Defendant

Defendant

Freeboard of leap

Attorney Park Jong-chul

Daegu District Court Decision 2005Gohap4486 Decided March 10, 2006

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 300,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

order the provisional payment of the amount equivalent to the above fine.

Judgment on the Grounds for Appeal

1. Summary of grounds for appeal;

A. Error of mistake

The defendant asserts that "the victim (the 59 years old) was able to get off from the city bus (the vehicle number omitted) at the time and place indicated in the facts charged in this case. The defendant was guilty of the facts charged in this case, on the ground that the victim, who gets off the city bus due to the negligence of failing to maintain the balance of her body and went beyond the ground floor, caused the victim's injury like the time of the original trial, and even if the defendant caused a traffic accident due to the negligence of coming off the city bus in violation of the duty to prevent passengers' drilling, which caused the victim's injury to the victim and caused the victim to get relief from the defendant, etc., because the part and degree of the victim's injury cannot be said to be unfilled, and thus, the defendant et al. was guilty of the facts charged in this case."

B. Unreasonable sentencing

The defendant asserts that "The sentence of the judgment below is too unreasonable because the sentence is too unreasonable, even if it is not so, in light of the various sentencing conditions of this case."

2. The judgment of this Court

A. Summary of the facts charged of this case and the summary of the judgment below

The summary of the facts charged of this case is that "the defendant, while driving an urban bus on March 30, 2005 as of March 30, 2005, caused a traffic accident by negligence in the course of business as described below, and caused the victim to suffer bodily injury, such as right-hand dye, salt, etc. requiring treatment for about two weeks, and then immediately stopped and escaped without taking necessary measures, such as providing relief to the victim." Thus, the court below found the defendant guilty of all the facts charged of this case by taking into account the evidences at the time.

B. Violation of the Act on Special Cases concerning Traffic Accident Settlement

The court below reasoned that the evidence duly admitted and the protocol of on-site inspection of this court and the following circumstances can be recognized by the above evidences: ① the city bus is installed with safety devices to prevent the departure of an open door and the entrance is not operated unless the entrance is shut down completely while the passengers get out of the entrance, but it is not operated. However, if the entrance door behind the city bus is not shut down completely and it is cleanly cut off from two parts of the front door, the urban bus will continue slowly if it is cut off from the front door of the accident. ② If the passengers get out of the city bus and the passengers get out of the city bus due to the violation of the Act on Special Cases Concerning the Inspection of Traffic Accidents, it is hard to find the victim guilty of the violation of the Act on Special Cases Concerning the Inspection of Traffic Accidents, ④ if the victim was found to have been unsatisfyd or unsatched due to his negligence during the accident, it is hard to find the victim's physical life in the after door of the accident.

C. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

(1) In full view of the Defendant’s trial court, the first instance court, the prosecutor’s office and the police, the victim’s testimony at the court of first instance, the prosecutor’s office and the police, the testimony at the court of first instance and the police, the fact inquiry at the court of first instance on the fact inquiry at the court of first instance, the fact inquiry at the court of first instance, the fact inquiry at the associate professor at the college and the department of law, the occurrence of traffic accidents at the department of law, the report on the preparation of the assistant judicial police officer, and the statement at the actual survey report on the preparation of Nonindicted 3, the doctor at the Gyeongbuk University Hospital, etc., the following facts may be recognized.

(A) On March 30, 2005, the Defendant, while driving an urban bus as of March 30, 2005, caused a traffic accident due to the following circumstances and negligence in the course of business, and caused the victim to suffer bodily injury, such as the right salves, which requires treatment for about two weeks (hereinafter “instant traffic accident”).

(B) At the time of the instant accident, the victim was born at the time of the instant accident, and caused treatment for the imposition of the Gyeongbuk University Hospital. However, as indicated in the criminal facts column, the victim asked the victim that “Is up to the ground floor of the city bus while getting off the city bus as soon as possible, and Non-Party 1 asked the victim whether I would be open from the place, including Non-Party 1, after receiving a axis from the surrounding persons, including Non-Party 1.” The victim stated that “I would have written the registration number of the city bus.”

(C) The victim left a certain place immediately after the instant accident, but did not have any external wounds, such as particular pains, transfusions, and holes, and went to the imposition of the Gyeongbuk University Hospital as it is, from 11:00 to 11:00 the time of the medical treatment, and the victim returned to the site of the accident and received a note with the registration number of the city bus from Nonindicted Party 1 while returning to the site of the accident, and again purchased drugs in accordance with the medical prescription of the pharmacy.

