[1] Whether the act of an automobile driver's moving along the median line of the general road, which is not an expressway or motorway, is included in "a case where he intrudes the central line in violation of the provisions of Article 13 (3) of the former Act on Special Cases Concerning the Settlement of Traffic Accidents, or crosses, turns, or travels in violation of the provisions of Article 62 of the same Act" under Article 3 (2) 2 of the former Act (negative)

[2] In a case where a defendant who is a driver of a motor vehicle was prosecuted for violating the former Act on Special Cases Concerning the Settlement of Traffic Accidents on the ground that he/she sustained bodily injury on the part of the victim by driving ahead of a general road, other than an expressway or motorway, the case affirming the judgment of the court below and the measure of dismissing the public prosecution on the ground that he/she did not fall under any of the causes under Article 3 (2) proviso 2 of the same Act, and thus the occurrence of a traffic accident in the general road

[1] According to the proviso of Article 3(2)2 of the former Act on Special Cases Concerning the Settlement of Traffic Accidents (amended by Act No. 9941, Jan. 25, 2010; hereinafter “Road Special Act”), where a driver who commits a crime of injury by negligence in the line of duty due to a traffic accident commits the crime in violation of Article 13(3) of the Road Traffic Act by an act falling under “in cases where the driver intrudes the central line in violation of the provisions of Article 13(3) of the Road Traffic Act or cross, intern, or backwards in violation of Article 62 of the same Act, he/she may institute a public prosecution against the express intent of the victim. However, Article 62 of the former Road Traffic Act (amended by Act No. 10790, Jun. 8, 2011) provides that “the driver of a motor vehicle shall not cross, walk, or rear an expressway by driving the motor vehicle while driving the motor vehicle, etc., and Article 57 of the Road Traffic Act means only “the above expressway or exclusive road after the central line”.

[2] In a case where the Defendant, a driver of a motor vehicle, was indicted for violation of the former Act on Special Cases Concerning the Settlement of Traffic Accidents (amended by Act No. 9941, Jan. 25, 2010; hereinafter “Road Special Act”), on the ground that he/she sustained injury to the victim crossinging the road due to negligence driving ahead of a general road, other than an expressway or motorway, the case affirming the judgment of the court below and the measure of dismissing the prosecution on the ground that the Defendant’s withdrawal of his/her wish to punish the Defendant prior to the prosecution is not the case where the traffic accident occurred while driving in the general road does not fall under the case where “the latter part of Article 62 of the Road Traffic Act is in violation of the provisions of Article 62 of the Road Traffic Act” under the latter part of Article 3(2) proviso 2 of the School Special Act, and the case affirming the judgment of the court below and the measure.

[1] Article 3 (2) proviso 2 of the former Act on Special Cases concerning the Settlement of Traffic Accidents (Amended by Act No. 941, Jan. 25, 2010); Articles 13 (3), 57, and 62 of the former Road Traffic Act (Amended by Act No. 10790, Jun. 8, 201); Article 268 of the Criminal Act / [2] Article 268 of the Criminal Act; Article 3 (1) and proviso 2 of the former Act on Special Cases concerning the Settlement of Traffic Accidents (Amended by Act No. 9941, Jan. 25, 2010); Articles 13 (3), 57, and 62 of the Road Traffic Act (Amended by Act No. 10790, Jun. 8, 2011); Article 327 subparagraph 2 of the Criminal Procedure Act

Defendant

Prosecutor and Defendant

Attorney Abuse-ho

Daejeon District Court Decision 2009No3014-1 Decided February 19, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

According to the proviso of Article 3(2)2 of the former Act on Special Cases Concerning the Settlement of Traffic Accidents (amended by Act No. 941, Jan. 25, 2010; hereinafter “Special Act”), where a driver who commits a crime of bodily injury caused by negligence in the course of business due to a traffic accident commits the crime in violation of Article 13(3) of the Road Traffic Act and Article 62 of the same Act, he/she may institute a public prosecution against the express will of the victim. However, Article 62 of the former Road Traffic Act (amended by Act No. 10790, Jun. 8, 201) provides that “the driver of a motor vehicle shall not cross, cross, cross, or cross, the expressway by driving the motor vehicle while driving the motor vehicle, etc., and Article 57 of the Road Traffic Act (amended by Act No. 1071) provides that “the act of entering the right-hand side of the expressway or the motorway in violation of the former part of Article 13(3) of the Road Traffic Act shall not be included in the latter case of the Central Road Act.

According to the reasoning of the judgment below, the court below held that the road in which the traffic accident in this case occurred is not an expressway or motorway, and that the defendant's act of causing a traffic accident after going on the road at the location of the accident in this case, which is a general road, does not constitute "the case where the defendant violated the provisions of Article 62 of the Road Traffic Act" in the latter part of the proviso of Article 3 (2) of the School Traffic Act and does not constitute an "the case where the central crime is committed in violation of the provisions of Article 62 of the Road Traffic Act" in the latter part of Article 3 (2) of the Road Traffic Act, and that this part of the facts charged cannot be prosecuted against the victim's express intent under the main sentence of Article 3 (2) of the School

The above determination and measure of the court below are just in accordance with the above legal principles, and there is no error of law by misapprehending the legal principles as to the median offense under the special school law, contrary to the allegations in the grounds of appeal.

2. As to the Defendant’s ground of appeal

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the ground of unfair sentencing is allowed. Thus, in this case where a minor sentence has been imposed on the defendant, the argument that the amount of punishment is unfair is not legitimate

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 Min Il-young (Presiding Justice)