(영문) 수원지방법원 성남지원 2016.9.8.선고 2016고정713 판결

On March 19, 2016: around 20, the Defendant operated the said automobile in the vicinity of the road in front of the 505 U.S. S. S. S. S. St., as it was around 20:0, the Defendant, the owner of 33 U.S. CF car (hereinafter “instant vehicle”) without being entrusted with matters concerning the operation, etc. of the automobile from the Hyundai IF, the Hyundai IF Co., Ltd., the owner of the said vehicle.

2. Determination:

The defendant's defense counsel asserts that since the defendant operated the vehicle with the permission of direct operation from the lessee of the vehicle of this case, this does not constitute the so-called "large-sized vehicle operation" but did not intend to operate large-scale vehicles to the defendant.

According to the records, the following facts are established: (a) U.S. Investment and Capital Group (representative representative director) entered into a contract to lease the instant vehicle from the owner Hyundai Capital Co., Ltd. (Lease Company) on November 8, 2013; (b) the U.S. Investment and Capital Group did not pay the lease fees after May 2014; (c) the Hyundai Capital Group claimed the termination of the lease contract from June 2014 and demanded the return of the vehicle; (d) the Defendant was under control on the operation of the instant vehicle on March 19, 2016; and (e) from around September 2015 to around August 2015, the Defendant stated that “the operation of the instant vehicle was permitted.”

Article 81 subparag. 7-2 and Article 24-2 of the Automobile Management Act, which is the penal provision applied to the defendant, is a provision newly established on August 11, 2015 from the Automobile Management Act (Act No. 13486, Feb. 12, 2016; the enforcement of the amended provision), and Article 81 subparag. 7-2 of the same Act provides that a person who operates a motor vehicle in violation of Article 24-2 (1) shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding ten million won, and Article 24-2 (1) of the same Act provides that a motor vehicle shall be operated by a motor vehicle user (a person entrusted with matters concerning the operation, etc. by the owner of a motor vehicle or the owner of a motor vehicle) under Article 2 subparag. 3 of the same Act.

However, the interpretation of penal provisions should be strict, and the interpretation of penal provisions in the direction unfavorable to the defendant is not allowed because it violates the principle of no crime without the law and it is not allowed (see Supreme Court en banc Decision 2001Do5410, Feb. 8, 2002; Supreme Court Decision 2003Do6535, Feb. 27, 2004). In light of the following circumstances, it is reasonable to interpret Article 81 subparag. 7-2 of the Automobile Management Act as limited to "an act of driving a vehicle, recognizing that the act of violating Article 81 subparag. 7-2 of the Automobile Management Act is intended to distribute a vehicle on the large lane or is being illegally distributed, or that it is being illegally distributed."

1. ① The reason why the penal provision under Article 81 subparag. 7-2 and Article 24-2 of the Automobile Management Act was newly established is that an illegal vehicle (the so-called large-sized vehicle) is used as a tool for illegal and violent crimes, and continuous damage occurs. Thus, in order to eradicate the operation and distribution of such large-sized vehicle, the said penal provision is to punish the act of operation of large-sized vehicle in the process of establishing ex officio cancellation of large-sized vehicle, the order to suspend operation by the owner’s report, the custody of registration license plate, and the penal provision for illegal acts. In light of this, it is clear that the said penal provision is subject to punishment, recognizing that it is an illegal vehicle (large-sized vehicle).

1 ② The revised Automobile Management Act, however, uses the concept of "motor vehicle users (person entrusted with the operation, etc. of motor vehicles)" as it is, instead of newly establishing a clear definition of "motor vehicles (motor vehicles)", which is referred to in Article 2 subparagraph 3 of the Automobile Management Act from before the towing, and "motor vehicles are operated by motor vehicle users under subparagraph 3 of Article 2."

However, the definition of â€˜motor vehicle operator', which had existed before the revision, is the concept of â€˜motor vehicle maintenance (Article 36)', â€˜report inspection (Article 72)', and â€˜motor vehicle maintenance and inspection (Article 72)'. Nevertheless, it is difficult to use the concept of â€˜motor vehicle user', which is limited in establishing the regulations on the restriction on operation of general motor vehicles, as it is for the expansion of the subject of excessive punishment, and thus it is not appropriate in the structure of the penal law, and it is possible to violate the principle of excessive prohibition under the Constitution.

