[1] The meaning of "domination" and "measures under Article 50 (1) of the Road Traffic Act" such as aiding victims under Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[2] The case holding that where a person causing a traffic accident denies the fact of an accident to a police officer who was investigated and returned to Korea after being investigated by a witness even though he was sent to the hospital by the victim, it constitutes "a escape" under Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[3] Criteria for determining necessary attorney-at-law in the appellate court

[4] Whether the violation of Acts and subordinate statutes of the litigation procedure which was tried and judged without a defense counsel in a necessary attorney-at-law case has influenced the judgment of innocence (negative)

[1] "When the driver runs away without taking measures under Article 50 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, such as aiding the victim" under Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to a case where the driver of an accident does not take measures under Article 50 (1) of the Road Traffic Act despite the victim's awareness of the fact that the victim was killed or injured, resulting in a situation in which the identity of the person who caused the accident can not be confirmed because the driver escaped from the place of accident without taking measures under Article 50 (1) of the Road Traffic Act."

[2] Where a person causing a traffic accident denies the fact of an accident to the police officer who was investigated and returned to Korea after being investigated by a witness although he was sent to the hospital by the victim, the case holding that it constitutes "domination under Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes"

[3] In the appellate court’s determination as to whether a case constitutes a case without a defense counsel pursuant to Article 282 of the Criminal Procedure Act, the statutory penalty for a crime constituting the facts charged shall be the basis thereof. However, even in a case requiring a requisite defense, if only a part of the facts charged is found guilty and the facts charged constitute a case for which revision can be made without a defense counsel, it shall not be treated as a requisite attorney-at-law.

[4] The necessary attorney-at-law case where the trial was conducted and decided without a defense counsel shall not constitute a violation of law in the litigation procedure, but it shall not cause unfavorable results to the defendant due to the necessary defense counsel made for the benefit of the defendant, and such violation of law shall not be deemed to have affected the judgment of innocence.

[1] [2] Article 5-3 (1) of the Aggravated Punishment, etc. of Specific Crimes / [3] [4] Article 282 of the

[1] Supreme Court Decision 94Do1850 delivered on September 13, 1994 (Gong1994Ha, 2701) Supreme Court Decision 95Do1680 delivered on November 24, 1995 (Gong1996Sang, 300) Supreme Court Decision 97Do70 delivered on May 7, 1997 (Gong1997Sang, 1795), Supreme Court Decision 97Do2475 delivered on November 28, 1997 (Gong198Sang, 201), Supreme Court Decision 97Do3079 delivered on March 27, 199 (Gong198Sang, 1255), Supreme Court Decision 97Do3999 delivered on April 13, 199 (Gong1998Sang, 195) 98Do39799 delivered on September 19, 195)

Defendant

Prosecutor

Attorney Kwon Young-hoon

Daegu District Court Decision 2001No3452 delivered on October 2, 2002

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

1. The court below acknowledged that the defendant carried the instant traffic accident while driving the vehicle immediately, requested the victim to take care of the victim to the hospital with the co-defendant of the first instance court, and the defendant did not go to the police officer who prepared the written statement on the same day and denied the crime because he was unrelated to the instant traffic accident, and subsequently, affirmed the judgment of the first instance court which acquitted the defendant on the facts charged on the ground that it is difficult to deem the crime of violating the Act on the Aggravated Punishment, etc. of Specific Traffic Accidents (the Act on the Aggravated Punishment, etc. of Specific Crimes (the Act on the Aggravated Punishment, etc. of Specific Crimes) to be established only if the defendant actively denied the crime while taking relief measures against the victim.

2. However, the foregoing determination by the lower court is difficult to accept for the following reasons.

The "the case where a driver of an accident runs away without taking the measures under Article 50 (1) of the Road Traffic Act, such as aiding a victim as provided in Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Act") refers to the case where the driver of an accident does not take the measures under Article 50 (1) of the Road Traffic Act in spite of his knowledge of the fact that the victim was killed or injured, and brings about a situation where the person who caused the accident can not be confirmed (see Supreme Court Decisions 97Do770 delivered on May 7, 1997, 97, 97Do2475 delivered on November 28, 199, 9Do2869 delivered on December 7, 199, etc.), and 'the measures under Article 50 (1) of the Road Traffic Act' includes the case where the victim or the police officer, etc. and the person who caused the accident.

In this case, although the defendant moved the victim to a hospital, the defendant was recognized to have returned to the police officer after he was investigated by the witness without disclosing that the victim or any other person was a person who caused a traffic accident, and he was investigated by the witness. If so, the defendant is a witness in a situation where he did not properly implement necessary measures to take, and thus, it is impossible to confirm who was the person who caused the traffic accident in this case by clarifying his status and identifying the person who caused the traffic accident. Accordingly, the defendant's act constitutes "when the defendant escaped without taking such measures as aiding the victim" as stipulated in Article 5-3 (1) of the Road Traffic Act.

Nevertheless, the court below erred in the violation of law that affected the judgment by applying Article 5-3 (1) of the Act to the interpretation of Article 5-3 (1) of the Act.

3. In the appellate court’s determination as to whether a case constitutes a case without a defense counsel pursuant to Article 282 of the Criminal Procedure Act, the statutory penalty for a crime constituting the facts charged shall be the basis thereof: Provided, That even in a case requiring a necessary defense, if only a part of the facts charged is found guilty and the facts charged constitute a case that can be revised without a defense counsel, it shall not be treated as a requisite attorney-at-law.

Therefore, it was erroneous that the court below revised the case without a defense counsel and tried to hold a trial without a defense counsel in this case where the necessary defense is required by the court below. However, since there is a necessary defense provision made for the benefit of the defendant, it cannot cause any unfavorable result to the defendant, this error of the court below is not until the violation of law which affected the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court.

Justices Lee Yong-woo (Presiding Justice)