[1] Whether the place of operating a vehicle in order to be punished under Article 107-2 subparagraph 2 of the former Road Traffic Act shall be the road under Article 2 subparagraph 1 of the same Act (affirmative)

[2] The meaning of "any place used for general traffic" as a concept of road under Article 2 (1) of the former Road Traffic Act

[3] The case holding that a police officer's failure to comply with a police officer's request for self-inspection on the ground that the driving place does not fall under a road under Article 2 subparagraph 1 of the former Road Traffic Act in the case of driving a motor vehicle parked in the on-road parking lot of an apartment in the apartment site to move to an underground parking lot of an apartment

[1] In order for a person subject to punishment under Article 107-2 of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199) to be "a person who has considerable reason to be deemed to be under the influence of alcohol and who fails to comply with a measurement by a police officer under Article 41 (2)" under Article 107-2 of the same Act, a person must be deemed to be in violation of the prohibition of driving under Article 41 (1) of the same Act. Thus, even if a driver drives a motor vehicle, etc. under the influence of alcohol, if the place where the driver driven the motor vehicle is not a road under Article 2 (1) 1 of the same Act, it shall not be deemed that the driver has violated the prohibition of driving under Article 41 (1) of the same Act, and therefore, it does not constitute a case of failing to comply with the

[2] "All places used for general traffic" as the concept of roads under Article 2 subparagraph 1 of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199) refers to an open area for the passage of many and unspecified persons or vehicles, where there is a public nature of the general traffic police authority for the purpose of maintaining order in traffic, etc., and therefore, only a specific person or a person with a specific building related thereto may use it and a place independently managed shall not be deemed to be included.

[3] The case holding that in the case of driving a motor vehicle parked on an apartment parking lot to move to an underground parking lot in an apartment, the act of failing to comply with a police officer's request for a re-performance measurement on the ground that the place of driving does not fall under a road under Article 2 subparagraph 1 of the former Road Traffic Act (amended by Act No. 5712 of January 29, 199) does not constitute a violation of the Road Traffic Act

[1] Articles 2 subparag. 1, 41(1) and (2), and 107-2 subparag. 2 of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199) / [2] Article 2 subparag. 1 of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199) / [3] Articles 2 subparag. 1 and 41(2), and 107-2 subparag. 2 of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199)

[1] [2] Supreme Court Decision 97Nu20755 delivered on March 27, 1998 (Gong1998Sang, 1233) / [2] Supreme Court Decision 94Nu9566 delivered on July 28, 1995 (Gong195Ha, 299) / [2] Supreme Court Decision 92Do1662 delivered on October 9, 1992 (Gong192, 3183), Supreme Court Decision 93Do828 delivered on June 22, 1993 (Gong193Ha, 2198), Supreme Court Decision 96Do1848 delivered on October 25, 1996 (Gong196Ha, 3500)

Defendant

Prosecutor

Daejeon District Court Decision 98No2407 delivered on April 23, 1999

The appeal is dismissed.

We examine the grounds of appeal.

In order for a person to be punished under Article 107-2 of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199; hereinafter the same) to be "a person who has considerable reason to be recognized as being under the influence of alcohol and fails to comply with a police officer's measurement under Article 41 (2)", a person must be deemed to be in violation of Article 41 (1) of the Act. Thus, even if a driver driving a motor vehicle, etc. with the driving of the motor vehicle is not a road under Article 2 (1) 1 of the Act, if the place of driving the motor vehicle is not a road under Article 2 (2) of the Act, it shall not be deemed to be a case where the driver fails to comply with the alcohol measurement under Article 41 (2) of the Act (see Supreme Court Decision 97Nu20755, Mar. 27, 199; 200.

According to the evidence of the judgment below, the court below found the defendant guilty of the violation of the Road Traffic Act, on the ground that the first instance court found the defendant not guilty of the violation of the Road Traffic Act since the defendant's driving of a motor vehicle under the influence of alcohol at the above location while driving a motor vehicle under the influence of alcohol to be moved to the underground parking lot in the above apartment space. The defendant's driving place of the motor vehicle is located in the above apartment space and only the above apartment residents or those who have a specific building related thereto can use the motor vehicle within the above apartment space, and it is an area managed autonomously by the above apartment residents, and the public nature of the police area under the influence of the traffic of an unspecified large number of people or vehicles is not recognized.

In light of the records, the fact-finding of the court below is just, and the judgment of the court below is just in light of the above legal principles, and there is no violation of the rules of evidence or misapprehension of legal principles as otherwise alleged in the ground of appeal.

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

Justices Lee Im-soo (Presiding Justice)