2016No1107 Road Traffic Act (driving without a license) and the Road Traffic Act (Non-accidented Measures)

A

Both parties

Plusical ore (prosecution), gambling, and yellow interference (public trial)

Attorney J-won District Court Decision 2016Ra618 decided August 17, 2016

February 16, 2017

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

1. Summary of grounds for appeal;

A. Defendant

The sentence of the lower court (ten months of imprisonment) is too unreasonable.

(b) Prosecutors;

1) Even if there was no occurrence of scatterings due to traffic accidents caused by the Defendant of the misapprehension of the legal principles, it was necessary to take measures after the accident since there was a concern that additional traffic risks and obstacles may arise due to the string of a taxi. Nevertheless, the lower court acquitted the Defendant of this part of the charges, thereby adversely affecting the conclusion of the judgment.

2) The lower court’s sentence of unreasonable sentencing is too uneasible and unreasonable.

2. Judgment on the misapprehension of the legal principle by the prosecutor

A. Relevant legal principles

The purport of Article 54(1) of the Road Traffic Act is to ensure safe and smooth traffic by preventing and removing traffic risks and obstacles on roads, and not to restore damage to victims. In such cases, measures to be taken by drivers shall be appropriately taken according to the specific circumstances, such as the content of the accident and the degree of damage, and measures to the extent that is ordinarily required by drilling in a sound form (see Supreme Court Decision 2009Do787, May 14, 2009).

B. Determination

The following facts acknowledged by the evidence duly adopted and examined by the court below, namely, ① the defendant, while parked on the road, failed to take measures to confirm whether or not there is a person inside the damaged vehicle or whether or not there was any damage, etc., even though he was shocked on the right side of the vehicle parked on the road, ② the taxi driver who observed the above accident has concealed the vehicle of the defendant, and the defendant had escaped at a higher speed (Evidence record 27,91), ③ the defendant escaped at a higher speed (Evidence record 27,91), ③ the defendant escaped at a approximately 20 minutes range from about 4 to 5km, and the defendant violated the signal signals 2 to 3 times in the process, and did not take measures to ensure that there was no physical obstacle to the vehicle, even if the defendant did not immediately park and did not have any harm the vehicle due to a traffic accident and did not have any other obstacle to the vehicle, even if it did not have any other obstacle to the vehicle.

Nevertheless, the court below rendered a judgment of innocence on the facts charged for the reasons stated in its holding. The court below erred by misapprehending the legal principles as to Articles 148 and 54 (1) of the Road Traffic Act.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant and the prosecutor's allegation of unfair sentencing, and the following decision is rendered

Criminal facts

1. The defendant of the violation of the Road Traffic Act and the Road Traffic Act (free license) are those who, on October 16, 2007, issued a summary order of KRW 700,000,000,000,000,000,000 as a fine for the violation of the Road Traffic Act in the Jeonju District Court, Gun mountain support, and on September 21, 2015, issued a summary order of KRW 2 million by the same court as the same crime, and on January 18, 2016, violated the Road Traffic Act more than twice after being sentenced to a fine of KRW 7 million by the same court as the same crime.

Nevertheless, at around 02:00 on April 18, 2016, the Defendant driven a car without a driver's license, under the influence of alcohol concentration of approximately 0.115% from the 3km section from the OOE (OOE) road in Sinsan-si, Sinsan-si to the parking lot.

Accordingly, the defendant, who has violated two times or more while driving a motor vehicle under the influence of alcohol, was driving a motor vehicle under the influence of alcohol, while driving a motor vehicle at the same time without a driver's license.

2. Violation of the Road Traffic Act (unnecessary Measures after Accidents);

The defendant is a person who is engaged in driving a motor vehicle by obtaining a franchise.

At around 02:00 on April 18, 2016, the Defendant driven the said car while under the influence of alcohol, and led it to a progress in the front parking lot of the OOO or set in C at the time of OO.

In this case, the driver of the vehicle has a duty of care to prevent accidents in advance by safely driving the vehicle, such as taking the front, rear, left, and left well, and accurately operating the steering system.

Nevertheless, the Defendant, while under the influence of alcohol, was negligent due to the negligence of the Defendant’s failure to stop down the next week, and was parked at the entrance of the parking lot after the Defendant’s car and the left-hand side of the driver’s-hand side, followed the victim E’s car with the Furatom’s car and shocked the right-hand side.

Ultimately, the Defendant did not immediately stop and take necessary measures, even though the repair cost of KRW 719,651, such as the exchange, etc. of a set-offer due to the above occupational negligence, damaged the victim’s car.

Summary of Evidence

1. Defendant's legal statement;

1. K;

1. Statement of the police on the occurrence of traffic accident: Report on the occurrence of traffic accident, report on the actual situation, report on the control of drinking driving, report on the circumstantial statement of a driver's license, protocol of the driver's license, on-site photographs, estimates, black scamblings and photographs1. On-site photographs, previous records of the judgment: Criminal history records, investigation report (former records and attachment of the judgment), three copies, including written judgments

Application of Statutes

1. Article applicable to criminal facts;

Article 148-2(1)1 of the Road Traffic Act, Article 44(1) of the Road Traffic Act, Article 152 subparag. 1, Article 43 of the Road Traffic Act, Articles 148 and 54(1)1 of the Road Traffic Act (the point of unauthorized Driving), Articles 152 subparag. 1, 43 of the Road Traffic Act, Articles 148 and 54(1) of the Road Traffic Act (the point of failing to take measures after accidents)

Reasons for sentencing

The fact that the defendant recognized the crime of this case and reflected it, and that the defendant agreed with the victim E in the violation of the Road Traffic Act (unclaimed Measures after Accidents) is favorable.

On the other hand, the defendant committed the crime of this case again during the same period even though he/she was sentenced to a fine by committing the crime of violation of the Road Traffic Act (driving) two times during the suspension of execution, the defendant's blood alcohol level was high at the time of the crime of this case, the defendant was causing a traffic accident while drinking and driving without a license, and the defendant continued to flee while he/she was aware that he/she was able to injure the defendant, which is disadvantageous to the fact that the crime of this case was committed.

In addition, the defendant's age, character and conduct, environment, motive and circumstances leading to the crime, means and results of the crime, and all the sentencing conditions shown in the records and arguments of this case, such as the situation before and after the crime, shall be determined as the order.

Judges of the presiding judge

Judge Maximum United States;

Judges Kim Jong-ju