2018No2672, 2019No1061 (Joint)

Violation of the Road Traffic Act (Refusal of Drinking Measures), Violation of the Road Traffic Act (Operation without License), and Roads

Violation of the Traffic Act (driving)

A

Both parties

Ors (prosecutions) and conciliation clothes (public trial)

Attorney B (Korean National Assembly)

1. Changwon District Court Decision 2018 Godan391 decided October 10, 2018;

2. Changwon District Court Decision 2019Nodan8 decided May 28, 2019

July 25, 2019

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for a term of one year and two months.

1. Summary of grounds for appeal;

A. As to the judgment of the court of first instance, the decision of the court of first instance on unreasonable sentencing (public prosecutor only)

B. As to the second judgment of the court below

1) Defendant

A) Unreasonable sentencing

B) On December 3, 2018, around 18:50 of the instant case, at the time of drinking and non-licensed driving, the person was in a state of mental disability or mental disability under the influence of alcohol.

(ii)a prosecutor;

Unfair Economic Decision

2. Ex officio determination

We examine the reasoning of appeal ex officio prior to the judgment on the grounds of appeal. With respect to the judgment of the court of appeal Nos. 1 and 2, the defendant filed an appeal against the judgment of the court of appeal No. 2, and this court decided to concurrently examine the above appeal cases. Each of the crimes of the court of appeal No. 1 and 2 against the defendant is concurrent crimes under the former part of Article 37 of the Criminal Act, and a sentence should be imposed pursuant to Article 38(1) of the Criminal Act, and the judgment of the court of appeal cannot be maintained as they are,

3. Judgment on the Defendant’s mental and physical argument

According to the records of this case, it is recognized that the Defendant was under the influence of alcohol at the time of driving alcohol and without obtaining permission on December 3, 2018. However, in full view of the following: (a) the Defendant’s specific statement at an investigative agency about the circumstances during which the Defendant was under the influence of alcohol; (b) the Defendant’s level of drinking alcohol (e.g., 1 illness), blood alcohol level (0.160%) at the time of driving alcohol; (c) the time and place of the instant crime; (d) the time and place of the instant crime; (e) the means and method of the instant crime; and (e) the circumstances after the crime, etc., the Defendant did not seem to have suffered or lacks the ability to discern things or make decisions. Accordingly, this part of the Defendant’

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the judgment of the court below is reversed, and it is again decided as follows, without examining the above grounds for ex officio reversal.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the criminal facts and the evidence of the defendant recognized by the court is the same as the corresponding column of each judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 148-2(1)2 and 44(2) of the former Road Traffic Act (Amended by Act No. 16037, Dec. 24, 2018); Articles 148-2(1)2 and 44(2) of the former Road Traffic Act (Amended by Act No. 16037, Dec. 24, 2018); Articles 148-2(1)1 and 44(1) of the former Road Traffic Act (Amended by Act No. 16037, Dec. 24, 2018); Articles 152 subparag. 1 and 43 of the former Road Traffic Act (limited to a non-exclusive driving)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation of concurrent crimes;

The reason for sentencing under the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act, even though the execution of the final sentence was completed, the Defendant had committed a crime of refusing to measure drinking while driving without obtaining a license for a period of about one year after release from the military, and committed a crime of refusing to measure drinking. The Defendant, even though he did not so, even though he/she was under trial for the above crime, he/she does not seem to have any reflect form, such as committing a crime by driving while driving again while driving again under the status of 0.160% of blood alcohol level on March 2018. The Defendant has the history of being punished three times due to a drunk driving in the past. In light of the Defendant’s criminal history, details of the crime, and the timing of the crime, etc., the Defendant must be punished strictly.

However, in full view of the circumstances favorable to the defendant, such as the fact that the defendant has no criminal record of a stay of execution or more due to drinking driving, the fact that the health of the defendant is not good, and other circumstances that form the conditions for sentencing specified in the records and arguments of this case, including the defendant's age, environment, character and conduct, the circumstances before and after the crime, etc., and

The presiding judge shall complete the judge;

Judge Yellow-il

Judges Lee Byung-chul