The case holding that the defendant cannot be deemed to have driven a motor vehicle at the time, and it does not fall under drinking under the Road Traffic Act, if the above motor vehicle was driven behind approximately 1.5 meters regardless of the defendant's will, because the motor vehicle was driven behind the motor vehicle, because the defendant carried behind the motor vehicle while driving the motor in order to operate the motor vehicle.

The case holding that the defendant cannot be deemed to have driven a motor vehicle at the time, and it does not fall under the drinking under the Road Traffic Act, if the above motor vehicle was driven behind approximately 1.5 meters regardless of the defendant's will, because the motor vehicle was driven behind the motor vehicle, because the defendant carried behind the motor vehicle while driving the motor in order to operate the motor vehicle.

Article 2 subparagraph 19 of the Road Traffic Act

Defendant

Defendant

Transboundary

Daegu District Court Decision 2004Gohap2874 Delivered on November 1, 2004

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

The defendant asserts that the court below found the defendant guilty of the facts charged in this case since he did not drive a control vehicle under the influence of alcohol as stated in the judgment of the court below, since he moved back to the control vehicle with the starting time of the control vehicle in order to operate a bus on the (automobile registration number omitted) Letoo or a car (hereinafter referred to as "control vehicle") at the time and place of the crime in this case as decided in the judgment of the court below, and therefore, the control vehicle was moving behind regardless of the will of the defendant, and even though he did not drive the control vehicle under the influence of alcohol as stated in the judgment of the court below.

2. The facts charged and the summary of the judgment below

The summary of the facts charged of this case is that "the defendant driven approximately 1.5 meters of 01:50 on April 8, 2004, at the front of "Woman Haak Haak-gu, Daegu Simsan 1, 1258-7" on the road in front of "Woman Haak-gu, Daegu Sung-gu, Daegu, about 1258-7", and the controlling vehicle was driven at approximately 1.5 meters of alcohol level (0.122% of blood alcohol level)." The court below found the defendant guilty of the facts charged of this case

3. The judgment of this Court

A. In light of the records, the following facts can be acknowledged in light of the Defendant’s statement in the trial court, in the original trial court and the police, in the witness’s statement in the party court and the police court of the first instance, in the witness’s statement in the party court and the police court of the second instance, in the witness Nonindicted 2’s report on detection of the driver and in-take driver’s circumstantial statement in the preparation of the judicial police assistant, in the statement prepared by the Defendant, in the statement prepared by the Defendant, in the form of the president of the SK (SK filing of the investigation record), in the statement prepared by the Defendant (in the form of Chapter 23 files of the investigation record), in the name of the May 7 representative driving guide compiled in Chapter 20 of the trial record, in the written confirmation of Nonindicted 3, in the written

(1) On April 7, 2004, the Defendant: (a) decided to provide meals with three the friendships of Nonindicted Party 1 and his girls at the restaurant, “Wol 1, 1258-7, Donsan-gu, Donsan-gu, Donsan 1, 1258-7; and (b) operated a control vehicle at around 19:00 on that day, and parked the control vehicle on the road in front of the restaurant; (c) the parking place was lower than the front of the control vehicle and the rear was lower than the direction so that the control vehicle can not be cut (see, e.g., the result of on-site inspection by this court).

(2) After that, the Defendant, at the above restaurant, took meals with Nonindicted Party 1 and three women’s friendship, and flasing alcoholic beverages at the rocketing Systrings and singing in the vicinity of the restaurant while playing together, sent the phone to Nonindicted Party 1 on April 8, 2004, from around 00:29 to around 01:36 the day, the Defendant called the “5-7 Agency Driving on behalf of his mobile phone (phone number omitted)” (number omitted), called the “5-7 Agency Driving on behalf of his/her cell phone”) and sent the substitute driver to the said restaurant along with Nonindicted Party 1 (see, e.g., Chapter 23 of the Investigation Records, Chapter 20, 21, 24, and Chapter 25 of the Trial Records).

(3) 그런데 피고인은 공소외 1이 위경련을 일으키고 심한 한기(한기)를 느꼈기 때문에 단속차량의 히터를 켜기 위해서 그 원동기의 시동을 거는 순간 단속차량이 덜컹덜컹 뒤로 진행하여 뒤쪽에 주차되어 있던 차량을 들이받자 놀라 자신도 모르게 순간적으로 전진과 후진을 반복하게 되었고, 대구수성경찰서 지산지구대 소속 경찰관 공소외 2는 2004. 4. 8. 01:50경 마침 그 부근을 순찰하던 중 위와 같은 상황을 발견하고 피고인을 검문하는 과정에 피고인이 술에 취한 사실을 발견하고 피고인이 음주운전을 한 것으로 단속하게 되었다.

(4) 한편, 단속차량은 수동변속기가 부착된 차량으로서 후진기어를 넣어 둔 채 시동을 걸 경우 사이드브레이크를 걸어 둔 상태에서 클러치를 밟지 않더라도 덜컹덜컹 후진하는데(이 법원의 현장검증 결과 참조), 피고인은 적발당시 단속차량을 주차하면서 후진기어를 넣어 둔 사실을 깜박 잊고 단속차량의 원동기의 시동을 걸어 자신도 모르게 단속차량이 뒤로 덜컹덜컹 움직이게 하였다.

B. The term "driving" under Article 2 subparagraph 19 of the Road Traffic Act means using a vehicle on the road according to its original purpose and use. Since the concept of driving as referred to in this article includes a subjective element in light of the provision, it means only an intentional act of driving, and it does not constitute driving in a case where a vehicle is driven without any intention or involvement of a person in the vehicle. Therefore, a person goes at the starting of a motor for other purposes without any intention to allow him to drive the vehicle. Therefore, it does not fall under driving in a case where a vehicle gets driven due to the power of driving the motor, such as the deflacing machine, etc., and the device necessary for the launch of the motor, such as the deflacing machine, etc., by means of the driving force of the motor, comes to the driving of the motor vehicle, or the motor vehicle becomes driven due to the condition of the road (see Supreme Court Decision 2004Do1109, Apr. 23, 2004).

However, according to the facts found in the preceding paragraph, a traffic vehicle needs to follow the vehicle even if it does not follow the clock while leaving the clock in the state where clocks while leaving the clock, considering its characteristics. Since the defendant was in the state of leaving the clock to run the clock at the time when the clocks of the clocks at the time when the clocks were controlled, it is deemed that the clocks came behind regardless of the will of the defendant. Thus, the defendant cannot be deemed to have driven the clocks at the time. In light of the facts recognized in the preceding paragraph, the defendant cannot be deemed to have driven the clocks at the time of the police station and the police station, the report on detection of the clock drivers prepared by Nonindicted 2, the report on detection of the clock drivers, and there is no other evidence to acknowledge it differently.

4. Conclusion

Therefore, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous and affected by the conclusion of the judgment. Thus, the defendant's appeal is justified and the judgment below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act and it is again decided as follows.

As seen earlier, the facts charged in the instant case constitute a case where there is no proof of crime as stated in the above reasons for reversal, and thus, acquitted under the latter part of Article 325 of the Criminal Act.

It is so decided as per Disposition for the above reasons.

Judges Lee Jae-soo (Presiding Judge)