The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

However, for a period of two years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Defendant’s original decision on unreasonable sentencing (six months of imprisonment)

B. Prosecutor 1) As to the facts charged in this case by misapprehending the legal principles, the former Road Traffic Act (amended by Act No. 14617, Mar. 21, 2017; hereinafter the same applies)

Article 148-2 (1) 1 shall apply to the application of Article 148-2 (2). 2) Unfair sentencing (in original case: Imprisonment with prison labor for six months)

2. According to the records of ex officio determination, the defendant was sentenced to 10 months of imprisonment for larceny at the Seoul Southern District Court on March 19, 2020, and the judgment became final and conclusive on March 27, 2020.

Since larceny, which became final and conclusive in the judgment of the court below, etc. against the defendant, is a concurrent crime under the latter part of Article 37 of the Criminal Act, punishment for larceny shall be imposed in consideration of the equity between the case of concurrent judgment under the main sentence of Article 39(1) of the Criminal Act.

Therefore, the judgment of the court below cannot be maintained as it is.

However, there are such reasons for ex officio destruction.

Even if the above prosecutor's assertion of the misapprehension of the legal principles is still subject to the judgment of this court, it is examined.

3. Judgment on the misapprehension of the legal principle of prosecutor

A. Article 44(1) of the former Road Traffic Act prohibits a person from driving a motor vehicle, etc. under the influence of alcohol, and Article 148-2(1)1 of the same Act (hereinafter “instant provision”) provides that “any person who violates Article 44(1) on at least two occasions” and again, a person who drives a motor vehicle, etc. under the influence of alcohol in violation of Article 44(1) of the same Act shall be punished by imprisonment with prison labor for at least one year up to three years or by a fine of at least five million won but not exceeding ten million won.

The instant provision stipulates that the subject of the act is not simply a person who has violated the regulations on the prohibition of drinking alcohol driving at least twice, and does not limit the scope to cases where the person was sentenced to punishment or was convicted of a final judgment of conviction due to such violation.

This is a person who repeatedly violates the prohibition of drinking driving.