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

[2] The case holding that the judgment of the court below which judged otherwise is erroneous in the misapprehension of legal principles, although the "road in apartment complex" where the defendant driven a vehicle with drinking alcohol constitutes a road under the former Road Traffic Act

[1] Article 2 subparagraph 1 of the former Road Traffic Act (amended by Act No. 9845 of Dec. 29, 2009) provides that the term "road" means all the roads under the Road Act, the roads under the Toll Road Act, and other places used for general traffic. Here, the term "all the places used for general traffic" refers to an open area actually used for the traffic of an unspecified person or vehicle, which has the public nature of the general traffic police power for the purpose of maintaining the traffic order, and the place where only the specific persons or those related to them can use it and are independently managed shall not be included.

[2] The case holding that the judgment of the court below that judged otherwise is erroneous in the misapprehension of legal principles in light of the situation of the management and use of apartment buildings, such as that the "road in apartment complex," which the defendant driven a vehicle driving with drinking alcohol, is directly connected to the outside of the fourth line, there is no restriction on the passage of external vehicles, and there is no separate parking manager, etc., and it constitutes a road under the former Road Traffic Act (amended by Act No. 9845 of Dec. 29, 200

[1] Article 2 subparagraph 1 of the former Road Traffic Act (amended by Act No. 9845 of Dec. 29, 2009) / [2] Article 2 subparagraph 1 of the former Road Traffic Act (amended by Act No. 9845 of Dec. 29, 2009), Article 44 (1) of the former Road Traffic Act (amended by Act No. 10382 of Jul. 23, 2010), Article 44 (2) of the Road Traffic Act, Article 150 subparagraph 2 of the former Road Traffic Act (amended by Act No. 9580 of Apr. 1, 2009)

[1] Supreme Court Decision 9Do2127 delivered on December 10, 199 (Gong2000Sang, 251) Supreme Court Decision 2002Do6710 Delivered on June 25, 2004, Supreme Court Decision 2005Do3781 Delivered on September 15, 2005, Supreme Court Decision 2005Do7293 Delivered on December 22, 2005

Defendant

Prosecutor

Cheongju District Court Decision 2010No129 decided May 12, 2010

The judgment below is reversed, and the case is remanded to Cheongju District Court Panel Division.

We examine the grounds of appeal.

1. Article 2 subparagraph 1 of the former Road Traffic Act (amended by Act No. 9845 of Dec. 29, 2009) provides that the term "road" means all the roads under the Road Act, the roads under the Toll Road Act, and other places used for general traffic. Here, the term "all the places used for general traffic" refers to an open area actually used for the traffic of an unspecified person or vehicle, where there is a public nature of the general traffic police right for the purpose of maintaining the traffic order, etc., and only the specific persons or those related to them may use it and independently manage it (see, e.g., Supreme Court Decisions 2003Do4807, Nov. 28, 2003; 2002Do6710, Jun. 25, 2004).

2. According to the reasoning of the judgment below, the court below found that the defendant parked a vehicle which has a gallon 70 Ga, Chungcheongbuk north 70 on September 29, 2009 (hereinafter omitted) on the street in front of 401 gallon road in the apartment complex of this case and walking about 100 meters on the same day, and entered the above vehicle within the apartment complex of this case after passing through the underground parking lot of this case and going again into the underground parking lot of this case, and driving the road between 403 Do 406 Ga and 406 gate in the apartment complex of this case with three wheels, but it is difficult for the defendant to use the apartment complex of this case as the entrance and the fence to the boundary of the apartment complex of this case, and it is difficult for the defendant to use the apartment complex of this case as the passage or the surrounding area of the apartment complex of this case, and it is not necessary to use the apartment complex of this case as the entrance or the surrounding area of the apartment complex of this case, and its entrance or the parking lot of this case.

3. However, according to the records, although the above apartment complex has a retaining wall and fence installed in the boundary area other than one entrance, it is cut off from the outside. However, the defendant's passage in the apartment complex of this case is directly connected to the outside road of the entrance and exit from the 4rd line, coming from and going from the entrance and exit of the apartment complex of this case. ② However, the above entrance does not have a guard, there is no structure or blocking for controlling access, and there is no sign prohibiting access, and the security guards do not have any restriction on passage of the outside vehicle because they do not control access vehicles, ③ even if the apartment complex of this case is not a resident of this case, the defendant entered the above apartment complex of this case and parked a vehicle on the street of 401, and even if some teachers of nearby elementary school have parked in the parking lot of this case, it does not have a traffic control right to enter the apartment complex of this case, and even if the above apartment complex of this case were parked in the parking lot of this case, it does not have a relatively wide access to the apartment complex of this case.

Nevertheless, the court below found the defendant not guilty on the ground that the passage roads in the above apartment complex do not fall under the roads under the Road Traffic Act, and eventually, it erred by misapprehending the legal principles on roads under the Road Traffic Act, which affected the conclusion of the judgment. Therefore, the prosecutor's assertion pointing this out

4. 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 Lee Hong-hoon (Presiding Justice)