(D) On the date of the instant accident, at around 14:00, the victim reported the instant accident, and notified Nonindicted Co. 4, who was working for Nonindicted Co. 4, by leaving a phone, and was diagnosed as a radioactive photographing, etc., by going through the regular course of the Gyeongbuk University Hospital Hospital Hospital, and then was diagnosed as a radioactive photographing, etc.., the victim was discharged from the hospital as it was, and did not receive any further treatment, unless there was any external wounds, such as the mouth, spouting, transfusion, hole, and sprink.

(E) In the instant accident, the victim’s injury to the right edge of the instant accident was improved without any particular aftermathing.

(2) For the purpose of Article 5-3(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”), the term “when the driver of an accident runs away without taking measures under Article 50(1) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005 and enforced June 1, 2006; hereinafter “former Road Traffic Act”) such as aiding the victim” means the case where the driver of an accident runs away from the scene prior to the performance of his duties under Article 50(1) of the former Road Traffic Act, such as aiding the victim despite the awareness of the fact that the victim was killed or injured (see, e.g., Supreme Court Decision 2001Do471, Feb. 8, 2002).

In addition, in light of the legislative intent and protected legal interest of the provision on the aggravated punishment of a flight driver under Article 5-3 of the Act, in a case where it is not deemed necessary to take measures under Article 50 (1) of the former Road Traffic Act, such as taking comprehensive account of the details and contents of the accident, the age of the victim, the degree and degree of the injury, the circumstances after the accident, etc., the crime of violation of Article 5-3 (1) of the Act does not constitute a crime of violation of Article 5-3 (1) of the Special Act even if the accident driver leaves the place of accident without taking measures such as aiding the victim (see Supreme Court Decisions 2004Do2523, Apr. 29, 2005; 2002Do2001, Jun. 28, 2002; 2002Do452, Oct. 22, 2002).

(3) However, the above facts are as follows: (a) the progress rate of the city bus at the time of the instant accident; (b) the injured part and degree of the injured part of the victim due to the instant accident (in particular, there was no external wound, such as blood, hole, and paper, etc., the injured party at the time of the instant accident; and (c) the injured party’s injury due to the instant accident did not undergo special medical treatment; (d) the injured party’s attitude after the instant accident (after the instant accident, Nonindicted 1 et al. were treated as fine; (e) the injured party’s attitude (after the instant accident, Nonindicted 1 et al. were treated as fine; (e) the injured party went to the imposition of the Gyeongbuk University Hospital at the time of the instant accident; (e) it is difficult to view that the injured party was under the jurisdiction of the police station prior to the instant accident and there was no other evidence to acknowledge the need to receive the injury due to the instant accident; (e) it was difficult to view that the injured party was under the jurisdiction of the instant hospital.

(4) Therefore, the defendant cannot be punished as a crime of violation of special family law.

Nevertheless, since the court below found the defendant guilty of violating the Act on Special Cases in each of the facts charged in this case, the court below erred by misapprehending the legal principles as to the crime of violating the Act on Special Cases, or by misapprehending the legal principles as to the crime of violating the Act on Special Cases.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act without any need to further determine the grounds for appeal by the defendant on the grounds of unfair sentencing, since an appeal on the mistake of facts against the defendant's violation of the Special Act on the Aggravated Punishment, etc. is well-grounded.

On March 30, 2005, the Defendant: (a) while driving a city bus on March 30, 2005 as a business of 08:50, the Defendant stopped from the bus platform in Daegu Jung-gu 3 Spanish 2 Spanish convenience stores, and caused the victims and other passengers to get off the city bus; (b) In such cases, the Defendant, who driven the city bus, was negligent in performing his duty to prevent passengers from falling on the bus by closing the back of the bus and safely driving the bus; and (c) neglected to perform his duty of care to prevent passengers from falling on the bus; and (d) caused the victims to suffer injury, such as the right-hand cream, which requires treatment for about two weeks, by getting the victim, including the victim, etc., to the right-hand cream, etc., who left the city bus due to negligence in the course of performing his duty of care to prevent passengers fall on the bus.

In addition to adding "1. On-site inspection records of this Court consistent with the facts stated in the judgment" to the summary of evidence, as stated in the corresponding column of the judgment of the court, all of them shall be cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 3(1), proviso to Article 3(2)10 of the Act on Special Cases concerning the Settlement of Traffic Accidents, and Article 268 of the Criminal Act.

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The summary of each of the facts charged in the instant case is the same as the corresponding part of Paragraph (2) of the judgment on the grounds for appeal. As seen earlier, in the judgment on the grounds for appeal, this part of the facts charged should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of criminal facts. However, as seen earlier, inasmuch as it is found guilty of a violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, which includes the facts charged in a violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, and the sentence is sentenced in the disposition, it is not separately pronounced not guilty in the order.

It is so decided as per Disposition for the above reasons.

Judges Lee Jong-sung (Presiding Judge)