Special intimidation 2018No1205 (Violation of the Road Traffic Act under Name of Preliminary Crime)

A South 60. Symar

Prosecutor

Lee Jong-soo (Court Prosecution) (Court of First Instance) and Kim Jong-sung (Court of Public Trial)

Attorney* (Korean National Assembly)

Ulsan District Court Decision 2018Ma755 Decided November 9, 2018

May 3, 2019

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,00,00.

Defendant who has converted 100,000 won into one day when the above fine has not been paid;

shall be confined in a workhouse.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of the grounds for appeal;

The defendant had a warning against the victim's vehicle, and returned to the lane after cutting down the victim's vehicle in extremely close conditions, and had the victim left the road by stopping on the side. The series of acts constitutes "Notice of Harm and injury in the crime of intimidation", and it can be recognized that the defendant had an intention of intimidation. Thus, the judgment of the court below which acquitted the defendant of the facts charged is erroneous in misunderstanding of facts and misunderstanding of legal principles.

2. Ex officio determination

A. A. A prosecutor took the previous facts charged concerning special intimidation in the trial as the primary charges and took the name of the crime as "violation of the Road Traffic Act", "Article 151-2, and Article 46-3 of the Road Traffic Act", and this court granted an application for permission for modification of a bill of indictment to add the facts charged as follows, and thus, the judgment of the court below is no longer maintained. The prosecutor's assertion of misconception of facts and misapprehension of legal principles is still subject to the judgment of the court of this Court, despite the reasons for ex officio reversal.

[The facts charged as added in Preliminary]

No driver of any motor vehicle, etc. shall repeatedly or continuously commit any act of causing danger to traffic by causing any danger or injury to other persons in violation of road traffic regulations without justifiable grounds.

그럼에도 불구하고 피고인은 2017 . 12 . 16 . 21 : 30경 울산12바◎◎◎◎호 택시를 운전 하여 울산 남구 □□동에 있는 ●●고 교차로를 ▲▲▲ 방면에서 ○○사거리 방면으로 진행하던 중 , 피해자 B ( 34세 ) 운전의 33라○○○○호 베르나 승용차가 자신의 진로를 방해하였다는 이유로 화가 나 약 3초간 피해자에게 경적을 울리고 , 방향지시등을 작동 하지 아니하고 갑자기 피해자의 승용차 전방으로 끼어들어 지그재그로 운행하는 등 연 이어 위협함으로써 피해자에게 교통상의 위험을 발생하게 하는 난폭운전을 하였다 .

3. Judgment on the Prosecutor’s misunderstanding of facts and misapprehension of legal principles

A. Main facts charged

피고인은 울산 12바◎◎◎◎호 택시를 운전하는 사람으로서 , 2017 . 12 . 16 . 21 : 30경 위험한 물건인 위 택시를 운전하여 울산 남구 □□동에 있는 ●● 동사무소 앞 편도 4 차로 도로를 ▲▲▲ 방면에서 ○○동 방면으로 운전하던 중 피해자 B ( 34세 ) 운전의 33 라△△△△호 베르나 승용차가 자신의 진로를 방해하였다는 이유로 화가 나 수회 경적 을 크게 울린 후 위 베르나 승용차를 따라가 부딪힐 것처럼 좌 · 우측으로 흔들며 운행 을 하고 , 야음사거리 부근에서 정차를 하게 되자 창문을 열고 피해자와 피해자의 처인 C ( 여 , 33세 ) 에게 " 대가리를 뺀다 " 라고 큰소리로 욕설을 하였다 .

Accordingly, the defendant carried dangerous objects and threatened the victim.

B. The judgment of the court below

At the lower court, the Defendant: (a) although the Defendant was overtaking the victim’s vehicle, the Defendant did not drive the victim’s vehicle on either side and left side, such as the entry in the indictment of this case; and (b) claimed that the wife of the victim, who stopped at the time, took a bath to the Defendant first, with the desire of the victim. The lower court determined that the Defendant’s act, such as the entry in the indictment, seems to have caused a certain degree of uneasiness or displeasure; (c) however, it is difficult to recognize that the above act of the victim constitutes a threat of harm sufficient to the extent that the victim would generally cause harm and injury to the victim, or that the Defendant had a criminal intent to inflict harm on the victim’s life or body, etc. at the time, to a certain extent.

C. Judgment of the court below

1) Facts of recognition

According to the evidence duly adopted and examined by the court below and the trial court, the following facts can be acknowledged:

1 ① 피해자는 ▲▲▲ 주차장에서 나와 우회전을 하여 3차로로 진입하였는데 , 피고 인은 피해자의 차량이 우회전하는 것을 보고 경적을 울리며 다가왔다 .