③ In particular, in the case of the leased vehicle as in the instant case, there vary between the owner of the vehicle and the person who actually owns and operates the vehicle (user). The interpretation of the said penal provision is limited only to the literally, but only the person who has been permitted to operate the vehicle by the lease company (owner) may operate the vehicle, and the person who operates the vehicle with the permission of the lessee (person entrusted with the matters concerning the operation, etc. of the vehicle) shall be punished if the owner does not permit it. However, in the case of the lease, the lessee holds the general right to use and benefit of the vehicle. However, even if the lease user permits the use of the vehicle temporarily or for a long time according to its needs, it cannot be deemed that it is subject to punishment as intended under the amended Act. This is because the operation is not related to the illegal use and distribution of the large-scale vehicle, and the purpose of the amended Act is not to punish all the owners who did not obtain any permission to operate the vehicle).

④ In the instant case, when the payment of lease fee was delayed, the notification of the termination of the contract was made by the lessee, and the return of the vehicle was delayed due to the lessee’s failure to contact the Defendant, and the Defendant did not have intended to illegally acquire the leased vehicle or to distribute it in the future. (5) If the Defendant operates the vehicle with the lessee’s permission, such as the Defendant, it does not constitute the operation of the illegal name vehicle (topplow) and it cannot be deemed that the said vehicle was in danger of being used as a tool for other illegal and violent crimes.

⑤ Ultimately, in light of the content of the instant legal provision and uniform interpretation, amendment purpose, and the principle of caution under the Criminal Act, a limited interpretation of Article 81 subparag. 7-2, which is the subject of punishment under the amended Automobile Management Act, is in line with the principle of prohibition of statutory interpretation of the penal law, and is also reasonable in terms of preventing excessive expansion of the scope of punishment, by recognizing that a violation under Article 81 subparag. 7-2, which is the subject of punishment under the amended Automobile Management Act, is intended to distribute a vehicle across the large lane or is being used by illegal distribution.

In this case, the defendant operated a motor vehicle with permission from a lessee without intent to illegally distribute a motor vehicle. This is not only a violation of Article 81, Article 81, Article 7-2 of the Motor Vehicle Management Act, but also a intentional violation of the law.

3. Conclusion

Therefore, the defendant is not guilty under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced under Article 58 (2) of the Criminal Act.

Judges

Judges Kim Min-soo

Note tin

1) Under the above amended law, "illegal vehicles (the so-called 'the so-called 'the so-called 's vehicles') are used as a tool of illegal and violent crimes, causing continuous damage.

Therefore, by expanding the investigative authority for criminals who do not fulfill the duty of registration of transfer to eradicate the operation and distribution of illegal vehicles in the name of the person;

In order to eradicate the operation of illegal vehicles more fundamentally, a substitute for an illegal vehicle without registration or registration of cancellation;

If the registration authority orders the registration of cancellation ex officio and the suspension of operation by the owner's report or fails to comply with it, the registration number plate shall be kept in custody.

Newly establishing a penal provision on illegal acts and, at the same time, to promote the convenience of the people by eliminating the obligation to keep a motor vehicle registration certificate and the penal provision.

‘The reason for the amendment' is specified.

2) Article 3(2) (Evidence Record 52 pages) of the Lease Agreement.

3) In addition to allowing for a long-term use to family members, there are cases where operating is temporarily permitted to a relative or employee, or an acting driver.

4) Article 13 of the Lease Agreement prohibits a lessee from providing a third party with a vehicle for the purpose of transfer, sub-lease, or security.

“The use of a motor vehicle to a person other than the user who is recognized by the motor vehicle insurance is prohibited, but (Evidence Record 52)

o) This is merely an agreement between a lease company and a lessee, and thus, a third party is a party to the said agreement itself.

5) The Defendant confirmed that an order to suspend operation was issued and returned the vehicle to the leasing company, and the Defendant received and disposed of the vehicle for the purpose of securing the obligation.

It does not seem that there was a division plan.

6) The term 'Stop vehicle' is explained by the words "top" means a used vehicle in which the common name is transferred, and the concept of an illegal vehicle (top the vehicle) in the Motor Vehicle Management Act is explained as it refers to a used vehicle.

It is necessary to separately provide for B. [See Nurber Knowledge Bag and Lurber] Wurg (see Surgical pre-cinary, Park Jae-gu);

Htp: / Terms and Conditions, Nver.com / Nhn ? 6257 & c. 4367 & cate = 4367.67

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