(영문) 대전지방법원 서산지원 2020.11.18.선고 2020고합59 판결

Defendant shall be punished by a fine of KRW 5,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

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

Reasons

Criminal facts

The Defendant is a person engaging in driving a rocketing car.

At around 19:10 on June 1, 2020, the Defendant driven the said car and proceeded at a speed of about 40.27 km from the direction of the election commission to the direction of the E Bank with a one-lane road in front of D elementary school in C at the time of the acceleration.

Since there was a place designated as a protective area for children around an elementary school, there was a duty of care to pay attention to the safety of children and drive safely by complying with the speed of 30 km per hour to a person engaged in driving a motor vehicle.

Nevertheless, the defendant neglected this and went beyond about 10.27 km per hour, and caused the defendant's left side of the victim F (ma, 8 years old) who dried a road on the left side from the right side of the defendant to the right side of the driver's car.

As a result, the Defendant suffered injury to the victim, such as a proposal for about two weeks of medical treatment, and any other injury, such as an unknown part, due to the above occupational negligence.

A summary of the steam

1. Partial statement of the defendant;

1. Police suspect interrogation protocol of the accused;

1. The police statement concerning F;

1. The actual survey report and the report on the occurrence of traffic accidents;

1. Response to the request for appraisal;

1. An accident site photograph;

1. Inquiry into the enemy;

1. A report on investigation and a report on investigation (verification of black stay images, etc.);

Application of Statutes

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

Article 5-13 Subparagraph 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents, Article 268 of the Criminal Act

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. Although there is a fact that the defendant driven in excess of the restricted speed in the child protection zone, there is no causal relationship between the defendant's violation of the restricted speed and the victim's injury.

B. In other words, considering the fact that the Defendant’s sunlighted in the Defendant’s right side and the view of the Defendant was limited, and the victim was left after adults at the sidewalk, even if the Defendant driven at a speed of 30 km per hour, it cannot be deemed that there was no reasonable doubt that the instant accident did not occur, even if it was driven at a speed of 30 km per hour in the said children’s protection zone.

2. Determination

In full view of the following circumstances that can be recognized by the evidence duly adopted and investigated by the court, it can be recognized that the Defendant caused the instant accident by failing to perform his/her duty to operate beyond the limit limit and pay attention to safety of children in the children protection zone. Therefore, proximate causal relation between the Defendant’s negligence, the occurrence of the instant accident, and the injury of the victim is recognized. Accordingly, the Defendant and the defense counsel’s assertion is not acceptable.

(a) A driver without any attention of a driver in a protective zone for children shall temporarily stop when children cross the road without their protectors, when children are sitting, standing or standing on the road, or when children play on the road, or when they find it difficult to obstruct the traffic accident involving children (Article 49 (1) 2 (a) of the Road Traffic Act);

2) Meanwhile, when any school bus stops on the road and operates a warning lamps, etc. indicating that children or infants are getting on or off, the driver of any motor vehicle driving in the lane where the school bus stops and the motor vehicle driving in the immediate next lane to the said lane shall temporarily stop before reaching the school bus, check the safety and slowly drive the school bus, and the driver of any motor vehicle driving in the opposite direction on the road where the median line is not installed and on the road where the median line is one lane, shall temporarily stop before reaching the school bus and drive slowly the motor vehicle after checking the safety of such movement (Article 51(1) and (2) of the Road Traffic Act).

3) However, where the Mayor, etc. deems it necessary to protect children from the danger of traffic accidents, he/she may designate certain sections of roads around elementary schools as children protection zones and restrict the traffic speed of motor vehicles within 30 km a speed of up to 30 km a hour, and drivers shall observe the restricted speed and drive motor vehicles with due care to safety of children (Article 12(1) and (3) of the Road Traffic Act).

4) Article 3(2)11 of the Act on Special Cases Concerning the Settlement of Traffic Accidents excludes cases where a child’s body is injured due to a violation of the obligation to observe the measures under Article 12(1) of the Road Traffic Act and to pay attention to safety of children in a child protection zone under Article 12(3) of the same Act, and Article 5-13 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) is newly established on December 24, 2019, thereby causing the death or injury of the child due to a traffic accident.

5) As seen in paragraphs (1) and (2) of the Road Traffic Act, it is difficult to expect that a driver will temporarily stop or walk when a driver finds a child on the road or gets a child on or off a school vehicle, unlike adults, it is understood that it is intended to protect children by preventing the same traffic accident, since it is highly likely that a child will suffer a higher bodily injury than that of a child.

6) However, in the Road Traffic Act, while getting on or off from children or school vehicles under the Road Traffic Act

Although the driver's general duty of care for children is prescribed, it is understood that the driver's duty of care is to separately designate a protection zone for children so that the speed of operation can be limited to not more than 30 kilometers, and the aggravated punishment of violations of the Specific Crimes Aggravated Punishment Act is to impose the driver's duty of care more carefully in consideration of the characteristics of children who cannot be predicted at a frequent place of traffic of children.