1. (2) The victim is straighten in three lanes as it is, and the speed was high in order to avoid the vehicle of the defendant, and the defendant also passed at a two-lane with the same speed while driving in the same two-lane, and the victim is overtaken, and he returned to the two-lane in front of the right-hand vehicle. However, the victim has passed over the two-lane.

Since then, the defendant has to turn to the left immediately after the route.

③ After that, the Defendant’s vehicle was placed in a two-lane in order to turn to the left, and the victim’s vehicle turned to the left and stopped by changing the vehicle line into the left-hand side. The Defendant left the window, made the horses on the part of the victim’s vehicle, and accordingly the victim’s wife took a bath to the Defendant.

④ The overall purport of the victim’s statement from an investigative agency to the court of the court below is that “the victim made a right-hand turn,” and the Defendant’s vehicle sees the victim’s vehicle to light light.

The victim's vehicle continued to have been approaching the victim's vehicle, and the victim's vehicle was pushed ahead and pushed ahead with the victim's vehicle, so that the victim's vehicle could be pushed into the vehicle's vehicle, thereby harming the victim's vehicle by driving.

2) Relevant legal principles

In order to establish a crime of intimidation, the content of the harm and injury notified must be sufficient to cause fear to ordinary people, but it does not require that the other party realistically feel fear, in full view of the various circumstances before and after the act, such as the offender’s tendency, surrounding circumstances at the time of notification, and the degree of friendship and status between the offender and the other party, etc. However, the other party’s act of notifying the harm and injury in the crime of intimidation is ordinarily based on ordinary language, or, as a case may be, a threat of harm and injury may be made at a same time (see Supreme Court Decision 2009Do5146, Sept. 10, 2009).

3) Specific determination

According to the above facts, the Defendant made a right-hand and obstructed the course of the victim. Considering that the Defendant’s act of overtaking the other victim, the Defendant appears to have improved speed to overtake the other victim, and returned to the lane again after changing the vehicle to the front of the victim. The aforementioned act of overtaking and changing the vehicle in itself does not in itself lead to uneasiness and fear for the other driver, and accordingly, the other driver was unable to drive his vehicle due to his failure to drive his vehicle without his own evaluation, and caused the other driver to feel a big fear, and thus, it constitutes a threat of harm and injury, which constitutes a crime of intimidation. The victim also stated that the Defendant’s act was threatened by the Defendant’s driving, and support the Defendant’s act after stopping. The prosecutor’s act in violation of the Road Traffic Act, the Defendant’s act after stopping, and the Defendant’s emotional attack at the time of the Defendant’s act after stopping, and the prosecutor’s act did not have any reason to recognize the facts charged separately.

4. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and it is again decided as follows.

In other words, the reasons for the ruling

Criminal facts

피고인은 울산 12바○○○○호 택시를 운전하는 사람으로서 , 2017 . 12 . 16 . 21 : 30경 위험한 물건인 위 택시를 운전하여 울산 남구 □□동에 있는 ●● 동사무소 앞 편도 4 차로 도로를 ▲▲▲ 쪽에서 □□동 방면으로 운전하던 중 피해자 B ( 34세 ) 운전의 33라 △△△△호 베르나 승용차가 자신의 진로를 방해하였다는 이유로 화가 나 수회 경적을 크게 울린 후 위 베르나 승용차를 따라가 부딪힐 것처럼 좌 · 우측으로 흔들며 운행을 하고 , □□사거리 부근에서 정차를 하게 되자 창문을 열고 피해자와 피해자의 처인 C ( 여 , 33세 ) 에게 " 대가리를 뺀다 " 라고 큰소리로 욕설을 하였다 .

Accordingly, the defendant carried dangerous objects and threatened the victim.

Summary of Evidence

Omission

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Articles 284 and 283(1) of the Criminal Act; selection of fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

The Defendant, who is engaged in the business of taxi drivers, was threatened with the victim by taking advantage of the vehicle with the victim’s complaint against the driver’s driving. Such an act by the Defendant is a very dangerous act that may cause the victim to have a considerable fear as well as causing a considerable accident. The Defendant is merely causing the victim to a considerable danger. The Defendant also in the court, but does not go against the victim’s mistake, and has the record of criminal punishment due to a sckless driving similar to this case. The Defendant’s age, character, character, environment, and circumstances after the crime, etc. In addition, all of the sentencing conditions specified in the records of the instant case, including the Defendant’s age, character, and behavior, environment

Judges Kim Jong-gu

Judges Kim Jong-sung

Judge Lee Il-il