[1] Where an attachment installed on a motor vehicle can be removed and attached without any change in the structure or device of the motor vehicle, but can be combined for structural and intended purposes into a motor vehicle and can be used as a whole and increases in the length and height of the motor vehicle, whether the installation of the attachment constitutes a "motor vehicle pipeline" requiring the approval of the Mayor, etc. (affirmative)

[2] In a case where the defendant was prosecuted for violating the Automobile Management Act by fixing a freezing container to aground on the winger owned by the defendant without the approval of the Mayor, etc., on the ground that the fixing of the freezing container to the winger constitutes a "motor vehicle shield" as stipulated in the said Act, and thus, the defendant's operation of the winger without the approval was operated without the approval, on the ground that it constitutes a "motor vehicle shield" as stipulated in the said Act

[1] In light of the legislative intent of Article 2 subparag. 11 and Article 34(1) of the Automobile Management Act, Article 8(1)1 and Article 8(2)10 of the Enforcement Decree of the Automobile Management Act, Article 55(1) and (2) of the Enforcement Rule of the Automobile Management Act, and Article 55(1) and (2) of the Enforcement Rule of the Automobile Management Act to secure performance and safety of automobiles, if an attachment installed on a vehicle can be combined with a vehicle in structural and purpose and can be used as a whole with the vehicle, and if an attachment brings about an increase in the length and height of the vehicle due to its attachment, even if it is possible to remove or attach the attachment without any change in the structure or device of the vehicle, the installation of the attachment constitutes the pipe learning of the

[2] In a case where the Defendant was indicted for violating the Automobile Management Act on the ground that he operated a freezing tower of 16.5m in length and 2.5m high of 2.5m high (hereinafter “cleaning container”) on the ground that he was indicted for violating the Automobile Management Act on the ground that he: (a) the Defendant was indicted for violating the Automobile Management Act on the ground that he fixed a freezing container on the winger and operated with the operation permission of the competent chief police station; (b) the Defendant was used as a freezing train to transport a lot of freezing and refrigerating foods; and (c) the freezing container was manufactured from the beginning to be installed on the winger for the purpose of transporting a lot of freezing and refrigerating foods, and used “one body” in combination with each other for structural and purpose (the operation of a container with a freezing device and fuel device attached thereto results in additional operation on the winger); and (d) the Defendant’s operation of a container without the approval of a fixed vehicle under the Automobile Management Act on the ground that it would result in an actual increase in length or height of a container.

[1] Articles 1, 2 subparag. 11, and 34(1) of the Automobile Management Act; Article 8(1)1, and (2)10 of the Enforcement Decree of the Automobile Management Act; Article 55(1) and (2) of the Enforcement Rule of the Automobile Management Act / [2] Article 2 subparag. 11 of the Automobile Management Act; Article 29(1) and (3) of the former Automobile Management Act (Amended by Act No. 13486, Aug. 11, 2015); Articles 34 and 81 subparag. 20 of the former Automobile Management Act; Article 8(1)1 and (2)10 of the Enforcement Decree of the Automobile Management Act; Article 5(1) and (2) of the Enforcement Rule of the Automobile Management Act; Article 39(1) of the Road Traffic Act

Defendant

Prosecutor

Gu-young et al.

Law Firm Sharing, Attorneys Choi Yong-sung et al.

Daegu District Court Decision 2015Gohap1760 Decided February 17, 2016

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

1. Summary of grounds for appeal;

The act of fixing freezing containers to aground on the clockr as indicated in the facts charged in the instant case constitutes “motor vehicle tubes” as stipulated in the Automobile Management Act. Nevertheless, the lower court erred by misapprehending the fact that the lower court acquitted the Defendant of the instant facts charged, or by misapprehending the legal doctrine on the Motor Vehicle Management Act, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

No person shall operate a motor vehicle with the knowledge that it has been installed for the items prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport without obtaining approval from the head of a Si/Gun/Gu.

Nevertheless, from around 08:30 on May 15, 2015 to around 08:40 on the same day, the Defendant operated a motor vehicle, which was installed by fixing the freezing tower with the height of 16.5 meters at the 2.5m high 2.5m high 2.5m in length to the (vehicle number omitted), owned by the Defendant (hereinafter “instant locker”) at approximately 4km from the lock distribution center located in the lock-gun (hereinafter “the instant lock container”).

B. The judgment of the court below

In light of the following circumstances acknowledged by the evidence adopted and examined by the lower court, the lower court acquitted the Defendant on the charges of this case on the ground that the act of fixing the freezing container of this case to aground cannot be deemed as constituting “motor vehicle tank” as prescribed by the Motor Vehicle Management Act on the sole basis of the evidence submitted by the Prosecutor.

① The freezing of the instant container may be loaded in a manner that is fixing the instant container as aground, and may be easily separated from the said tr, and the said tr may be loaded and unloaded using the said tr. The instant freezing container is installed in an independent tr and an engine fuel fuel engine, so it can be operated after being separated from the instant tr. In the case of the instant tr, only the trr itself is included in the object to be inspected under the Automobile Management Act, and the container loaded on that point is not included in the object to be inspected. Considering the above, it is reasonable to view that the instant trr and the instant tr are independent of the instant tr and loaded goods.

② Although the freezing of the instant container is installed outside of the normal standard container with a length higher than that of the instant container and the exhaustter or fuel device, even if the said freezing container is loaded on the trper of the instant tr, no change or alteration is made to the structure or device of the said trr itself.

