2017Nu766. Revocation of revocation of license for driving motor vehicles

A

Gyeongsan-si

Law Firm (LLC) LLC et al.

Attorney Park Jong-soo, Justice Hong-il, Counsel for the plaintiff-appellant

The Commissioner of the Gyeongbuk-do Police Agency

Litigation Performers;

Daegu District Court Decision 2017Gudan10505 Decided November 17, 2017

March 16, 2018

April 6, 2018

1. Revocation of the first instance judgment.

2. On February 22, 2017, the Defendant’s revocation of the license granted to Plaintiff on February 22, 2017

3. All costs of the lawsuit shall be borne by the defendant.

The text shall be as shown in the text.

1. Details of the disposition;

A. On August 11, 2016, at around 22:09, the Plaintiff driven a passenger car No. C’s No. 00000 (hereinafter “automobile of this case”) owned in front of the front of the parking lot No. 108, “B apartment” (hereinafter “the apartment of this case”) at the front of the 108-dong parking lot (hereinafter “the apartment of this case”).

B. At the time, C was dispatched to police officers due to a collision that occurred while parked the instant vehicle, and the Plaintiff refused to comply with the demand of a police officer for a alcohol measurement at the central police station of the police station around 23:10 of the same day to 23:40 of the same day on the ground that he did not drive the vehicle.

C. On February 22, 2017, the Defendant rendered a disposition to revoke a driver’s license (Class I ordinary) on March 26, 2017 against the Plaintiff on the ground that the Plaintiff failed to comply with a police officer’s request for the measurement of alcohol without justifiable grounds (hereinafter “instant disposition”).

D. The Plaintiff filed an administrative appeal against the instant disposition, but was dismissed on April 11, 201 by the Central Trial Committee.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, 4, 15, Eul evidence 1 to 6

(c) Each description, image, and purport of the whole pleadings;

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The place where the Plaintiff driven is a passage within the parking zone installed in the apartment of this case, and thus does not fall under “road under the Road Traffic Act”, and thus, the Plaintiff refused to comply with the demand for alcohol measurement. Even if so, this does not constitute a ground for revocation of driver’s license.

2) Since the Plaintiff was in fact forced by force at the time and received a demand for a measurement of drinking alcohol in an illegal arrest, the Plaintiff does not constitute a refusal to comply with the demand for a measurement of drinking alcohol even if he did not comply therewith.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

(c) Whether the case constitutes driving on a road

1) Relevant legal principles

○ The non-compliance with the requirement for revocation of a driver’s license under Article 93 of the Road Traffic Act refers to a case where there are reasonable grounds to believe that a driver was driving on the road as stipulated in Article 2 subparag. 1 of the Road Traffic Act, and it does not mean a case where a driver is deemed to have driven on the road outside of the road (see Supreme Court Decision 2013Du9359, Oct. 11, 2013).

According to Article 2 of the Road Traffic Act, the term "driving" means the use of a motor vehicle or horse on a road (including places other than a road in the case of Articles 44, 45, 54(1), 148 and 148-2) according to its original purpose and use (Article 26). The term "road" here means a place (Article 44, 45, 54(1), 148, and 148-2) where it is necessary to ensure safe and smooth flow of traffic by many and unspecified persons, motor vehicles, and horses.

If a parking zone line between the buildings in an apartment complex has been constructed in a parking zone where a vehicle can park, it shall be deemed as the deputy head of an apartment building building installed under the relevant provisions such as the Parking Lot Act. Whether the part outside the parking zone is a road used for general traffic, and whether the part is a road under Article 2 subparagraph 1 of the Road Traffic Act, depending on the management and use of the apartment complex, where the general police power for the purpose of maintaining traffic order, etc. is practically restricted, or where only a specific person or a person who has a specific building for the purpose of maintaining traffic order, etc. can use it as a place where the vehicle can park in an apartment complex. It shall be determined according to whether the passage part of the parking zone in an apartment complex where a vehicle can park within the "c" parking zone between the building and the building in the "c" space of the apartment complex is merely a passage for parking the vehicle, and it shall not be deemed that it is actually used as an unspecified person or vehicle passage, and it shall not be deemed as a road for general traffic as prescribed in Article 2 subparagraph 1 of the Road Traffic Act (see, 204.).

2) Determination

A) In full view of the overall purport of pleadings, Gap's 5, 6, 7, 17, 18, Eul's 3, 7 evidence, Eul's 18, and Eul's testimony, the apartment complex of this case consists of 13 Dongs. The apartment complex of this case has a fenced only two entrances in the apartment complex, and the entrance into the apartment complex is to pass by two entrances after the due door and after the second line. ② The fixed door of the apartment of this case is connected directly to the second line road of this case. The front door and the rear door are connected to the first line of this case. The front door are installed at the 0-dong parking zone of this case (the second line of this case's parking lot of this case's parking lot of this case's 10-dong road of this case's 10-dong road of this case's 10-dong road of this case's front line of passage between the front line and the front line of this case's parking lot of this case's 8-dong road of this case'.

B) However, in light of the relevant legal principles, the above acknowledged facts, the above cited evidences, and the whole purport of pleadings, which can be seen as seen earlier, the passage between the parking zone line in front of the 108 operation of the Plaintiff and the front part of the above guard site in front of the front of the front front of the 108 operation of the Plaintiff are deemed to be a place used for parking or passage by the residents living in the 107 Dong, 108 Dong, or the relevant visitors, along with the connection passage of the instant case, and it is insufficient to recognize the above recognized facts as a road as a place used for general traffic. Thus, the Plaintiff’s assertion pointing this out is with merit.

① The apartment complex of this case is installed along the boundary of a fence, and the apartment complex of this case is cut off from the outside. In order for a vehicle to enter the complex, only the entrance of the door and the rear door abutting on the contribution should be used.

