In a case where Defendant, a first-class driver’s driver’s license holder, was prosecuted for violation of the former Road Traffic Act on the ground that he did not undergo an aptitude test within the regular aptitude test period, the case holding that the lower court erred by misapprehending the legal doctrine, even though it was reasonable to deem that the Defendant did not know that he was negligent in confirming the arrival of the period of the aptitude test, and that there was an incomplete intention

In a case where Defendant, a first-class driver’s driver’s license holder, was prosecuted for violation of the former Road Traffic Act (amended by Act No. 10382, Jul. 23, 2010) on the ground that he did not undergo an aptitude test within the regular aptitude test period, the case holding that the lower court erred by misapprehending the legal principles as to willful negligence in an omission crime and thereby making a judgment on the part of the lower court which acquitted Defendant on the ground that it is reasonable to deem that Defendant did not know that Defendant was negligent in confirming the arrival of the aptitude test period and did not undergo an aptitude test within the regular aptitude test period, in light of the fact that it is reasonable to deem that the driver’s driver’s license holder did not make an effort to the extent easily known even if he did not take the part of the driver’s license, and that there was an intention to neglect or to

Articles 87(1) (see current Article 87(1) and (2)1), 93, and 156 subparag. 8 (see current Article 160(2)7) of the former Road Traffic Act (Amended by Act No. 10382, Jul. 23, 2010);

Defendant

Prosecutor

Gwangju District Court Decision 2012No344 Decided June 20, 2012

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

We examine the grounds of appeal.

1. The facts charged in the instant case reveal that “Although a person who has obtained a Class 1 driver’s license has undergone a regular aptitude test conducted by the head of the institution in charge of the driver’s license test within the regular aptitude test period under the conditions as prescribed by the Presidential Decree, the Defendant did not undergo the regular aptitude test without justifiable grounds between February 26, 2010 and August 25, 2010, the regular aptitude test period.”

2. The lower court found the Defendant guilty on the ground that: (a) a notice of guidance on the regular aptitude test sent to the Defendant two times by the management body of the driver’s license test was sent by general mail; and (b) the confirmation of the fact that the Defendant’s wife submitted a notice of guidance on the test period for the driver’s license test was stated that “the notice of guidance on the test period for the driver’s license test was not received at all”; and (c) the Defendant was unlikely to know at any time if he did not receive a notice of the conditional driver’s license decision from the Commissioner of the Gwangju Provincial Police Agency on June 20, 2011, it cannot be presumed that a notice of guidance on the regular aptitude test sent by the management body of the driver’s license test was actually delivered to the Defendant; and (d) there is no evidence to prove the fact that the Defendant was aware of the regular aptitude test period in advance; and (e) the Defendant

3. A. However, in light of the evidence duly adopted by the first instance court and the lower court and the following circumstances, it is difficult to accept the said determination by the lower court in light of the following circumstances.

(1) When a driver's license is issued, a person who obtains a driver's license notifies him/her of his/her duty to undergo a regular aptitude test, and the driver's license does not include any disadvantage such as revocation of the license when the period of aptitude test under the Road Traffic Act does not provide that the driver's license shall be separately notified of when and when the period of aptitude test under the Road Traffic Act does not provide that the driver's license shall be subject to an advance notification by the competent agency for the convenience of the people. Thus, the driver's license holder shall be deemed to be aware of the fact that the driver's license should undergo an aptitude

② Therefore, it is reasonable to view that the driver’s license holder has the intention to neglect or to allow the result of not receiving the aptitude test within the period of the aptitude test, in which he/she did not make any effort to easily confirm even when he/she takes full view of the driver’s license.

③ In addition, according to Road Traffic Act and subordinate statutes, a driver’s license may be renewed by taking an aptitude test for one year after the lapse of the period of the aptitude test, rather than immediately revoking the license, and the driver’s license shall be notified to the person subject to the aptitude test. During that period, the subject is merely subject to a fine not exceeding 60,000 won (a penal provision for a person who does not undergo an aptitude test as amended by Act No. 10382, Jul. 23, 2010; a penal provision for a person who does not undergo an aptitude test was changed to a fine for negligence). As such, if an aptitude test is not conducted within the period of the aptitude test, there seems to be a reason to neglect to confirm the

In light of these circumstances, even if the defendant was negligent in confirming the arrival of the period of the aptitude test and did not know that the period has arrived, it is reasonable to deem that the defendant did not receive the aptitude test within the period of the aptitude test.

Nevertheless, the lower court determined otherwise by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or exceeding the bounds of the principle of free evaluation of evidence against the logical and empirical rules, thereby adversely affecting the conclusion of judgment by misapprehending the legal doctrine on the willful negligence of the said criminal.

B. Meanwhile, the court below's decision on December 24, 2008 (2008Do9900, which the court below decided on December 24, 2008) is not appropriate to invoke the case as to whether driving without a license under the Road Traffic Act, even though the license was revoked because it did not undergo a regular aptitude test.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)