B. In the instant case

1) According to the black image recorded on the face of the instant accident (hereinafter “the instant image”), ① 18:59:13 (2) a yellow sign informing that the instant motor vehicle is a child protection zone is located on the right side of 18:59:22) 2) a yellow sign informing that it is a child protection zone is located on the right side of 18:59:22, and 4) a yellow sign informing that it is a child protection zone is located on the right side of 18:59:24 (3) the victim appears to go along with his driving on the sidewalk at around 18:59:26 (hereinafter “the instant motor vehicle”). ④ A vehicle driven by the Defendant (hereinafter “the instant motor vehicle”) is shocking the victim, and ⑤ a vehicle stops on around 18:59:27.

2) The Defendant operated the instant vehicle at a relatively certain speed from the above point to the point, and the running speed of the instant vehicle was about 40.27 km as soon as possible from the said point to the point.

3) However, the Defendant, who is a child protection zone, had been operated at the above point ① through the speed of 30 km from the point to the point, but did not accelerate, and ② at the above point, the Defendant shocked the victim with the instant vehicle.

4) The point where the instant accident occurred is located immediately adjacent to the D Elementary School, and (5) is designated as the children’s protection zone for the safety of children attending and leaving the D Elementary School. Accordingly, the Defendant could have sufficiently anticipated that there may be children in the vicinity of the instant accident site. Accordingly, the Defendant should have carefully driven the instant accident site by taking into account the circumstances that children could grow up at a speed of less than 30 km per hour while driving at a speed of less than 30 km per hour.

5) As seen in the above paragraph (1) above, the Defendant was able to be aware of the fact that there was a victim’s report at the branch office around 18:59:24, and around 2 seconds, around 18:59:26, which was later. The instant accident occurred. Considering the fact that the Defendant’s operation at a speed of about 1 second time until around 18:59:27, who stopped immediately after the shocking of the victim, the Defendant could prevent the occurrence of the instant accident by discovering the victim and accelerating or stopping the accident even from the said branch office at a speed of 30 km or speed within a speed of 30 km.

6) The written appraisal of the traffic accident analysis by the Daejeon National Research and Investigation Agency stated that the minimum stop distance for the purpose of avoiding the accident is 16.93 meters at a speed of 30km, but it is difficult to view it as it is applicable to the instant case as it is because it calculated the general stop distance for the purpose of avoiding the accident. Rather, considering the fact that the Defendant stops at a speed of about 1 second to stop immediately after the rapid decline of the victim, the Defendant would have been able to avoid the occurrence of the instant accident sufficiently if the Defendant actually driven at a speed of 30 kilometers per hour.

7) Therefore, the Defendant is deemed to have caused the instant accident in violation of the duty to drive beyond the limit speed in the children protection zone and pay attention to the safety of children, and proximate causal relation between the Defendant’s breach of such duty of care and the instant accident and the injury of the victim is recognized.

8) A) According to the video of this case, from around 5 seconds before the occurrence of the instant accident, the Defendant appears to have been in a limited state with the passage of sunlight and the Defendant’s view on the front side of the vehicle from around 18:59:21, around 5 seconds before the instant accident occurred. The Defendant’s defense counsel asserted that it was difficult for the Defendant to discover the victim under the Defendant’s view restricted.

B) However, a driver who operates in a place other than a children's protection zone has a duty of care to reduce the speed and to carefully see whether there is no person or other objects on the front side, in a situation where the passage of the sunlight and the view is restricted on the front side of the vehicle. In a children's protection zone, the child's protection zone has a duty of care to reduce the speed and to take into account the surrounding areas in the situation where the view is restricted due to the sunlight as above. Nevertheless, the driver's operation without reducing the speed can be assessed as the fault of the defendant sufficiently, and proximate causal relation between the above negligence and the victim's injury is recognized as seen earlier.

9) The Defendant’s defense counsel also asserts that it was difficult for the Defendant to find out the victim from the standpoint of the Defendant because the child was left behind the ordinary adult pedestrians. However, as seen earlier, the duty of care to be driven while paying attention to the safety of the child in the children protection zone is a highly advanced duty of care to ensure that there was an unexpected child’s act, and the victim was unable to find the victim from the Defendant’s point of view because the victim was left behind adult pedestrians, it does not mean that there was no negligence on the part of the Defendant, nor that causation between the Defendant’s breach of the duty of care and the

1. Reasons for sentencing: 5 million won to KRW 30 million

2. Determination of sentence: Fines of five million won;

The following various circumstances and other conditions of sentencing shall be determined as ordered in consideration of the defendant's age, character, conduct, occupation, family relationship, motive of committing the crime, means and consequence, circumstances after committing the crime, etc.

○ Unfavorable Circumstances: The instant crime was committed by the Defendant, in breach of the duty of care to pay attention to safety of children beyond the restricted speed in the children protection zone, resulting in an injury to the victim due to the negligent negligence, and the liability for such offense is not minor.

The circumstances favorable to ○: The degree of injury suffered by the victim seems not to be too serious due to the instant accident. A vehicle driven by the Defendant is covered by a comprehensive motor vehicle insurance, and the guardian of the victim does not want the punishment of the Defendant by mutual consent with the Defendant. The instant accident occurred due to the victim’s unauthorized crossing and the negligence of not having taken proper account of the Defendant’s vehicle.