(영문) 인천지방법원 2016.12.15 2016고정2888

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(영문) 인천지방법원 2016.12.15 2016고정2888

도로교통법위반(음주운전)

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The prosecution against the defendant is dismissed.

Reasons

1. On September 9, 2016, at around 04:22, the Defendant driven B rocketing car while under the influence of alcohol concentration of approximately 100 meters at approximately 0.152%, from the mid-gu Incheon Metropolitan City public parking lot No. 218, the monthly-ro 11, Jung-gu, Incheon, to the roads front of the 9-2-ro 218, the monthly-ro 9-2, the same Gu.

2. Determination

A. In accordance with Article 248 of the Criminal Procedure Act, a public prosecution takes effect on persons other than the defendant designated by the public prosecutor, so the prosecution takes effect only on the persons designated by the public prosecutor as the defendant, and accordingly, the defendant was indicated as the defendant in the indictment because the suspect has cited another person's name as the defendant.

Even if this is merely an error in the indication of the party, and the prosecutor brings a public prosecution against the mother, so it cannot be said that the mother will be the defendant and the victim will have the effect of the public prosecution.

Therefore, in a case where the prosecutor revises the indication of the accused in the indictment and makes a correction, the prosecution against the accused was instituted from the beginning, and since the prosecution against the accused was not instituted, the court should examine and proceed with a trial against the accused, and in principle, it is not necessary to judge the accused in principle.

However, even in such a case, in a case where the defendant was served with a summary order and requested for formal trial against the defendant, his name and appearance are discovered in the course of the trial against the defendant, and where the prosecutor correctss the indictment and obtains the status of the defendant in form or appearance, such as correction of the indictment, the court should clearly resolve the unstable status of the defendant by applying by analogy Article 327 subparagraph 2 of the Criminal Procedure Act, in the sense that it is clearly stated that the defendant did not have a legitimate prosecution against the defendant.

Supreme Court Decision 97Do2215 Decided November 28, 1997

참조조문

-형사소송법 제248조

-형사소송법 제327조 제2호

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