The defendant's appeal is dismissed.

1. The summary of the grounds for appeal is as follows: (a) the Defendant was guilty of the facts charged in this case even if he did not have any intention to drive drinking, and even if he did not have any intention to drive drinking, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2. Determination

A. Article 2 subparag. 26 of the Road Traffic Act provides that "driving" means using a vehicle on the road in accordance with its original usage method. Article 2 subparag. 18 of the same Act provides that "motor vehicle means a motor vehicle driven by using a motor without using a railroad or installed line." Thus, it is necessary to use a motor vehicle in accordance with its original usage method. In light of the original function of the motor vehicle and the legislative intent of the Road Traffic Act, the motor vehicle is used in order to newly generate a motor vehicle on the road.

For the purpose of doing so, it is insufficient to start the engine only, to complete the so-called operation, and thereby be sufficient (see Supreme Court Decision 98Da30834, Nov. 12, 1999, etc.). In light of the spirit of substantial direct psychologicalism adopted by our criminal litigation law, the first instance judgment on the credibility of the statement made by the first instance witness was clearly erroneous.

Except in exceptional cases where it is deemed significantly unfair to maintain the first instance judgment on the credibility of the statement made by the witness of the first instance trial, or in full view of the results of the first instance examination and the results of the additional examination of evidence by the time the appellate trial ends, the appellate court is a witness of the first instance trial.