C. The judgment of this Court

However, we cannot accept the above determination by the court below for the following reasons.

1) According to Articles 34(1) and 2 subparag. 11 of the Motor Vehicle Management Act, where an owner of an automobile intends to conduct the tubes on the items prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, he/she shall obtain approval from the Mayor, etc., and in this context, “motor vehicle navigation” refers to “the alteration of part of structures and devices of a motor vehicle or addition of attached objects to a motor vehicle.” In other words, not only the alteration of structures and devices, but also addition of attached objects to a motor vehicle constitutes a motor vehicle’s tubes. In addition, with regard to the items subject to approval as above by the owner of a motor vehicle, Article 8 of the Enforcement Decree of the Motor Vehicle Management Act and Article 55(1) of the Enforcement Rule of the same Act list the structure, width, and height (Article 8(1)10 of the Enforcement Decree of the Motor Vehicle Management Act) of the motor vehicle related to the structure, goods loading (Article 8(2)10 of the Enforcement Decree of the same Act). Meanwhile, Article 55(2) of the above Enforcement Rule provides that it may not affect the performance or alteration.

In light of the foregoing provisions of the Automobile Management Act, the Enforcement Rule, and the legislative purport of the Automobile Management Act intending to secure the performance and safety of the motor vehicle, if attached articles installed on a motor vehicle can be combined into a motor vehicle with a structure and purpose, and can be used as a whole, and the length and height of the motor vehicle have increased due to its attached objects, even if it is possible to remove or attach attached articles without any change to the structure or device of the motor vehicle, the installation of attached articles can be deemed to constitute the tubes of the motor vehicle requiring the approval of the Mayor, etc.

2) In light of the following circumstances revealed by the evidence duly adopted and examined at the court below and the court below, it is deemed that the Defendant’s operation of the instant freezingr without the approval of the mayor, etc., inasmuch as the operation of the instant freezingr without the approval of the mayor, etc., while fixing the instant freezing container as aground.

① The instant container is intended to fix the said container in advance at the level of 2.8m or extended 2.8m or longer (if necessary to load cargo due to a transformation cler, it would be possible to extend the length of flat board) and would normally be different in the specifications from the container normally used. The length of the container is 16.5m or 2.5m, or the height is 16.5m or 2.5m, and the rear part is protruding about 70m when the instant freezing container is fixed to the instant cler.

As can be seen, since the instant tler operates a freezing container with an extended operation thereof, it exceeds the safety standards stipulated in Article 29(4) of the Automobile Management Act and Article 4 of the Rules on the Performance and Criteria of Motor Vehicle and Motor Vehicle Parts (16.7m in length). Accordingly, the Defendant asserts that the instant tr is a loaded article in operating the instant tracker container, and has been operated so far by means of obtaining a operating permit from the chief of the competent police station pursuant to Article 39(1) of the Road Traffic Act.

② In order to separate the frozen containers of this case from turging, the two vehicles must be mobilized, and due care is required for separation or fixing, and at least three minutes of the time is required to re-fixed at least, as is, at least four minutes of the separation. In addition, the freezing containers of this case are installed with freezing devices, etc. on the front part, and fuel tanks, etc. are installed on the lower part of the right part, and it is difficult to set off on the ground without any separate turging, and it is impossible to load the same turging method as ordinary containers.

③ The lower part of the freezing part of the instant container is more reflective than the rear part of the tr, and there are several lights installed on the left and right side of the freezing container of the instant case. The Defendant, except when undergoing a car inspection, ordinarily operated a freezing container of the instant case by fixing it to the tr, and was actually used as an ombudsman for the same purpose as the freezing truck.

④ Meanwhile, as seen earlier, if a vehicle exceeding the safety standards stipulated in the Automobile Management Act, etc. does not regard it as a “motor vehicle’s tubes” under the Motor Vehicle Management Act by extending the cryptr of the instant cryptr to fix the instant crypter, it would be a situation in which the vehicle exceeding the safety standards stipulated in the Motor Vehicle Management Act, etc. operates the cryptly on the road with permission for operation only. Furthermore, the “motor vehicle crypting” of the same type may constitute cases where

⑤ In full view of the aforementioned circumstances, it is reasonable to view that the Defendant’s fixing the instant freezing container to a transformingr and operating it with an operating permit is used as a freezing tower to transport more freezing and refrigeratings. The instant freezing container was manufactured for the first purpose of installing it from the beginning, and is used as a body in the form of structural and purpose (which results in the freezing device and fuel device attached to the instant container added to the instant winger). Accordingly, it would result in an actual increase in its length or height. As such, it is reasonable to view that fixing the instant freezing container to the instant wingr constitutes a “motor vehicle steering” under the Motor Vehicle Management Act by adding the attached goods to the instant wingr.

3) Nevertheless, the lower court erred by misapprehending the legal doctrine as to the Automobile Management Act, or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment shall be rendered again.

2.(a) The entry is as described in paragraph (1).

1. Partial statement of the defendant;

1. A protocol of partial police interrogation of the accused (including attached documents);

1. Investigation records by the court of the original instance;

1. The inquiry and reply to the fact-finding system;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 81 Subparag. 20 and Article 34(1) of the former Automobile Management Act (Amended by Act No. 13486, Aug. 11, 2015);

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

Judges Cha Gyeong-Gyeong (Presiding Judge)