[1] The meaning of "the unknown whereabouts" under Article 78 (3) of the Road Traffic Act

[2] The case holding that where the defendant does not reside in his/her domicile but his/her resident registration is the same domicile, the disposition of suspension of driver's license issued in lieu of the defendant's notification is legitimate, and thus the act of driving a motor vehicle during the suspension period constitutes a non-exclusive driving

[1] "A person whose location is unknown" under Article 78 (3) of the Road Traffic Act means a person subject to a disposition who resides in his/her domicile and stays in his/her domicile on a temporary basis, not a case where he/she is unable to confirm his/her address, etc. in a normal manner or where it is impossible to send him/her, such as the service of a written prior notice of the suspension and cancellation of driver's license under Article 53-2 (1) of the Enforcement Decree of the Road Traffic Act. It is reasonable to interpret that even though the person is confirmed that he/she does not reside in his/her domicile on the driver's license ledger, he/she is unable to confirm his/her address, etc. in a normal way

[2] The case holding that where the defendant does not reside in the domicile of the driver's license register but his resident registration is the same domicile, the disposition of suspension of driver's license issued in lieu of the defendant's notification is legitimate, and thus the act of driving a motor vehicle during the suspension period constitutes a non-exclusive driving

[1] Article 78 (3) of the Road Traffic Act, Article 53-2 (1) of the Enforcement Rule of the Road Traffic Act / [2] Articles 78 (3) and 152 subparagraph 1 of the Road Traffic Act, Article 53-2 (1) of the Enforcement Rule of the Road Traffic Act

[1] Supreme Court Decision 2004Do6583 Delivered on December 10, 2004

Defendant

Prosecutor

Incheon District Court Decision 2004No1073 Delivered on November 24, 2004

The non-guilty portion of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Incheon District Court Panel Division.

We examine the grounds of appeal.

1. Of the facts charged against the defendant, the part concerning the violation of the Road Traffic Act (unlicensed Driving) is that "the defendant is driving without a driver's license between February 9, 2004 and February 19, in Incheon Gyeyang-gu, the first (water omitted), including the defendant's office, in Incheon." The court below determined that "the defendant was not guilty because the second (2) notification was not made on November 8, 2003, and the second (3) notification was not made by the defendant's office on December 29, 200, and the second (4) notification was not made on December 6, 200, and it was difficult to view that the defendant was not guilty because the second (3) notification was not made on December 19, 200, and the second (4) notification was not made on December 20, 200, and the second (4) notification was not made only on the ground that the defendant's address and the second (4) notification was not made on December 29, 2004.

2. However, the part of the court below's decision that the disposition of this case's license suspension is null and void due to no legitimate public notice is acceptable for the following reasons.

Article 78 (3) of the Road Traffic Act provides that "When the driver's license is revoked or suspended pursuant to paragraph (1) of this Article or when the driver's license is revoked pursuant to paragraph (2), the Commissioner of the Local Police Agency shall notify the person who has obtained the driver's license or student license of the fact as prescribed by Ordinance of the Ministry of Government Administration and Home Affairs: Provided, That if it is impossible to notify the person who has obtained the driver's license because his/her address is unknown, the notification may be replaced by a public notification to the police agency having jurisdiction over the domicile stated in the driver's license for 10 days." The term "not known whereabouts" refers to a case where the person subject to the disposition resides in his/her domicile, and it is not possible to confirm the person's address or send it by ordinary means such as delivery of a notice of suspension or cancellation of the driver's license" under Article 53-2 (1) of the Enforcement Decree of the Road Traffic Act. Thus, even though the person is confirmed that he/she does not reside in the driver's license register, it shall be interpreted as a case where the person's address can be confirmed (see.).

According to the records, the decision of the suspension of driver's license of this case was sent by registered mail to the Nam-gu, Nam-gu, Busan, the domicile of the defendant on the driver's license ledger, and the reason for return was also the fact that the return was not the addressee's absence or the closed door absence (the trial record 127 pages) and the defendant's resident registration was at the time of the same domicile. However, the defendant had already left the above domicile and had already been at the time been at the time, but he had been residing in the first (number omitted) of Gyeyang-dong, Incheon, Gyeyang-gu, Incheon (the investigation record 27 pages, 270 pages, 332 pages, 364 pages) from September 6, 2003, which was the transfer of the driver's license of this case and had been resided in the first (number omitted). Thus, it can be seen that the defendant did not reside in the above registry at the time but could not be confirmed by the ordinary method such as the resident registration, etc. or could not be notified in lieu of the permit authority's.

Nevertheless, the court below's decision that the notice of the disposition of this case was not effective because it was just because it did not state any reason for return in the return of the above second notice, and that the notice of the disposition of this case was not valid because it was not yet known to the defendant. The court below erred by misapprehending the rules of evidence or misapprehending the legal principles as to the validity of the disposition of driver's license suspension. The ground of appeal pointing this out has merit.

3. Therefore, the non-guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-won (Presiding Justice)