209No4221 Violation of the Road Act

South A (55 years old, South)

Defendant

Maximumization

Busan District Court Decision 2009 High Court Decision 1027 Decided November 9, 2009

May 7, 2010

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

The Defendant asserts that, as a driver of a vehicle, there was no intention to overwork the vehicle, and Article 98(3) of the Road Act provides that if the lessee of a vehicle is punished for violating the restriction on operation, the driver’s punishment may be reduced or exempted. Accordingly, the Defendant’s punishment should be exempted in accordance with the purport, and the lower court’s judgment which convicted the Defendant of the charge is erroneous by misapprehending the legal doctrine on the Road Act and thereby adversely affecting the conclusion of the judgment (the Defendant’s assertion of the misapprehension of the legal doctrine is that the Defendant’s punishment should be mitigated or exempted pursuant to Article 98(3) of the Road Act

2. Determination

A. Judgment on the assertion of mistake of fact

In light of the evidence duly adopted and examined by the court below, at the time when the vehicle of this case was controlled, 11.35 tons in the 1st axis, 11.00 tons in the 2nd stable, 11.09 tons in the 3nd stable, and 11.50 tons in the 4nd stable, and exceeding 10 tons in the limited weight. The defendant had been sentenced to a dump truck driving career of this 18 years, and was sentenced to a fine due to a violation of the Road Act, 5 times in the 18th century. The defendant stated that the police at the time of loading the earth of this case, the article 1.35 tons in the 1st axis, 11.0 tons in the 2nd stable, 11.09 tons in the 3nd stable, and 11.50 tons in the 4nd stable, and that the defendant did not have any reason to believe that he was loaded with the vehicle of this case.

B. Judgment on misapprehension of legal principles

On the other hand, Article 98 (3) of the Road Act provides that where a lessee (referring to a contractor, subcontractor, or construction participant under the Framework Act on the Construction Industry in the case of construction work) who fails to perform his/her duty to manage the violation of restrictions on operation is punished, the sentence may be mitigated or exempted for the driver and owner of the vehicle. However, according to the statement of the decision of non-prosecution against the friendly, it can be acknowledged that the friendly has been subject to a disposition for the violation of the Road Act on the ground that the lessee of the vehicle in this case or the contractor, subcontractor, subcontractor, or construction participant under the Framework Act on the Construction Industry is not a construction participant, and that the friendly has not been punished as a tenant, it cannot be said that there was an error of law by misapprehending the legal principles as to the Road Act on the ground that the friendly has not been punished as a tenant, and therefore there is no reason to believe that the defendant's misapprehension of legal principles is without merit (In addition, the provision of reduction or exemption under Article 98 (3) of

Although the Defendant cannot be deemed to be solely responsible for the instant excessive operation, the Defendant cannot be deemed to be in violation of the Road Act. Meanwhile, in light of the following: (a) around November 200; (b) around May 1997; (c) around July 1992; (d) around April 1992; (b) around January 1, 1992; (c) around KRW 100,000; and (d) around January 1992, there was a power of being sentenced to a fine of KRW 100,000; (d) the degree of excess of the instant restriction weight exceeds 5.75 tons; (e) there is a need to strictly limit the operation of vehicles exceeding the restricted weight for adequate road management and prevention of traffic obstruction; (e) equity with punishment; (e) details and details leading to the instant crime; and (e) background and details leading up to the instant crime; and (e) the Defendant’s age, Defendant’s family relationship, occupation, and occupation.

3. Conclusion

Therefore, the defendant's appeal of this case 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.

The presiding judge, judge and senior judge;

Judge Lee Dong-dong

Judges Shin Jae-won