(영문) 부산지방법원 2011.1.28.선고 2010노4510 판결

According to the evidence submitted by the prosecutor (such as the defendant's court statement, appraisal result report, interrogation protocol of the suspect's interrogation as to the recordC of the preparation of the prosecutor, investigation report as to the defendant's preparation of judicial police officer, etc.), the court below found the defendant not guilty of this part of the facts charged of this case on the ground that the part of the facts charged of this case is proved sufficiently, and it erred in the misapprehension of legal principles

B. The defendant and prosecutor's assertion of unreasonable sentencing

The defendant asserts that the sentence of the court below (one year and two months of imprisonment) is too unreasonable, and the prosecutor asserts that the sentence of the court below is too unhued and unreasonable.

2. Determination:

First, we examine the prosecutor's argument of mistake or misunderstanding of legal principles.

A. Summary of this part of the facts charged

자동차 등의 운전자는 마약·대마 및 향정신성의약품 등 약물의 영향으로 정상적으로 운전하지 못할 우려가 있는 상태에서 자동차 등을 운전하여서는 아니됨에도, 피고인은 2010. 2. 18. 02:00경 부산 북구 ☆에 있는 ○마트 앞길에서 필로폰 약 0.03g을 커피에 타 마신 후 그와 같이 투약한 필로폰의 영향으로 정상적으로 운전하지 못할 우려가 있는 상태에서 부산 ○○사○○○○호 스타렉스 차량을 위 ○마트 앞길에서부터 부산 북구 ★에 있는 병원 앞길까지 1km 가량 운전하였다.

B. Judgment of the court below

Although the Defendant made a confession of this part of the facts charged in the investigative agency and this court, the confession constitutes the only evidence unfavorable to the Defendant, as there is no evidence to reinforce the confession, and thus, it cannot be considered as evidence of guilt. As such, this part of the facts charged constitutes a case where there is no

C. The judgment of this Court

(1) Article 150 subparagraph 1 of the Road Traffic Act provides that "A person who drives a motor vehicle, etc. under the influence of drugs in violation of the provisions of Article 45 shall be punished." Article 45 of the Road Traffic Act provides that "A driver of a motor vehicle, etc. shall not drive a motor vehicle, etc. under the influence of overwork, disease or drugs (referring to narcotics, marijuana, psychotropic drugs, and other drugs as determined by Ordinance of the Ministry of Public Administration and Security) other than under the influence of Article 44 and other reasons."

It is reasonable to see that the driver can only be punished for driving a motor vehicle under the condition that he/she is unable to drive a motor vehicle in a normal condition due to the fact that he/she was driving a motor vehicle under the administration of a motor vehicle under the legal text of the above provision. However, the crime of violation of the above provision of the Road Traffic Act is just established when he/she is driving a motor vehicle under the condition that he/she is unlikely to drive a motor vehicle in a normal condition due to the influence of drugs, etc. as a so-called dangerous crime, and

Therefore, if the defendant administered the normal quantity that shows symptoms of philophone medication and drives within the nearest time, the crime of violation of the Road Traffic Act, which is a dangerous offender, is established, and the defendant does not have to drive normally due to the influence of philophone medication. Thus, the defendant's statement that there was no symptoms at the time of driving a vehicle after philophone medication cannot prevent the establishment of the crime of violation of the Road Traffic Act.

(2) Subjective elements such as intention are also subject to confession. Thus, the elements that the defendant was in a situation that the defendant could not drive normally due to the administration of phiphones are also subject to confession.

In the above facts charged, "the driver of a motor vehicle, etc. shall not drive a motor vehicle in such a state that he/she is unlikely to drive the motor vehicle normally due to influence of drugs, such as narcotics, marijuana, and psychotropic drugs," and it is evident that the defendant led to confession of the above facts charged in the first instance trial and consented to the evidence of submission

(3) Even if the evidence of confession does not constitute a whole or essential part of the crime, it is sufficient to acknowledge that the confession of the defendant is true unless it is sufficient to acknowledge that the confession of the defendant is not a processed one, as well as indirect or circumstantial evidence can be used as evidence. In addition, if the confession and corroborative evidence are mutually consistent and it is possible to prove the facts of crime as a whole, it is sufficient to prove the evidence of guilt (see, e.g., Supreme Court Decisions 2005Do8704, Jan. 27, 2006; 2008Do2343, May 29, 2008).

