Whether a person who is prosecuted for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes can be punished by occupational negligence or death without modification of public prosecution.

Even though there is no evidence to acknowledge that the facts charged constitute "abstinence" for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, a guilty crime by occupational negligence included in the facts charged can be admitted without

Article 250 of the Criminal Act, Article 5-3 of the Aggravated Punishment, etc. of Specific Crimes, Article 45 of the Road Traffic Act, Article 268 of the Criminal Act

Defendant

Defendant

Gwangju District Court Decision 76 High Court Decision 128

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment without prison labor for a period of one and half years.

One hundred and seventy days out of the detention days prior to the declaration of the original judgment shall be included in the above sentence.

The gist of the first point in the grounds for appeal by the defendant's defense counsel is that the defendant operated the bus without knowing that the victim non-indicted 1 was able to do so at night in front of the bus driven by the defendant, and therefore, the defendant had no intention to kill the non-indicted 1, but the court below found the defendant guilty of murder by misunderstanding the facts and thereby affected the judgment. Thus, the court below saw the defendant's homicide, i.e., evidence at that time, the evidence

1. Statement in the original judgment by the defendant;

1. Each statement in the original trial rendered by Nonindicted 2, 3, 4, 5, and 6

1. Details of the interrogation protocol of the accused prepared by the prosecutor;

1. Each entry in the statement of Nonindicted 2, 4, and 5 prepared by the prosecutor and the senior judicial police officer to handle their affairs, and each entry in the statement of Nonindicted 6 prepared by the judicial police officer to handle their affairs

1. Contents of the report of inspection by the original court;

1. Comprehensively taking account of the contents of the written confirmation of death against Nonindicted 1 prepared by the doctor Nonindicted 7, the Defendant acknowledged the fact that, when Nonindicted 1, a passenger was able to depart from the bus bus stops located in Yong-gun, Yong-gun, Yong-gun on August 23, 1976 (vehicle number omitted) around 19:40, he was a driver of the bus affiliated with luminous passenger, and when he tried to depart from the bus to Gwangju, the victim Nonindicted 1 interfered with the proceeding of the bus, and if he continued to move out the bus at night in front of the bus, he was aware of the fact that he was killed in the vehicle without an interesting appraisal and continued to operate 104 meters away from the bus without an interest base, he was in front of the left side of the bus, and caused the her to die with the her mother in front of the left side of the bus, and caused the her to die with the her mother in front of the her mother, etc.

However, until the police investigation is completed, the defendant started driving the bus without knowing that the victim non-indicted 1 was about the night in front of the bus driven by the defendant, and the non-indicted 1 had no intention to kill him as the above bus. On August 23, 1976, the defendant was able to kill the victim non-indicted 1's left-hand-hand-hand-hand-hand-hand-off and chest-hand-hand-hand-off on the road at the Young-gun, Young-gun, Sin-gun on the street around 19:40 on August 23, 1976, with the front right-hand-hand-hand-hand-off of the victim non-indicted 1's (vehicle number omitted) passenger who was driven by the defendant and caused the death of the victim with the same 21:30 late 21:30. However, even if the defendant knew that the above bus was the front-time of the above non-indicted 1, the court below should first examine the record of the intention to kill the above bus and evidence that it started.

1. Statement in the original judgment by the defendant;

1. Entry of the suspect examination record of the accused prepared by the prosecutor;

1. Each statement in the original trial by the witness Nonindicted 3, 5, and 6

1. Each entry in the statement of Nonindicted 5 prepared by the prosecutor and the senior judicial police officer for handling their affairs and the statement of Nonindicted 6 prepared by the senior judicial police officer for handling their affairs

1. It is clear that the entries in the written confirmation of the death of Nonindicted 1 prepared by the doctor Nonindicted 7 do not constitute a material to recognize that “the homicide’s intention” is “the homicide’s intention.”

And it can be viewed as evidence that conforms to the point of "the intention of the deceased";

1. Each statement in the original trial by Non-Indicted 2 and 4 of the witness.

1. Descriptions on each statement of Nonindicted 2 and 4 prepared by the prosecutor and the senior judicial police officer in handling their affairs;

1. The contents of the inspection protocol by the lower court are as follows: First, the summary of each written statement of Nonindicted 4, the witness of the lower court, the prosecutor, and Nonindicted 4 in the process of handling the affairs with the judicial police, and the summary of each written statement of Nonindicted 4 in the process of handling the affairs with the judicial police, Dongin (Nonindicted 4) was seated with the passenger of the above bus in the second chair.

