[1] In a case where a driver of a vehicle commits an act of driving a vehicle in violation of the duty to protect pedestrians in a crosswalk under Article 27 (1) of the Road Traffic Act, whether it constitutes a ground under Article 3 (2) proviso of the Act on Special Cases Concerning the Settlement of Traffic Accidents even if the above injury occurred to a third party, other than a pedestrian at a crosswalk (affirmative with qualification)

[2] The case holding that the above act constitutes a ground under Article 3 (2) 6 of the former Act on Special Cases Concerning the Settlement of Traffic Accidents, in case where a defendant was injured by a pedestrian Gap who was walking a crosswalk while driving a motor vehicle, and the victim Gap who was accompanied with him outside the crosswalk was pushed away, due to his shock, and sustained an injury

[1] The proviso of Article 3(2)6 of the Act on Special Cases concerning the Settlement of Traffic Accidents (hereinafter “Special Cases Act”) and the proviso of Article 4(1)1 of the same Act provide that “When a driver of a vehicle commits a crime resulting from occupational injury or injury by violating the duty to protect pedestrians in a crosswalk under the provisions of Article 27(1) of the Road Traffic Act” shall not apply to the case where the special provisions on punishment of Articles 3(2) and 4(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents do not apply to the case where “the driver of a vehicle commits a crime of occupational injury or injury by occupational negligence due to the act of driving in violation of the duty to protect pedestrians in the crosswalk under the provisions of Article 27(1)6 of the Road Traffic Act, and Article 27(1) of the Road Traffic Act provides that “if a pedestrian passes the crosswalk, the driver of the vehicle shall temporarily stop before the crosswalk and shall not obstruct or endanger the crossing, even if the driver’s act constitutes a direct violation of the proviso of Article 3(2)6 of the Road Act.

[2] The case holding that the above accident was caused by the defendant's negligence in the course of driving a pedestrian Gap on the crosswalk in violation of his duty of care under Article 27 (1) of the former Road Traffic Act (amended by Act No. 9845 of Dec. 29, 2009), and the injury of Eul was caused by the direct cause of the accident, and thus, the defendant's act constitutes a violation of the duty of protection of pedestrians of the crosswalk under Article 3 (2) 6 of the former Act on Special Cases Concerning the Settlement of Traffic Accidents (amended by Act No. 9941 of Jan. 25, 2010).

[1] Article 17 of the Criminal Act, the proviso of Article 3(2)6 of the Act on Special Cases concerning the Settlement of Traffic Accidents, the proviso of Article 4(1)1 of the Act on Special Cases concerning the Settlement of Traffic Accidents, Article 27(1) of the Road Traffic Act / [2] Articles 17 and 268 of the Criminal Act, Article 3(1) and proviso of Article 3(2)6 of the former Act on Special Cases concerning the Settlement of Traffic Accidents (Amended by Act No. 9941, Jan. 25, 2010); Article 27(1) of the former Road Traffic Act (Amended by Act No. 9845, Dec. 29, 2009)

Defendant

Prosecutor

Cheongju District Court Decision 2009No939 Decided October 28, 2009

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

The grounds of appeal are examined.

The proviso of Article 3(2)6 of the Act on Special Cases concerning the Settlement of Traffic Accidents (hereinafter “Special Cases Act”) and the proviso of Article 4(1)1 of the proviso to Article 3(2) of the Road Traffic Act provide that “When a driver commits a crime of bodily injury caused by negligence in the course of business due to an act of driving in violation of the duty to protect pedestrians at a crosswalk under the provisions of Article 27(1) of the Road Traffic Act” shall not apply to the special provisions concerning punishment provided for in Articles 3(2) and 4(1) main sentence of the Act on Special Cases concerning the Settlement of Traffic Accidents, and Article 27(1) of the Road Traffic Act provides that “When a pedestrian passes the crosswalk, the driver of any motor vehicle shall temporarily stop before the crosswalk so as not to interfere with the crossing or endanger the pedestrian.” Accordingly, the driver’s act of the motor vehicle in violation of the duty to protect pedestrians at the crosswalk under the provisions of Article 27(1)6 of the Road Traffic Act, and the driver’s act does not directly interfere with the duty to protect the pedestrian in question.

According to the reasoning of the judgment below, the court below maintained the judgment of the first instance that dismissed the appeal by applying the main sentences of Articles 3(2)6 and 4(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents and Article 27(1) of the Road Traffic Act to the following reasons: (a) it is reasonable to view that the motor vehicle driving the motor vehicle to be included not only in the driver's duty of care to pedestrians passing the crosswalk but also in the purpose of protecting the safety of pedestrians' lives and bodies, as well as to protect the safety of pedestrians passing the crosswalk; (b) the motor vehicle driving of the motor vehicle by the defendant is shocking the non-indicted passing the crosswalk of this case; and (c) even if the non-indicted was faced with the injury because the victim was passing through the crosswalk, the victim cannot be subject to protection under Article 3(2)6 of the Act on Special Cases concerning the Settlement of Traffic, and Article 3(2) and the main sentence of Article 4(1) of the Road Traffic Act.

However, according to the facts found by the court below, the accident of this case is caused by the occupational negligence on the part of the defendant, who is a pedestrian in the crosswalk under Article 27 (1) of the Road Traffic Act, for the non-indicted, who is a pedestrian in violation of his duty of care, and the injury of the victim is caused by the direct cause. Thus, in light of the above legal principles, it constitutes a violation of the duty of protection of pedestrians in the crosswalk under Article 3 (2) proviso 6 of the Act

Nevertheless, the court below erred by misapprehending the legal principles as to Article 3(2) proviso 6 of the Act on Special Cases concerning the Establishment of the instant crime and thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)