Requirements for establishment of a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death or Injury caused by Dangerous Driving)

Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 17 and 268 of the Criminal Act

[Plaintiff-Appellant] 2008Do7143 decided Nov. 13, 2008 (Gong2008Ha, 1723)

Defendant

Defendant

Seoul Northern District Court Decision 2017No1 decided September 15, 2017

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

The grounds of appeal are examined.

1. As to the ground of appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death or Injury caused by Dangerous Driving)

A. Unlike the case of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death or Injury caused by Dangerous Driving) due to drinking, the crime of violation of the Road Traffic Act is limited to "the condition in which a driver makes it difficult to drive a motor vehicle under the influence of drinking," regardless of whether or not the blood alcohol level exceeds the statutory minimum standard level," and the act of causing the injury or death of a person while driving a motor vehicle under such condition is punished. This is because the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to drinking of alcohol requires causation between the constituent act of the crime of occupational injury and the occurrence of the result (see Supreme Court Decision 2008Do7143, Nov. 13, 2008, etc.).

B. According to the records, the Defendant divided the head of the Gu-dong one and the head of the Gu-dong, who was in front of the Gangseo-gu Seoul Metropolitan Government ( Address omitted) into the vehicle of the Defendant, and was trying to leave the alleyway and the head of the Gu-dong, Gangnam-gu, Seoul, with the right side from the left side of the Defendant’s vehicle to the part of the driver’s vehicle in front of the Defendant’s vehicle. The Defendant, at the vehicle, tried to say that the victim would get out of the vehicle. The Defendant stated that the victim would get out of the vehicle. The Defendant stated that the victim would have “dicked,” but the Defendant stated that the police officer called as the victim’s report was “hicked one time,” but the Defendant could not have called “hicked to the police station to board the vehicle on his own in compliance with the direction of the police officer, and that the victim did not have any accurate statement as to the driver’s instructions at the time of the accident.”

C. Examining these facts in light of the legal principles as seen earlier, it is difficult to view that the Defendant was engaged in abnormal driving or abnormal driving immediately before the accident, and it is difficult to deem that there was a drop in the Defendant’s ability to exercise caution or judgment at the time of the accident in light of the background leading up to the Defendant’s attitude and the police station immediately after the accident, and the details of the statement in the police investigation. Moreover, even according to the Defendant’s circumstantial statement, it is difficult to deem that the Defendant was in the state of primary driving. Ultimately, at the time of the accident, it is difficult to readily conclude that the Defendant was “in a state where normal driving is difficult due

Nevertheless, the lower court found the Defendant guilty of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death and Injury resulting from Dangerous Driving) among the facts charged in the instant case. In so determining, the lower court erred by misapprehending the legal doctrine on the elements for establishing a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death and Injury resulting from Dangerous

2. As to the ground of appeal on the violation of the Road Traffic Act (Refusal of measurement)

Examining the evidence duly admitted by the first instance court, which cited the reasoning of the judgment below, the court below was just in finding the Defendant guilty of violating the Road Traffic Act from among the facts charged in this case on the grounds as stated in its reasoning, and there was no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or failing to exhaust all necessary deliberations.

3. Scope of reversal

Of the judgment of the court below, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Death and Injury resulting from Dangerous Driving) shall be reversed on the grounds as seen earlier. The court below convicted this part and the charges on the violation of the Road Traffic Act (Refusal of Drinking Measures) and maintained the judgment of the court of first instance that sentenced the defendant to one punishment by deeming this as concurrent crimes in Article 37 of the Criminal Act

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)