(1) When intending to start the bus, Nonindicted Party 1 considered the end from the front of the bus on the side of the driver and considered that Nonindicted Party 1 passed ahead of the bus (However, the written protocol of the written protocol of the written protocol of the written protocol of the inspection, stating that Nonindicted Party 1 was aware that Nonindicted Party 1 was able to keep the front of the bus even if Nonindicted Party 1 was kept in front of the bus, and that Nonindicted Party 1 was able to keep the front of the bus in front of the bus, when the Defendant 4 to 5 meters away from the left hand of Nonindicted Party 1, while driving the bus slowly) and Nonindicted Party 1 was aware that Nonindicted Party 1 was the front of the bus.

(2) At the time of approximately 100 meters of the bus’s progress, the Defendant told Nonindicted 1 that Nonindicted 1 “I am more than I am more than I am saw.” The Defendant did not know that Non-Indicted 1 was waiting for the bus heading the bus at night.

(c) When the above bus passes through the Agricultural Cooperative Co., Ltd. (hereinafter referred to as approximately 50 meters from the point of departure) and the agricultural village branch, the above (3 to 4 and 5 persons) was shaking noise, and the above (a) portion is not consistent, contradictory, and contradictory when the bus starts, even though the above portion was considered to be the front side of the bus, it cannot be concluded that the defendant also considered the above facts.

This is because according to the statement of the Dongin in the preparation of the disposition of judicial police officer's affairs, it is stated that the defendant started the bus by inserting the left hand hand of the non-indicted 1 with the glass window in the left hand hand of the defendant. According to the on-site inspection protocol of the court below, the "on-site inspection protocol of the court below," it can be seen that the part of the back of the non-indicted 1's head, which return to every end of the bus at night, can be seen as emphasizing the ability of due care, but it can not be easily seen that the driver can easily see another place due to decentralization of the power of care, and the number of driving can not be seen at all." In general, when the driver's license of the non-indicted 1 handles the change speed of the vehicle in order to start the vehicle, it cannot be concluded that the non-indicted 1's contents cannot be found to be a "on-site inspection report" of the court below.

(2) The statement and contents in the part of the court below are as follows: when collecting testimony between the defendant and the non-indicted 1, it is acknowledged that the defendant did not have a serious vision between the non-indicted 5 and the non-indicted 8, etc., and according to the testimony of the non-indicted 8 of the trial witness, the defendant could not have heard that the non-indicted 1 had a desire to do so. Thus, it is difficult not only to believe the statement of the non-indicted 4 that the defendant made such a desire, but also it is difficult to believe that the defendant had a desire to do so. Even if the defendant took a bath as such, it is difficult to say that the place where the above bus was 10 meters in progress and 10 meters in advance of the above bus, it cannot be concluded that the non-indicted 1 had the intention to take the front of the above bus, and even if based on the above determination and the subsequent determination, it cannot be seen that there was no intention that the defendant had a desire to use the above language, the materials and the materials that the defendant had no knowledge.

Finally, the statement and contents of the part of the bus, i.e., the fact that the defendant was aware of the sound of the bus and the scambling of the hand, cannot be admitted as evidence that the defendant was aware that the non-indicted 1 was scam at the front night of the bus.

The reason is that the bus driver is determined to demand the boarding of the bus as the bus driver to see the sound to the bus in operation, barring special circumstances. The reason is that the bus operated by the defendant is originally a bus for the interest in Gwangju, and there is a fuel for drilling of the fuel storage of the bus from among the roads in operation, which originally led to the interest in Gwangju, and thus intends to go back to Gwangju, without having to leave the destination. As the non-indicted 1, as a ticketper of another bus, tried to make the above bus driven by the defendant late departing, it is reasonable to view that the defendant cannot stop the bus to get on board because a person near the departure point is harming his sound and harming his hand, and there is no other evidence to recognize that the above fact was put up by the defendant with the purport that the bus was being boomed by the preceding person of the bus.

In addition, the latter part of the above (1) and (2) shall not be admitted as evidence to acknowledge that the "the intention of the person who died" was merely the abstract statement of Non-Indicted 4.

Second, the summary of the contents of each statement of Nonindicted Party 2 prepared by Nonindicted Party 2's testimony, prosecutor, and judicial police officer's disposition of the court below's witness's testimony is considered to be a summary of each statement of Nonindicted Party 2, and the Dong (Nonindicted Party 2) reported that Nonindicted Party 1, etc., etc., at the center night of the bus prior to and after the bus's night time (the written statement of the public prosecutor's protocol includes "the non-indicted 1's physical condition that it stopped while stopping" is stated as "the non-indicted 1's sound" in the written statement of the public prosecutor's protocol), and that it is thought that the defendant continued to operate the above bus, even though he was sicking of his hand, and that it is thought that the defendant intentionally pushed Nonindicted Party 1, and that there is no evidence that the defendant knew that he was waiting for the above bus, and even if the non-indicted 2 was waiting for the above bus, there is no evidence to support the defendant's body's conclusion that "the defendant did not have any intention."

