Defendant

Both parties

Kim Jong-chul (prosecution) and Gyeong-chul (Public trial)

Law Firm LBnB Partners et al.

Seoul Central District Court Decision 2019Da5236 Decided October 22, 2019

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

Although the defendant cannot be applied to the crime of refusing to take a drinking alcohol test, the court below erred by misunderstanding the fact.

2) Note 1) Legal principles

Article 148-2 (1) of the Road Traffic Act and Article 148-2 (2) of the same Act shall apply to the defendant. The court below erred in the misapprehension of laws against the defendant.

3) Unreasonable sentencing

The punishment sentenced by the court below (one year and two months of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence sentenced by the court below is too uneasible and unfair.

2. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

A. Judgment on the assertion of mistake of fact

In light of the evidence duly admitted and examined by the court below and the non-indicted witness's statement in court, it can be sufficiently recognized that the defendant refused to measure alcohol as stated in the facts charged. Therefore, the defendant's assertion of mistake of facts is without merit.

B. Judgment on the misapprehension of legal principles

In full view of the grounds for, and details of, the amendment of Article 148-2(1) of the Road Traffic Act, and the intent of the amendment, it is reasonable to apply Article 148-2(1) of the amended Road Traffic Act to the Defendant. Therefore, the Defendant’s assertion of misapprehension of the legal doctrine on a different premise is without merit.

3. Determination on the grounds of unfair sentencing by both parties

It is advantageous to the fact that the defendant is against the defendant, and that family members and branch members want the defendant's wife.

On the other hand, it is extremely high that the defendant has been punished for the same crime, and that the nature of the crime is extremely poor in light of the circumstances before and after the crime of this case, and that the defendant committed the crime of this case during the same repeated crime period is disadvantageous.

In full view of the above circumstances and other factors, including the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, etc., and the fact that there is no special change in circumstances that may change the sentencing of the lower court after the lower judgment, the lower court’s sentence is too heavy or unreasonable. Therefore, the Defendant and the prosecutor’s assertion of unfair sentencing is without merit.

4. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Yu Dong-dong (Presiding Judge)

1) The Defendant, even at the lower court, made a legal assertion to the same purport that the Road Traffic Act was amended to the same effect and should not include the past record of the previous violation, and withdrawn the above assertion on the second trial date. Nevertheless, the Defendant repeats the same argument in the trial.