② The passage of the vehicle inside the apartment complex of this case can be done using the main passage of this case connected to the air route through the string door and the rear door, the parking zone line installed and the passage between them located between each Dong and other Dong or wall, and the main passage of this case, and the main passage of this case, which connects the parking zone line of this case and the passage between the above parking zone of this case and the above parking zone of this case. However, since the remaining parts of the main passage of this case except the main passage of this case are only limited to the main passage of the vehicle of this case, there are only other entrances of the vehicle of this case, and there are no opposite parts, it is used only for the parking or passage of the relevant residents or visitors, and it is difficult to be used for the passage of ordinary vehicles.

③ The passage between the parking zone line of 108, which is the place where the Plaintiff was driving, or the front part of the above guard site is located in the front part of the apartment complex of this case, and the front part of the apartment complex of this case, and the 107 dong and 108 dong, which are surrounded by the 108 dong and 108 dong, are located in the front part of the guard site of this case. In order to enter it from the outside, the passage of this case is only the front part of the guard site of this case through the connecting passage of this case (the right side of the 108 dong and the 107 dong left side) and the passage of the 107 dong and the 108 dong and the 107 dong, the opposite part is only the passage of this case through the wall of this case. Therefore, there is no way to pass through the road. Therefore, the above driving place should be viewed as the passage of the 107 dong and 108 dong residents or the visitors.

④ Although the instant apartment building does not have a blocking facility to prevent the entry of ordinary vehicles, and even if the security guards do not control all the entering and leaving vehicles, there are six-level guard posts including the door door of the apartment house and the rear door, and the guard guard posts signs to prohibit the entry of external vehicles. Moreover, it is difficult to view that the instant apartment building is scheduled to allow a large number of unspecified traffic or parking spaces to be located in the instant apartment because the security guards are stationed in the non-permanent area and carry out the duty of securing parking spaces and monitoring for the prevention of crimes.

D. Sub-determination

Therefore, the disposition of this case issued on the premise that the place where the plaintiff driven the vehicle of this case is a road prescribed by the Road Traffic Act shall be revoked as it is illegal because there is no ground for disposition.

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is unfair on the grounds of its conclusion, it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the judgment of the court of first instance and accepting the plaintiff's

(Presiding Judge)

Freeboard Kim

x. Jark Sick Number

Site of separate sheet

Relevant statutes

director of the former Road Traffic Act (amended by Act No. 14617, Mar. 21, 2017)

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

1. The term "road" means any of the following roads:

(a) A road under the Road Act;

(b) A toll road provided for in the Toll Road Act;

(c) Rural roads under the Act on the Maintenance of Road Networks in Agricultural and Fishing Villages;

(d) Safety of an open area in which many and unspecified persons, motor vehicles, and horses are practically permitted to pass through;

and the place where it is necessary to ensure smooth traffic;

26. The term "driving" means roads (in the case of Articles 44, 45, 54 (1), 148 and 148-2, other than roads);

(including any place) Any motor vehicle or horse used in accordance with its original purpose and use (including any operation under the influence of alcohol). Article 44 (Prohibition of Driving under the influence of alcohol)

(1) While under the influence of alcohol, no one shall drive any motor vehicle, etc. (including construction machinery, other than construction machinery provided for in the proviso to Article 26 (1) of the Construction Machinery Management Act; hereafter the same shall apply in this Article and Articles 45, 47, 93 (1) 1 through 4, and 148-2).

(2) When deemed necessary for traffic safety and prevention of danger or when deemed that there exists a considerable reason to recognize that a person drives a motor vehicle, etc. while under the influence of alcohol in violation of paragraph (1), police officers may take a breath test to determine whether the driver was the subject of the influence of alcohol. In such cases, the driver shall comply with

Article 93 (Cancellation and Suspension of Driver's License)

(1) When a person who has obtained a driver's license (excluding any student license; hereafter the same shall apply in this Article) falls under any of the following subparagraphs, the commissioner of a district police agency may revoke the driver's license (including any driver's license to all extent; hereafter the same shall apply in this Article) or suspend the validity of the driver's license within the extent of one year according to the standards determined by Ordinance of the Ministry of the Interior: Provided, That where such person falls under subparagraphs 2, 3, 7 through 9 (excluding cases where the regular aptitude test period has elapsed), 12, 14, 16 through 18, and 20, the commissioner of a district police agency

1. When a person drives a motor vehicle, etc. while intoxicated, in violation of Article 44 (1);

3. Where there exists a reasonable ground to believe that he/she is under the influence of alcohol, in violation of the latter part of Article 44 (2).

the Gu and the police officer fails to comply with the measurement;

(2) When the Commissioner of a Local Police Agency intends to revoke a driver's license or suspend the validity of a driver's license pursuant to paragraph (1), he/she may impose penalty points on anyone who has violated traffic regulations or has caused traffic accidents in order to utilize it as the standard, according to the degree of violation and damage, etc., as prescribed by Ordinance of the Ministry of the Interior, and when the penalty points exceed a specified point during the period

effect of the Road Traffic Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 82 on September 21, 2016)

Article 91 (Standards, etc. for Revocation and Suspension of Driver's License)

(1) The standards for revoking or suspending a driver's license pursuant to Article 93 of the Act (including the standards for penalty points imposed according to the degree of violation and damage where traffic regulations are violated, or traffic accidents are caused) and the standards for prohibiting the driver's license pursuant to Article 97 (1) of the Act shall be as listed in attached Table 28.

[Attachment Table 28]

Criteria for Cancellation and Suspension of Driver's License (Related to Article 91 (1))

2. Criteria for revocation:

A person shall be appointed.