine displacement of less than 50cc, which is not included in the motor device bicycle as seen above.

Article 2-2 of the Enforcement Rule of the Road Traffic Act (Ordinance of the Ministry of Transport, 1987, No. 861) provides that the term "motor bicycle" under Article 2-15 of the Road Traffic Act refers to two wheeled motor vehicles (including single bicycle with a motor of less than 50 cc) with a total displacement of less than 125 cc from among two wheeled motor vehicles under Article 3 of the Automobile Management Act.

However, although Article 2 subparagraph 15 of the Road Traffic Act, which is a mother corporation, delegates the classification and designation of the "motor bicycle" to the Ordinance of the Ministry of Home Affairs and designates the "motor bicycle" by the Ordinance of the Ministry of Transportation other than the Ordinance of the Ministry of Home Affairs, it is in conflict with the provisions of the mother law in this respect because it disregards the matters of the enforcement rules prescribed by the mother law. In addition, as seen earlier, Article 2 subparagraph 15 of the Road Traffic Act delegates the classification and designation of the "motor bicycle" among the two-wheeled motor vehicles under Article 3 of the Automobile Management Act and Article 2 of the Enforcement Rules of the Automobile Management Act, it means two-wheeled motor vehicles under Article 3 of the Automobile Management Act and Article 2 of the same Act mean that the two-wheeled motor vehicles with engine displacement or more than 50 cc with engine displacement or higher than 0.59 cc with engine displacement, so it does not correspond to the above two-wheeled motor vehicles and it does not have any possibility to classify it as the "motor bicycle bicycle bicycle".

The theory argues that a two-wheeled motor vehicle under Article 3 of the Automobile Management Act as stipulated in Article 2 subparagraph 15 of the Road Traffic Act refers to a two-wheeled motor vehicle under Article 2 subparagraph 15 of the Enforcement Rule of the Automobile Management Act except for the proviso among the definitions of the two-wheeled motor vehicles under Article 2 subparagraph 1 of the Enforcement Rule of the Road Management Act, and it is nothing more than a precautionary provision that includes a bicycle. However, this interpretation is not acceptable because it expandss the meaning of the express provision of the written law to the disadvantage of the defendant.

In the above purport, the court below is just in holding that the defendant who drives the 49cc engine displacement with the provision of Article 2-2 of the Enforcement Rule of the Road Traffic Act is not guilty of the violation of Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and the violation of Article 109 (2) and (3) of the former Road Traffic Act from among the facts charged in this case against the defendant who drives the 49cc engine displacement, and there

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Supreme Court Decision 201Hun-Ga111 delivered on April 1, 2011