The judgment of the court below is reversed.

The defendant is innocent.

1. The lower court found the Defendant guilty of violating the Road Traffic Act (driving) that “The Defendant was under the influence of alcohol with a blood alcohol level of 0.089%” was not guilty on the ground of the facts charged in the instant case, and that “the Defendant was under the influence of alcohol with a blood alcohol level of 0.05% or more” included therein was guilty.

As to this, a prosecutor filed an appeal against the guilty portion only by the defendant, and the prosecutor did not file an appeal. In such a case, the acquittal portion for the reason is also transferred to the appellate court along with the guilty portion in accordance with the principle of no appeal. However, the acquittal portion for the reason was in fact separated from the object of the attack and defense between the parties (see, e.g., Supreme Court Decision 2004Do5014, Oct. 28, 2004). Thus, the conclusion of the judgment of the court below is followed with respect to the acquittal portion for the above reason, and

2. The summary of the grounds of appeal is merely 500 meters of the blood alcohol level of the Defendant before the Defendant drives, and it is difficult to view that the Defendant’s blood alcohol level at the time of driving was 0.05% or more of the punishment depositee. Since the Defendant measured the blood alcohol level of 0.183% due to additional drinking at home after the completion of driving, the Defendant’s evidence submitted by the prosecutor alone does not recognize that the Defendant was driving while under the influence of alcohol above 0.05%, the lower court erred by misapprehending the facts charged.

3. Determination

A. On April 21, 201, the Defendant issued a summary order of KRW 1,500,000 as a crime of violating the Road Traffic Act in the Suwon District Court’s Ansan Branch on April 21, 201, and on May 16, 201, the Defendant was sentenced to KRW 7,00,000 as a crime of violating the Road Traffic Act (driving) in the Suwon District Court’s Ansan Branch on May 16, 201, and Article 44(1) of the Road Traffic Act.