According to the evidence duly adopted and examined by the court below (the police, prosecutor's statement, appraisal request table, etc. of thisC), thisC, around 01:35 on February 18, 2010, stated that it was found that the defendant was driving the said vehicle and the defendant was able to drive the said vehicle. On February 20, 2010, the response was made from the river taken from the defendant on February 20, 2010, on the part of the charge that the above evidence was in a situation where the defendant was unlikely to drive normally due to the phiphone medication, and there is sufficient evidence to reinforce the confession on the part of the charge that the above evidence was in a situation where the defendant could not drive normally due to the phiphone medication.

Therefore, the judgment of the court below which acquitted the defendant on the ground that there is no proof of crime, is erroneous in the misapprehension of legal principles as to the rules of reinforcement of confession, which affected the conclusion of the judgment, and thus, the prosecutor's misconception of facts

3. Conclusion

Thus, the prosecutor's appeal is reasonable, and thus, the prosecutor's appeal and the defendant's assertion of unfair sentencing.

Without omitting the judgment, the judgment of the court below shall be reversed pursuant to Article 364 (6) of the Criminal Procedure Act (the crime of violating the Road Traffic Act, which is found guilty as above, and the crime of violating the Act on the Control of Narcotics, etc. (fence) shall be sentenced to a single punishment as long as the crime of violating the Act on the Control of Narcotics, etc. (fence) is concurrent crimes under the former part

Criminal facts

On April 8, 2008, the Defendant was sentenced to 10 months in Busan District Court for a violation of the Act on the Control of Narcotics, Etc., and completed the execution of the sentence on November 7, 2008 in the Gapo Prison, and is not a person handling narcotics.

1. 피고인은 2010. 2. 18. 01:35경 부산 북구 ☆에 있는 ☆시장 내 개시장 앞길에서, 일회용주사기에 담긴 향정신성의약품인 메스암페타민(일명 필로폰, 이하 필로폰이라고 한다) 약 0.06그램을 이C에게 교부하였다.

2. 피고인은 2010. 2. 18. 02:00경 부산 북구 ☆에 있는 ○마트 앞길에서, 필로폰 약 0.03그램을 커피에 타 마시는 방법으로 이를 투약하였다.

3. 자동차 등의 운전자는 마약·대마 및 향정신성의약품 등 약물의 영향으로 정상적으로 운전하지 못할 우려가 있는 상태에서 자동차 등을 운전하여서는 아니됨에도, 피고인은 2010. 2. 18. 02:00경 부산 북구 ☆에 있는 ○마트 앞길에서 필로폰 약 0.03g을 커피에 타 마신 후 그와 같이 투약한 필로폰의 영향으로 정상적으로 운전하지 못할 우려가 있는 상태에서 부산 ○○사○○○○호 스타렉스 차량을 위 ○마트 앞길에서부터 부산 북구 ★에 있는 병원 앞길까지 1m 가량 운전하였다.

Summary of Evidence

1. Defendant's legal statement;

1. A protocol concerning the examination of the suspect by the prosecution against the accused or theC;

1. Requests for appraisal;

1. Each investigation report (the details of arrest of the accused and the market price of the Mesphere-pathy);

1. Previous convictions: Inquiries of criminal records, investigation reports (a copy of the judgment and a report confirming the fact of release);

Application of Statutes

1. Article applicable to criminal facts;

Articles 60(1)3, 4(1), and 2 subparag. 4(b) of the Act on the Control of Narcotics, Etc. (Delivery and Medication of Handphones, Selection of Imprisonment), Articles 150 and 45 of the Road Traffic Act (the point of operation after medication, the choice of imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act; proviso to Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010)

1. Additional collection:

The reason for sentencing under the proviso of Article 67 of the Act on the Control of Narcotics, Etc. is that the defendant made a confession of all the facts charged in this case and repents his mistake in depth, and that the amount of the penphone handled by the defendant in the crime in this case is 0.09g in total, and that the defendant does not repeat again again and lives faithfully for his wife and his dependent, etc., in favorable circumstances and circumstances for the defendant, again, during the period of repeated crime due to the violation of the Act on the Control of Narcotics, etc., and again, during the period of repeated crime due to the violation of the Act on the Control of Narcotics, etc., and the crime of violation of the Act on the Control of Narcotics, etc., (e.g., the crime of violation of the Act on the Control of Narcotics, etc., (e., imprisonment with prison labor), but a minor fine is only one time, but also one time the defendant has the history of being punished for driving without a license, such as the fact that there is no possibility that the defendant's family relation should be issued to the defendant as a normal sentence of the vehicle.

It is so decided as per Disposition for the above reasons.