[1] The number of crimes committed when there are concurrent grounds for exception under the proviso of Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accidents (=one crime)

[2] Legislative intent of the crime of causing death or injury caused by dangerous driving, and relationship between the crime of violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents (=

[1] The grounds provided in the proviso of Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accidents, which can be prosecuted against the victim’s express intent, are not the elements of a crime of violation of Article 3(1) of the same Act, but the conditions of indictment. Therefore, even if the grounds provided in each subparagraph of the above proviso competes with each other, a crime of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents is established only when a single crime of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents is not established.

[2] In light of the legislative intent and language of the Act on the Aggravated Punishment, etc. of Specific Crimes due to drinking, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is intended to protect the personal legal interests of the victim's life and body by stipulating special cases of the crime of occupational injury and death, which are stipulated in Article 268 of the Criminal Act, in light of the following: (a) the frequent traffic accident caused by driving of a motor vehicle in the state of drinking and the damage to the victim's life and body is serious; and (b) it is not possible or easy to recover it before the occurrence of the accident; and (c) the special cases of the crime of occupational injury and death, which are stipulated in Article 268 of the Criminal Act, are added to the crime and thus, the crime of violation

[1] Article 3 (1) and (2) of the Act on Special Cases Concerning the Settlement of Traffic Accidents / [2] Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 3 (1) of the Act on Special Cases Concerning the Settlement of Traffic Accidents,

[1] Supreme Court Decision 2004Do4693 Decided November 26, 2004 (Gong2005Sang, 61) Supreme Court Decision 2006Do4322 Decided April 12, 2007 (Gong2007Sang, 738) / [2] Supreme Court Decision 2008Do7143 Decided November 13, 2008 (Gong2008Ha, 1723)

Defendant

Defendant and Prosecutor

Attorney Park Hong-chul

Seoul Central District Court Decision 2008No2915 Decided October 2, 2008

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the Prosecutor’s Grounds of Appeal

In determining the facts charged in this case, the lower court determined that the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is only a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the death or injury caused by dangerous driving), and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is not established.

The gist of the grounds of appeal by the prosecutor is that the prosecutor charged the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents at the rate of Article 3(1) and (2) proviso 7 of the Act on Special Cases concerning the Settlement of Traffic Accidents, but the court below ex officio determined that the violation of Article 3(8) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was not prosecuted by the prosecutor, is absorption into the crime of violation of Article 3(1) and (2) proviso 8 of the Act on Special Cases concerning the Settlement of Traffic Accidents, but did not separately determine the violation of Article 3(7) of the Act

On the other hand, the reason under the proviso of Article 3 (2) of the Act on Special Cases concerning the Settlement of Traffic Accidents, which can be prosecuted against the express will of the victim against the driver who committed the crime of bodily injury by occupational negligence or gross negligence due to traffic accident, shall not be an element of the crime of violation of Article 3 (1) of the same Act, but an element of the crime of violation of Article 3 (1) of the same Act concerning the conditions of indictment (see Supreme Court Decision 2006Do4322, Apr. 12, 2007). Thus, even if the reason under each subparagraph of the above proviso competes, the crime of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents is established, and it does not constitute separate

In addition, in light of the legislative intent and language of the Act on the Aggravated Punishment, etc. of Specific Crimes due to drinking, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is intended to protect the personal legal interests of the victim, such as safety of life and body by stipulating special cases of occupational injury and death as provided in Article 268 of the Criminal Act, given that the driver of a vehicle commits a crime as provided in Article 268 of the Criminal Act, with the content that the driver of a vehicle commits a crime as provided in Article 268 of the Criminal Act, in light of the situation such as the frequent traffic accident caused by driving in the state of drinking, the damage to the victim's life and body is serious, and it is not possible or easy to recover in the state prior to the occurrence of the accident, and the judgment of the court below to the same effect is just and there is no reason for the prosecutor's appeal to the same effect.

2. As to the Defendant’s ground of appeal

In a case where imprisonment for less than 10 years has been imposed against the defendant, the argument that the sentence of the court below is too unreasonable cannot be a legitimate ground for appeal. In such a case, the court below, which is a fact-finding court, did not properly examine the circumstances that are conditions for sentencing against the defendant, cannot be considered as the ground for appeal (see Supreme Court Decision 2001Do5304 delivered on December 27, 2001), and the defendant's ground for appeal cannot be accepted.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)