2015No494 Violation of the Road Traffic Act (driving) and the Road Traffic Act (Fence)

Driving), obstruction of performance of official duties, damage to public goods

2015No3215 (Joint)

A

Defendant and Prosecutor (Defendant and Prosecutor of the Second Judgment)

Heading, Kim Byung-chul, Kim Jong-chul, Kim Tae-tae, Kim Jong-sik (Trial)

public-service advocates V belonging to the Korea Legal Aid Corporation

1. Ansan-dong Branch of the Daegu District Court (Seoul District Court), 2014dan820, 2014 decided January 20, 2015;

High Court Decision 982(Consolidated)

2. Ansan-dong Branch of the Daegu District Court (Seoul District Court), 2015dan183, 2015 decided July 24, 2015;

High Order 204(Joint Judgment)

December 3, 2015

All judgment of the court below shall be reversed. Defendant shall be punished by imprisonment for one year.

1. Summary of grounds for appeal;

A. Error of mistake

1) Defendant: Of the first instance judgment, the instant vehicle was driven by the person “W” and the Defendant did not drive the vehicle. Of the second instance judgment, the Defendant did not commit the crime as stated in the judgment with respect to obstruction of performance of official duties and damage to public property, and it is difficult to readily conclude that the blood alcohol concentration was above 0.05%, which is the punishment standard for driving since the Defendant may have a high blood alcohol concentration at the time of driving in light of the final drinking time and driving time.

2) Prosecutor: Of the second lower judgment, the lower court found the Defendant not guilty of the charges, although the Defendant constituted a person who violated Article 44(1)2 of the Road Traffic Act with respect to driving under influence of alcohol.

B. Unreasonable sentencing

1) Defendant: The sentence of the first instance judgment ( imprisonment for seven months, two years of suspended execution, and one hundred and twenty hours of probation, community service, etc.) is too unreasonable.

2) Defendant and prosecutor: Defendant and prosecutor asserted that the punishment of the second judgment (two months of imprisonment) is too unfasible, and the prosecutor is too unfased and unreasonable.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal, the prosecutor made ex officio prior to the judgment on the grounds for appeal, and the prosecutor changed the "0.1% of the blood alcohol concentration in the part of the first judgment to "0.05% or more of the blood alcohol concentration", and changed the applicable provisions from "Article 148-2 (2) 2 of the Road Traffic Act" to "Article 148-2 (2) 3 of the Road Traffic Act", and the "0.164% or more of the blood alcohol concentration in the part of the second judgment" to "0.05% or more of the blood alcohol concentration in the blood alcohol concentration", and this court permitted this and changed the judgment subject to the judgment by this court. In addition, each appeal case against the defendant was consolidated at the trial of the court of first instance, and the facts of the crime are concurrent with each other under the former part of Article 37 of the Criminal Act, so the judgment of the court below can no longer be upheld, so in this respect, the judgment of the court below can no longer be affirmed.

However, notwithstanding the above reasons for ex officio reversal, the defendant and the prosecutor's assertion of mistake is still subject to the judgment of this court, and this is examined below.

B. Judgment on mistake of fact

1) Judgment on the defendant's assertion of mistake of facts

A) The following facts are acknowledged based on the evidence duly adopted and examined by the first instance court. The defendant, in light of the following facts: (a) the defendant prevented the traffic progress in the signal signal and controlled the police officers dispatched with a report; (b) the defendant driving a vehicle in drinking condition; (c) the defendant was taken from CCTV; and (d) the defendant demanded the police officers who demanded a drinking test to ask the police officers to ask for water to take a drinking level once and then delayed a drinking test after drinking water, and stated that the defendant would cut off the vehicle only once when he delayed a drinking test after drinking, the defendant can be sufficiently recognized that he driven the vehicle in this case under the influence of alcohol level of 0.05% or more on June 22, 2014; and (d) the defendant's assertion of mistake of facts is without merit.

B) The second instance court rejected the assertion by stating in detail the judgment on the same argument of the Defendant in the item of the “determination on the Defendant and his defense counsel’s assertion.” Examining the record compared with the evidence duly adopted and examined by the second instance court, the lower judgment is justifiable.

2) Judgment on the Prosecutor’s misunderstanding of facts

The second instance court judged that since it is difficult to determine that the defendant violated Article 44 (1) of the Road Traffic Act twice, since the defendant appealed from the drinking driving of the second instance case, the second instance court judged that this part of the charge constitutes a case where there is no proof of crime.

According to the evidence duly adopted and examined by the first instance court and the second instance court, the defendant can be found to have violated Article 44(1) of the Road Traffic Act by driving a vehicle while under influence of not less than 0.05% of blood alcohol level on June 22, 2014. Thus, inasmuch as it is found to be guilty of the defendant's drinking driving of the first instance court, the defendant constitutes a person who violated Article 44(1) of the Road Traffic Act twice in the second instance court. Accordingly, the prosecutor's argument of mistake of facts is with merit.

3. Conclusion

If so, the prosecutor's appeal is reasonable and the judgment of the court below is based on the above ex officio reversal, and it is all reversed in accordance with Article 364 (2) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime and evidence acknowledged by this court is "the second blood alcohol level of 0.10% or more" among the facts constituting the crime of the first instance judgment, and the second instance judgment of 0.05% or more is "the blood alcohol level of 0.05% or more". The defendant was sentenced to a fine of 700,000 won or more for the violation of the Road Traffic Act (driving) from the support of the Daegu District Court inside Dong-dong on January 31, 2008, and the same court was sentenced to a suspended sentence of 7 months or more for the same crime of violation of the Road Traffic Act (driving) and the Road Traffic Act (licensed without a license) and was sentenced to a suspended sentence of 2 months or more. The defendant was a person who had the same history of punishment for drinking driving from the first instance judgment of 0:25,000 permanent residence on March 26, 2015 to 160% or more of the previous residential alcohol level of 30% or more from the previous residential alcohol level of 15 meters or more as it is.

Application of Statutes

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

Articles 148-2(1)1, 148-2(2)3, and 44(1) of the Road Traffic Act, Article 152 subparag. 1, and 43 of the Road Traffic Act, Article 136(1) of the Criminal Act, Article 141(1) of the Criminal Act (a point where public goods are damaged)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act ( mutually between the crimes of violating the Road Traffic Act of June 22, 2014 and the crimes of violating the Road Traffic Act of the Road Traffic Act of June 22, 2014)

1. Selection of punishment;

Imprisonment Selection

1. Aggravation for concurrent crimes;

The reason for sentencing under the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act is that the defendant has not driven a vehicle while under influence of alcohol or without a license even though he/she has driven a vehicle while under influence of alcohol or without a license. The defendant denies the charges, such as drinking, repeating a crime without license even after prosecution due to drinking and without a license, the defendant's refusal to take a sobage test and damaging a police vehicle; the defendant has been punished several times due to the violation of the Road Traffic Act, the violation of the Road Traffic Act, injury, etc.; the defendant has a history of denying and not against most of the charges; the defendant's age, character and behavior, environment, etc., and all other sentencing conditions specified in the records and arguments shall be determined as ordered

The presiding judge, appointed judge

Judges Lee Jae-hoon

Judges Park Jong-young