[1] The case where the appellate court reversed the judgment of the court below and judged in the first instance court in a case where the district court and the collegiate panel of its branch rendered a judgment in the first instance to be judged in the first instance

[2] In a case where a passenger, who is not a driver of a motor vehicle, abandons the victim in collusion with the driver after the traffic accident and runs away, whether it may be punished as a joint principal offender of the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (negative

[1] In a case where a district court and the collegiate panel of its branch rendered a judgment in the first instance to the court of first instance, the case where the appellate court reversed the judgment of the court below and judged in the first instance.

[2] The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is established when a driver injured the victim due to a traffic accident while moving the victim from the scene of the accident to the scene of the accident, and the crime of intentional crime is established when a passenger, other than a driver, abandons the victim in collusion with the driver after the traffic accident and resulting in the death of the victim. If the passenger, other than the driver, did not cause the result of the crime after the driver's negligence, the joint principal offender of the crime of traffic accident cannot be established. Even if the driver and the driver conspired with the driver after the traffic accident and knew the driver's previous crime (traffic accident) but the passenger, who committed the death of the victim, is liable only for the crime after the driver's participation. Thus, the crime of abandonment is established under the Act on the Aggravated Punishment, etc. of Specific Crimes, apart from the fact that the death of the victim was committed when the passenger, other than the driver, abandons the victim in collusion with the driver after the traffic accident, and thereby the victim died, the crime of abandonment is not established.

[1] Article 394 of the Criminal Procedure Act, Article 32 (1) 3 of the Court Organization Act / [2] Articles 30 and 275 (1) of the Criminal Act, Article 5-3 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes

[1] Supreme Court Decision 99Do4398 delivered on April 8, 1997 (Gong1997Sang, 1502), Supreme Court Decision 99Do4398 delivered on November 26, 199 (Gong2000Sang, 119), Supreme Court Decision 79Do1249 delivered on August 21, 197 (Gong1979, 1201), Supreme Court Decision 82Do884 delivered on June 8, 1982 (Gong1982, 664)

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorney Lee Tae-young

Chuncheon District Court Decision 9Da434 delivered on November 2, 1999

1. The judgment below is reversed.

2. The defendant 1 shall be punished by imprisonment for not less than two years and six months, and by imprisonment for not more than one year and six months.

3. 70 days under confinement before sentencing of the original judgment shall be included in each penalty.

4.However, with respect to Defendant 2, the execution of the above sentence shall be suspended for a period of two years from the date this judgment becomes final and conclusive.

1. Reasons for appeal;

A. Summary of the grounds for appeal by Defendant 1

The sentence imposed by the court below against the above defendant is unreasonable.

B. Summary of prosecutor's grounds for appeal

Each sentence sentenced by the court below against the Defendants is unfair as it is all unfortunate.

2. Determination:

Before the judgment on the grounds for appeal above, the facts charged in this case against the defendants were examined ex officio prior to the judgment on the grounds for appeal, and it is evident that the defendant 1 committed the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes under Article 5-3 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the violation of the Road Traffic Act, and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes under Article 5-3 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the defendant 2 judged the above facts charged in the first instance by the Youngcheon District Court,

However, the crime of violation of Article 5-3 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes is a crime punishable by death penalty, imprisonment for life or imprisonment for not less than five years, and the crime of death resulting from abandonment under Articles 275 (1) and 271 (1) of the Criminal Act is a crime punishable by imprisonment for not less than three years and Article 32 (1) 3 of the Court Organization Act. According to the main sentence of Article 32 (1) 3 of the Court Organization Act, the court of first instance is the collegiate division of the district court and its branch court, and the court of second instance is the high court. Thus, it is clear that the court of second instance did not have jurisdiction over the case and rendered a judgment of its substance

Therefore, a party member shall reverse the judgment of the court below ex officio in accordance with Article 364(2) of the Criminal Procedure Act. However, a party member has no right to object as the second instance court. However, since the party member also has a right to object jurisdiction as the first instance court of this case (it is true that the defendants and defense counsel do not have territorial jurisdiction in this case, but can be tried in this court because the defendants and defense counsel do not have territorial jurisdiction in this case, so the defect of territorial jurisdiction has been cured).

