(영문) 서울중앙지방법원 2017.06.30 2017노1236

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(영문) 서울중앙지방법원 2017.06.30 2017노1236

도로교통법위반(음주운전)등

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The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,500,000.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. The lower court did not err by misapprehending the facts and legal principles that the Defendant did not drive a vehicle, and that the Defendant was driving a vehicle for domestic affairs.

Even though it is not intentional driving, it cannot be viewed that the defendant was driving under the Road Traffic Act.

B. The Defendant, who was mentally and physically weak, suffered from mental illness, such as depression due to aftermath of domestic violence, and was under the influence of alcohol at the time of the instant case. Thus, the instant crime was eventually under the influence of mental and physical weakness.

(c)

The punishment of the court below (3 million won) which is unfair in sentencing is too unreasonable.

2. Determination

A. Determination of misunderstanding the facts and misapprehension of the legal principles (1) Article 2 subparag. 26 of the Road Traffic Act provides that "driving" refers to the use of a motor vehicle in accordance with its original purpose and use (including operation) on the road. Since the concept of driving as referred to in this context includes a purpose element in light of the content of the provision, it means only intentional driving, and it does not constitute driving in the case of driving a motor vehicle without any intention or involvement of a person in the motor vehicle (see Supreme Court Decision 2004Do1109, Apr. 23, 2004, etc.). (2) Comprehensively taking into account the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court below, it can be acknowledged that the defendant was using the motor vehicle in accordance with the original purpose and use of the motor vehicle by 1-2 meters after driving the motor vehicle with his intent to drive a motor vehicle (hereinafter "motor vehicle in this case").

Therefore, the judgment of the court below that recognized the fact that the defendant driven the above vehicle and found the defendant guilty of violating the Road Traffic Act is just, and there is no error of misunderstanding the facts or misunderstanding the legal principles as

① A witness of the instant crime shall be the Defendant.

참조판례

-대법원 2004. 4. 23. 선고 2004도1109 판결

유사 판례

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