(a) the meaning of “road crossing with a railroad” that is subject to the exclusion of Article 78(a) of the Railroad Act from passage and access prohibition;

(b) Where an accident occurs in the course of operating a vehicle according to the instruction of a designated passenger, the responsibility of the designated passenger;

(a) “Road crossings with railroads” under the provisions of Article 78 of the Railroad Act, which is subject to the exclusion of traffic and access prohibition, means roads crossings with roads or points where the passage of people or vehicles is permitted by the railroad authorities by using facilities available to them, and does not include any intersections naturally occurring due to the unlawful passage of people and vehicles regardless of the will of the railroad authorities;

B. In a case where the driver’s disease of a military vehicle damages the vehicle due to the driver’s negligence during the crossing of the railroad without permission, the result of the damage cannot be deemed as due to the negligence that the driver’s fault directed the person on board to cross the accident point, and the fact alone cannot be readily concluded that the driver’s negligence on the result of the damage is attributable to the person responsible for leading and supervising the driver’s disease.

Article 78 of the Railroad Act; Articles 73 and 69 of the Military Criminal Act

Defendant

Military prosecutor;

Attorney Cho Jin-hee

The Army, High Military Court Decision 85Na191 delivered on September 19, 1985

The part of the judgment of the court below on the violation of the Railroad Law shall be reversed, and that part of the case shall be remanded to the Army, High School, and Military Council.

The remainder of the appeal by the military prosecutor is dismissed.

We examine the grounds of appeal.

1. On the violation of the Railroad Act:

Article 78 of the Railroad Act provides that no person is allowed to enter or pass along railroad tracks (excluding roads crossing with railroads) or railroad sites as determined by the President without the consent of railroad personnel. This is a provision prohibiting the general public from entering or departing from railroad tracks or railroad sites because it is likely to endanger the safety management, preservation, and smooth operation of railroad facilities. Therefore, the term "road crossings with railroads" under the above provision refers to a point where a railroad authority permits passage by using people or vehicles on the railroad tracks crossing with roads, or by using facilities where vehicles can pass, and regardless of the will of the railroad authorities, the intersection points naturally occurring due to the illegal passage of people and vehicles shall not be included.

According to the records, it is evident that the railroad line at the point at issue in this case is not an intersection where people or vehicles are allowed to cross, and that it is not an intersection where the railroad authorities allow passage to the point at which people or vehicles are allowed to cross. However, since it is apparent that it is a point where residents or vehicles are used to illegally cross-road traffic (see the investigation record less than 9 pages), such as the approval of the court below, neighboring residents or vehicles have used the above point at ordinary times, and even if it is a point at which a road with a width of not more than 5 meters is cross-sectiond with a road with a width of not more than 5 meters, it cannot be viewed as a "road crossing with a railroad" as referred to in Article 78 of the Railroad Act, and there is no data to deem that the railroad personnel have implicitly consented to passage to it.

The judgment of the court below is erroneous in the misapprehension of legal principles which affected the conclusion of the judgment that the judgment of the court below, which affected the conclusion of the judgment, did not violate Article 78 of the Railroad Act, on the ground that the railroad tracks at the point of the judgment of the court below constituted the roads crossing with the railroads under Article 78 of the Railroad Act, and that the implied consent of the railroad staff was given to the crossing passage to the said point. This part of the judgment of the court below is justified in the ground of appeal pointing this out.

2. As to damage to military supplies by occupational negligence:

According to the facts and records confirmed by the court below, the examination of the military at the original time of the judgment cannot be deemed as a negligent negligence on the part of the defendant, on the ground that the result of the damage was caused by the defendant's order of crossing the railroad line at the point of accident without permission of the driver's office, and the driver's duty of driving the above driver's office again returned to the defendant's office and the driver's duty of driving of the above driver's office, and the front part of the vehicle protruding the railroad line was damaged by the cargo train at the point of accident. Accordingly, it cannot be deemed that the result of the damage was caused by the negligence of ordering the defendant to cross the point of accident, and it cannot be concluded that the defendant was a person responsible for directing and supervising the driver's office, and it cannot be concluded that there was a common negligence on the result of the damage.In this case, it cannot be viewed that the court below erred in the misapprehension of legal principles as to the negligence of the defendant's common negligence, as it did not find any data to recognize any negligence on the part of the defendant.

3. Therefore, the part of the judgment of the court below on the violation of the Railroad Act is reversed, and that part of the case is remanded to the High Military Court of Korea, which is the court below, and the remaining appeal by the military prosecutor is without merit, and it is so decided as per Disposition by the assent of all participating

Justices Lee B-soo (Presiding Justice)