In addition, in light of the two points that points out the following, the above evidence, which appears to be consistent with the intention of the person in question, is no longer believed, and the first point is that according to the contents of the statement of Nonindicted 4, 2's testimony and Nonindicted 9, 4, and 2 in the process of handling affairs by the judicial police officer, Nonindicted 2, etc. of the court below's witness 4, 2's testimony and the statement of the statement of Nonindicted 9, 4, and 2 in the process of handling affairs by the judicial police officer, Nonindicted 2, etc., sent a bus to the public in the public place except for the above facts between Nonindicted 1 and the defendant, the defendant was not believed to have committed an accident, and the defendant was not believed to have committed an accident, and the first mad of the defendant's first pad "I am? ? ? ? ? ? ? ? ? ? the second point is that there is no reason to discover that the defendant did not murder Nonindicted 1 in the public place.

If so, the court below erred in the judgment of the court below or erred in the misconception of facts which found the crime of murder without using evidence, and affected the judgment, so the defendant's first ground for appeal of mistake of facts is justified and the decision of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the decision of the court below is again delivered as follows.

(Criminal Facts)

The defendant is a person working as a driver of a light source passenger (vehicle number omitted) bus belonging to the defendant. On August 23, 1976, the defendant tried to return the above bus to Gwangju City at around 19:00 after driving the above bus and driving it in Gwangju-si, and tried to return it to Gwangju-si due to a malfunction of fuel storage at around 19:00, when he returned to a bus stop in Young-gun, Young-gun, and he tried to return it to Gwangju-si due to a malfunction of fuel storage, and on the ground that the bus belonging to the above bus stops overlaps with the operation hours of the above bus belonging to the above light-dong passenger by not later than 19:40, and tried to start the bus again after receiving a request from the non-indicted 1 (21) to the same time as that of the above bus belonging to the above light-dong passenger, but the non-indicted 1 again started with the above bus's duty of care and continued to start it to the left-hand side of the above bus after the night.

(Abstract of Evidence)

The facts of the judgment, as the case may be, shall be

1. Statement to the effect that the defendant has stated in the original judgment and the trial court;

1. Among the second trial records of the court below, the statement to the effect that it conforms to the facts in the judgment among the witness examination protocol against Nonindicted Party 2.

1. As a whole, it can be recognized by taking into account the statements that correspond to the private person as indicated in the judgment from among the contents of the written confirmation of death against Nonindicted 1 prepared by the doctor Nonindicted 7.

(Application of Acts and subordinate statutes)

As the so-called "comfort" in the law falls under Article 268 of the Criminal Act, the defendant is selected to be sentenced to imprisonment without prison labor within one year and six months, and according to Article 57 of the same Act, 170 days out of the number of detention days prior to the sentence of the original judgment shall be included in the above sentence.

(Judgment on the main facts charged)

The main facts charged by the prosecutor are as follows: (a) the defendant was engaged in driving service of the above-mentioned bus number No. 1; (b) the non-indicted 1 was unable to use the above-mentioned bus as evidence; (c) the non-indicted 1 was unable to use the above-mentioned bus at the time when he was found to have been unable to use the same-mentioned bus at around 19:0; (d) the non-indicted 1 was unable to use the same-mentioned bus at the time as the non-indicted 1's non-indicted 1's testimony because it was found that the non-indicted 4's statements were not made by the non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 20's non-indicted.

(Judgment on Preliminary Facts)

The facts charged by the prosecutor are that the defendant's non-indicted 1 was involved in the operation of the bus at the time of the accident, and the defendant's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 3's non-indicted 2's non-indicted 3's non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 3's non-indicted 1's non-indicted 3's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 3's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted's non-indicted 1's non-indicted's non-indicted 1's non-indicted 20's non-indicted 2's non-indicted 1's non-indicted

Therefore, the preliminary charges that do not recognize the "domination intention" should be returned to the case where there is no proof of crime.

However, since a party member is found guilty of the crime of occupational injury resulting in death, which is included in the above preliminary facts (this point is the provision that a driver of the relevant vehicle who commits a crime under Article 5 (3) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and runs away without taking measures under Article 45 (1) of the Road Traffic Act, such as aiding a victim, and thus, if it is not recognized that the "abstinence" is not recognized, the crime of occupational injury resulting in death can be recognized without taking the procedures for modification of the indictment) separate from the main facts charged and the sentence of innocence is not to be pronounced.

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

Judges Lee Sung-sung(Presiding Judge)