Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Child Protection Zone)

(Bodily Injury)

A

Maternhos (prosecutions), Materns (public trials)

Attorney B (Korean National Assembly)

2020, 14 October 14

The defendant is innocent.

1. The facts charged in this case

The Defendant is a person engaging in driving a QM6 car.

On April 28, 2020, the Defendant driven the said car at the speed of about 28.8 km from the F apartment room to the front of the E Taekwondo road located in Yeongsan-gu, Jeonju-si at the Jeonju-si. The Defendant continued to drive the said car at the speed of about 15:06 to the speed of about 28.8 km.

Since a crosswalk without signal lights is installed, and it is designated as a child protection zone, in such a case, there was a duty of care to check whether there is a child who is a driver of the vehicle and to safely drive the crosswalk by reducing the speed of the driver.

Nevertheless, the Defendant neglected this and went beyond the road by taking the victim H (the 10-year old) who dried the road along the crosswalk from the left side of the Defendant’s direction to the right side of the road without reducing the speed in front of the crosswalk.

As a result, the Defendant suffered injury to the victim due to the above occupational negligence, such as the outer side of the left-hand side and the bones of the internal side, which requires approximately eight weeks medical treatment.

2. Determination

A. Relevant legal principles

A driver of a motor vehicle cannot be deemed to have a duty of care to perform his/her duty of care to avoid the outcome of an ordinary predicted situation by fulfilling his/her duty of care (see Supreme Court Decision 85Do833, Jul. 9, 1985). In addition, in a criminal trial, the recognition of guilt should be based on evidence with probative value sufficient for a judge to have the authenticity of the facts charged to the extent that there is no reasonable doubt, and even if there is no such proof, the conviction cannot be determined even if there is a suspicion of guilt against the defendant.

(b) Details, history, etc. of the relevant statutes;

1) Article 5-13 subparag. 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as "the Act on the Aggravated Punishment, etc. of Specific Crimes"), which applies to the instant case, provides that the aforementioned Acts and subordinate statutes shall be punished by imprisonment with prison labor for not less than one year but not more than 15 years or by a fine not less than 5 million won but not more than 30 million won in cases where a child's protection zone violates the obligation to observe measures under Article 12(1) of the Road Traffic Act and to drive in consideration of safety of the child (hereinafter referred to as "the obligation of this case") in a child protection zone, and Article 12(1) of the Road Traffic Act provides that the traffic speed of the motor vehicle may be restricted within 30 km meters per hour in the relevant zone, and drivers of motor vehicles and horses in the child protection zone shall comply with the traffic safety obligation of the child under paragraph (1) of the same Article (referring to restricting the speed of passage within 30 km per hour).

2) The history of the laws and regulations governing the protection of children in road traffic

The former Road Traffic Act, amended by Act No. 4872 on January 5, 1995, newly established the "Article 11-2 (Designation and Management of Children Protection Zone)" and provided a legal basis for the designation of child protection zones to protect children from traffic accidents. The Act, amended by Act No. 5405 on August 30, 1997, was amended by Act No. 5405 on August 30, 1997.

The drivers of motor vehicles and riders of horses provided for in Article 11-2 (3) of the former Road Traffic Act shall observe the measures provided for in paragraph (1) and operate with due care to the safety of children in the child protection zone." At the same time, the provisions on the obligations of this case are prepared, and when the drivers of motor vehicles and riders of horses find out the danger of traffic accidents to children, such as crossing, sitting, standing, playing or playing on the road without guardians, they shall temporarily stop the road." Article 48-3 (Special Protection of School Buses) (Special Protection of School Buses) Paragraph (2) of the former Road Traffic Act provides that the driver of the motor vehicle driving in the opposite direction shall temporarily stop the road before reaching the school bus and then drive the motor vehicle after checking the safety of children (Article 12 (3) and Article 14 (1) and (2) of the current Road Traffic Act).

Despite the aforementioned designation and mandatory provisions of the child protection zone, the former Special Act on the Settlement of Traffic Accidents, amended by Act No. 8718, Dec. 21, 2007, as the need to protect children due to frequent traffic accidents in the child protection zone, excluded the cases where the bodily injury of children is caused by violating the duty to comply with the measures under Article 3(2)11 of the Road Traffic Act in the child protection zone under Article 12(3) of the Road Traffic Act and violating the duty to drive while paying attention to safety of children (i.e., the violation of the duty of this case in the child protection zone) from the special Act on the Settlement of Traffic Accidents. Since the need to protect children in the child protection zone still arises even after it violated the duty of this case in order to punish those who caused the death or injury of children in the child in violation of the duty of this case, the so-called "Road Traffic Act" was newly established, which is known as the "Act No. 1060, Dec. 24, 2019.