Judgment of party members

Criminal facts

Defendant 1 is a person driving (vehicle number omitted) the radar van, and Defendant 2 is a person boarding the same vehicle;

1. Defendant 1:

On August 23, 1999, when driving the said van without a driver's license at around 22:00, on the ground of the driver's license, the driver's license of the said van, the driver's license was driven from the area where the 412 local roads located in the front of the YY-gun, Gangwon-gun, the YY-gun, were to leave about 60 kilometers in speed from the surface of the YY-gun, the driver's office's negligence that neglected the duty at the front time to leave the road to the right side of the YY-gun, caused the victim to go beyond the road. While the victim was sent to the above YY-gun, the YY-gun, the driver's office of the YY-gun, the driver's office of the YY-gun, the driver's office of the Y-gun, and the victim's office of the YY-gun, the Y-gun and the Y-gun, the 2nd main body of the 2, the victim's.

2. Defendant 2:

Defendant 1 conspireds with Defendant 1 at the time and place specified in paragraph 1, and abandons the above victim as above, thereby causing the death of the victim.

Summary of Evidence

1. Defendants’ respective statements in this Court

1. Each statement of each protocol of examination of suspect against the Defendants prepared by the public prosecutor

1. Definition of preparation of an assistant judicial police officer and each statement of statement against Kim Jin-jin;

1. Entry of a protocol of inspection conducted by a judicial police officer;

1. Each entry into the actual status of preparation of the assistant judicial police officer and a protocol of seizure;

1. To describe a copy of the death diagnosis report and a written examination of the body of victims prepared by a doctor red heads;

1. Each statement of the request for appraisal by the President of the National Institute of Scientific Investigation and Investigation for the preparation of an appraisal report and the additional report for appraisal;

Application of Statutes

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

(a) Defendant 1: Article 5-3 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 268 of the Criminal Act, subparagraph 1 of Article 109 and Article 40 (1) of the Road Traffic Act (the point of driving without a license, the choice of imprisonment);

(b) Defendant 2: Articles 275, 271, 33, and 30 of the Criminal Act (the points of death or injury caused by public offering).

2. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and Article 50 (Defendant 1: Aggravation of the punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes, which is heavier than the punishment, within the scope of the sum of the long-term punishments of two crimes)

3. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Code (Article 55(1)3 of the Criminal Code shall be taken into consideration that there is no criminal record for each kind of crime, the agreement was reached with the bereaved family of the victim, and the crime of this case is closely divided).

4. Calculation of days of detention;

Article 57 of each Criminal Code (Defendants)

5. Suspension of execution;

Article 62 (1) of the Criminal Code (Article 62 (1) (Article 62 (1) of the Criminal Code does not lead the criminal conduct, but takes into account the following circumstances)

Parts of innocence

The summary of the facts charged in this case against Defendant 2 is as follows: Defendant 2 was a person who was on board the rash drive (vehicle number omitted) by Defendant 1; Defendant 2 conspired with each other; Defendant 1 was on the same date and time in the criminal charge column; Defendant 1 was on board and sent the victim to the hospital at the above time and place; Defendant 1 was on the front of the middle school located in the 1st, North Korea, North Korea, the Man-gun, the Man-gun; Defendant 1 decided to abandon the victim; Defendant 1 was on the part of the victim; Defendant 2 was on the part of the victim; Defendant 2 was abandoned the victim by putting the victim on the road; Defendant 2 was on the part of the victim’s shoulder and the part; Defendant 3 was on the part of the Man-gun; Defendant 1 was on the part of the Man-gun; Defendant 2 was on the part of the Man-gun Hospital located in the 24th, 300,000).

On the other hand, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc. of Specific Crimes) is established when a driver injured a victim due to a traffic accident and abandons or abandons the victim from the scene of the accident and intentionally commits the crime of death of the victim. In a case where a passenger, other than a driver, conspireds with the driver after the traffic accident, abandons the victim, and resulting in the death of the victim, unless the passenger in collusion with the driver, and the driver did not cause the result of the crime by making the driver's negligent traffic accident under contact with the driver, the joint principal offender of the crime of traffic accident cannot be established (see Supreme Court Decision 79Do1249, Aug. 21, 1979). The perpetrator who committed the death of the victim in collusion with the driver after the occurrence of the traffic accident shall be held liable as a joint principal offender only for the crime after the driver's participation (the crime of death of the driver after the death of the victim is established (see Supreme Court Decision 2008Do484, Jun. 28, 199).).

Therefore, the facts charged against Defendant 2 constitute a crime not guilty under Article 325 of the Criminal Procedure Act because the facts charged against the violation of the above Act on the Aggravated Punishment, etc. of Specific Crimes (Doing Vehicle) do not constitute a crime or a case where there is no evidence of a crime. However, as seen above, the conviction of some of the crime resulting from death within the scope of prosecution is found, the above Act on the Aggravated Punishment, etc.

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

Judges Lee Hun-tae (Presiding Judge)