(영문) 부산지방법원 2009.8.20.선고 2009노1352 판결

Although the Defendant transferred the instant automobile to C1 on July 2005, and C1 was liable for the moving and insurance of automobiles, the judgment of the court below which convicted the Defendant of the facts charged in the instant case, is erroneous in the misapprehension of the fact that the judgment was affected by the conclusion of the judgment.

B. Unreasonable sentencing

Even if the defendant is found guilty, the sentencing of the court below (the fine of KRW 500,00) is too unreasonable in light of the fact that C1, not the defendant, operated the motor vehicle of this case, and the defendant is faced with difficult economic circumstances.

2. Determination

A. Judgment on the assertion of mistake of fact

1) Article 46 of the Guarantee of Automobile Accident Compensation Act provides that "the owner of a motor vehicle who operates a motor vehicle not covered by mandatory insurance" shall be punished, and "the owner of a motor vehicle" in Article 2 subparagraph 3 of the Act refers to the owner of the motor vehicle or a person entitled to use the motor vehicle, who is "the person who operates the motor vehicle for his/her own interest" and "the person who operates the motor vehicle for his/her own interest" refers to the person who is in the position of the person in general and abstract responsibility to control the operation of the motor vehicle and to enjoy the benefit therefrom. Thus, even if the owner of the motor vehicle gratuitously lends the motor vehicle to a person in close personal relationship, such as his/her relative relationship, barring special circumstances, even if the owner of the motor vehicle rents the motor vehicle without compensation, he/she still has a profits from the operation control or operation of the motor vehicle to the owner of the vehicle

It cannot be viewed as “the owner of the instant motor vehicle” (see, e.g., Supreme Court Decision 91Da3918, May 10, 1991). 2) Although the owner of the instant motor vehicle is the Defendant, the actual operator of the instant motor vehicle is a matter as to whether the Defendant is the owner of the instant motor vehicle as C1.

From the court below to July 2005, the defendant provided C1 with a transfer registration document of ownership transfer to C1, and argued that C1 used the above motor vehicle from July 2005 to December 2006 and scrapped it. C1 also prepared and presented a confirmation document that he purchased the instant motor vehicle from the defendant on June 20, 2005 and scrapped it on December 28, 2006, but the following facts acknowledged by the evidence duly investigated and adopted by the court below are acknowledged by the police, and the defendant borrowed the instant motor vehicle to C1 on September 2005 and was returned to C1 at around the end of 2 to March 2005, which was the same as the defendant's statement by the police, and the defendant still returned to C1 the above vehicle at one time and returned it to the police, and the defendant still asserted that C1 had no credibility and credibility of the instant motor vehicle in light of the circumstances that the police officer's right to use the motor vehicle at one time before and after its delivery.

3) Even if the Defendant actually transferred the instant vehicle to C1, it includes not only cases where a de facto control relationship exists between the owner and the driver, but also cases where a conceptual control relationship exists, either indirectly or indirectly, through a third party’s right. As such, the light that even after selling the vehicle, left the registration title as it is.

By examining the actual relationship between the seller and the buyer, it is necessary to determine whether the seller can be deemed to have the responsibility of the seller to interfere with the operation of the motor vehicle or to control and manage the motor vehicle by social norms (Supreme Court Decision 94Da38212 delivered on January 12, 1995). In particular, the main elements of the decision on the operation control are payment system and delivery of documents for registration of transfer, etc. (see Supreme Court Decision 80Da591 delivered on June 10, 1980), and the defendant submitted the "application for registration of change of motor vehicle" and the "Delegation sheet" to the court below, but the applicant and the proxy of the above application submitted the "C2" rather than C1, and the defendant still has the responsibility to manage the motor vehicle in the name of the owner of the motor vehicle in this case, because there is no other evidence to deem that the defendant provided the transfer registration documents of the motor vehicle to C1, the defendant still has the responsibility to manage the motor vehicle in this case.

Therefore, the defendant's argument does not seem to have any mother or reason.

B. Determination on the assertion of unfair sentencing

In light of the fact that it is difficult to guarantee the compensation for damages to the victim in the event of a traffic accident because an automobile which is not covered by mandatory insurance is operated, and other various circumstances that are conditions for sentencing as prescribed in Article 51 of the Criminal Act, including the Defendant’s age, character and conduct, and environment, even if considering the circumstances asserted as grounds for appeal by the Defendant, the lower court’s sentencing against the Defendant is too unreasonable, and thus, the Defendant’s allegation of unfair sentencing is without merit.

3. Conclusion

Therefore, the defendant's appeal 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.