C. Specific determination

1) Facts of recognition

According to the evidence duly adopted and examined by the court, the following facts are acknowledged. ① The road of this case is a child protection zone, and a crosswalk is installed as a two-lane road from the sidewalk and the roadway without a separation facility. ② The traffic accident of this case occurred at a point outside the above crosswalk. ② At the time, the Defendant was driving the vehicle of this case at a speed of 28.8km at a speed of 28km at the time. However, the Defendant was driving the vehicle of this case at the front seat of the vehicle where the victim stopped on the opposite direction, coming down from the lower seat of the vehicle and crossing the vehicle, and fell down with the Defendant’s driver’s seat while crossinging the vehicle (see, e.g., investigation record 3, 7, 16th, and charge). (3) On the other hand, the vehicle of this case was stopped in the front direction opposite to the Defendant’s vehicle of this case at the time of emergency, etc., but the vehicle of this case was stopped in the front direction of the vehicle of this case before and after the traffic accident occurred.

2) In full view of the following circumstances revealed through the aforementioned facts and the records of the instant case, the evidence alone submitted by the prosecutor is insufficient to acknowledge that the Defendant was negligent in the course of the instant traffic accident, and there is no other evidence to prove otherwise.

① As seen above, the elements of the instant statute are the same as the statutory text of Article 3(2)11 of the proviso to Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accidents, and the content of the obligation is the same as that of Article 12(3) of the Road Traffic Act. Considering the above contents of the legal text, the history of the relevant statute, and the legislative intent of the instant statute, etc., the act of constituting the elements of the instant statute was able to be punished pursuant to Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents even before the establishment of the instant statute, and the instant statute is not a new punishment for acts that are not subject to punishment, but only a provision for aggravated punishment for existing acts, and thus, the legal principle on the duty of care applicable to the violation

② The instant road was set at a speed of 30 km per hour as a children’s protection zone. At the time, the Defendant was driving at a speed below that of 30 km. At the time, the Defendant did not appear to have a duty to temporarily stop in front of the instant crosswalk (Article 27(1) of the Road Traffic Act), and it is not clear what details the traffic regulations have been violated. The instant traffic accident report (on the investigation report) also states to the effect that there is no driver’s factor in relation to the cause of the instant accident (six pages of the investigation record), and the record states that the Defendant did not clearly indicate the specific contents of the duty of care that the Defendant violated, and only the “special duty of care higher than the duty of care in the ordinary road” is required (Article 69 of the Investigation Records).

③ In light of the state of stopping of the vehicle that the victim gets off at the time of the instant case, from the standpoint of the Defendant, it was difficult to view not only the victim getting out of the rear seat of the said vehicle, but also the rear seat door opened. The instant road has a lot of commercial buildings around the instant vehicle, and there were many vehicles parked on both side, and the instant road and the sidewalk do not seem to have children including the victim. Thus, it is difficult to expect that the victim would come out of the rear side of the vehicle to the road on the opposite side solely on the ground that the vehicle was parked on the opposite side by emergency, etc.

④ The victim, who was under 10 years of age, has been protruding from the front side of the vehicle left behind to the road, conflicted with the driver’s seat of the Defendant vehicle. Even in accordance with the Defendant’s black image, the victim did not take one second (54 pages of investigation record) while the Defendant’s vehicle did not seem to have come out of the road even at the time of the collision with the victim by the time of the collision with the victim.

⑤ According to the traffic accident analysis report of the Road Traffic Authority, the victim took about 0.7 seconds from the time of the collision to the point of the arrival of the vehicle boom, and the vehicle movement distance of the defendant during that time is about 5.6 meters. The time necessary for the suspension after recognition of danger at the speed of the defendant vehicle at that time is about 2.3 seconds and the stop distance is presumed to be about 13.2 meters (in the case of the traffic accident analysis report of the Road Traffic Safety Authority, about 54,5 pages). In such a situation, even if the defendant operates the steering gear or brake in any accurate manner, the accident in this case seems not to be avoided. In particular, even if the driver at the main place finds the danger situation of the front line and takes a hybrid, the "airtime", which is ordinarily considered to be from 0.7 to 1 second of the beginning of the movement, to the point of time of the collision between the defendant and the victim as soon as possible, it appears that the victim did not know the collision.

(6) In principle, an intentional act is required for the formation of a crime, and even if the facts which comprise the constituent elements of a crime are not known, if such act is caused by neglect of normal attention, law shall prevail.

If there is a provision, punishment can be imposed (Articles 13 and 14 of the Criminal Act). Therefore, in order to establish a crime of negligence, it is necessary to clearly specify what is the normal caution, i.e., the duty of care, i., the duty of care, which the person in violation of the duty of care. However, in a specific case, in order to recognize a violation of the duty of care, the duty of care should be comprehensively defined, i.e., what is the duty of care at the time, i., whether there is predictability and possibility of avoidance of the accident, i.e., what is the duty of care at the time, i., whether the defendant has a specific duty of care at the time, and whether there is a possibility of avoidance of the accident. Furthermore, in determining whether there is negligence, the duty of care in the child protection zone should not be broadly interpreted in light of the seriousness of the consequence of the occurrence of the consequence of the injury to the child in question, and the duty of care to protect the child in question should be interpreted to be more reasonable than the duty of temporary suspension of the child under the Road Traffic Act.

3. Conclusion

Thus, the facts charged of this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of innocence is not publicly notified under the proviso of Article 58 (2) of the Criminal Act. It is so decided as per Disposition.

Mobilization of judges;

Judges Jeong-ju

judge inducedd