Defendant

Defendant

Kim Jin Kim

Suwon District Court Decision 2004Gohap3180 Delivered on May 25, 2005

The judgment of the first instance shall be reversed.

Defendant shall be punished by a fine of 200,000 won.

When the defendant does not pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting 50,000 won into one day.

shall order the provisional payment of an amount equivalent to the above fine.

1. Reasons for appeal by the defendant;

A passenger car (vehicle number omitted) which the Defendant admitted to have leased at the first instance trial is the actual owner, and only the name of the Defendant was lent to the (trade name omitted) siren. The fact that the Defendant had carried on a commercial transport is true, but there was no amount of KRW 415,00 from the Nonindicted Party. In addition, the Defendant was unaware of whether a commercial transport was committed. Accordingly, the first instance court that convicted the Defendant was erroneous and adversely affected the conclusion of the judgment.

2. Determination

A. Contents of the primary charge

A person who rents a commercial car of a rent-a-car business operator shall not use or sublease the relevant car for transport with compensation, but the defendant, on July 15, 2004, took advantage of the car car volume (vehicle number omitted) rented by the defendant, transported customers from Songpa-gu Seoul Metropolitan Government to the Osan Training Institute, and transported them with compensation of KRW 80,000,000, as shown in the annexed crime list of the first instance court.

B. Judgment of the court of the first instance

The first instance court found the defendant guilty of the facts charged in this case as evidence of the defendant's statement in the first instance court, the interrogation protocol of the police officer against the non-indicted, the copy of the notification, and the operation log

C. The judgment of this Court

According to Article 83 subparag. 10 and Article 35(1) of the Passenger Transport Service Act, a lessee of a commercial car of a car rental business entity shall not use or sublease the relevant car for transport with compensation. According to the appellate court’s legal statement, inquiry into the redemption order, the automobile insurance certificate, and the automobile insurance certificate, the Defendant is a land owner who has entered the instant car into a siren, and the Defendant directly manages and operates the instant car amount, and the Defendant is not in a position to rent a car amount (see Supreme Court Decision 92Do160, Oct. 27, 1992). Thus, the judgment of the first instance is reversed, since there is no evidence to acknowledge that the Defendant leased the said car from a siren.

However, in the appellate trial, the prosecutor added the charges that "private cars shall not be provided or rented for commercial transport, in collusion with the non-indicted, get a customer in Songpa-gu Seoul Metropolitan Government around July 15, 2004 using the car number of the car owned by the defendant, and transport them to the Osan Training Institute, receive 80,000 won in return, and provide private cars for commercial transport at a cost, and provide them for commercial transport only seven times in total as shown in the annexed crime list, such as in the annexed crime list." The prosecutor added the charges to the charges that "private cars shall not be provided or rented for commercial transport, and this court has different objects of the trial by permitting the modification of the bill of indictment. Therefore, the judgment of the first instance court is no longer maintained.

3. Conclusion

If so, according to Article 364(2) and (6) of the Criminal Procedure Act, the judgment of the first instance is reversed, and it is again decided after pleading as follows.

Although a private car should not be provided or leased for a commercial transport purpose, in collusion with the non-indicted, a private car provided for a commercial transport purpose seven times in total as shown in the attached list of crimes, including the act of getting a customer in Songpa-gu Seoul around July 15, 2004 by using a passenger car (vehicle number omitted) car owned by the defendant and transporting it to the Osan Training Institute and receiving KRW 80,000 in return for transporting it for a commercial transport purpose.

1. Statement at the appellate court of the defendant;

1. A protocol of partial police interrogation of the accused;

1. The protocol of interrogation of the police by the Nonindicted Party

1. A copy of a notification;

1. A copy of the operating log;

1. Inquiry into the repayment terms, automobile insurance policy, and automobile insurance subscription certificate;

1. Relevant laws and the choice of punishment for the crime;

Article 81 subparagraph 7 of the Passenger Transport Service Act, Article 73 (1) of the same Act, and Article 30 of the Criminal Act.

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

(1) According to each of the above evidence, it can be acknowledged that the defendant conspired with the non-indicted in collusion with the non-indicted, provided the defendant for commercial transport by using a passenger car owned by the defendant.

(2) The Defendant received contact from the Nonindicted Party and carried out the instant commercial transport, and the Nonindicted Party asserted that the Defendant did not engage in commercial transport business since it was not paid KRW 415,00,00, which is the Defendant’s share from the Nonindicted Party, out of the money that the Nonindicted Party received from the customer. However, even if the Defendant did not actually receive the said money after receiving the money from the Nonindicted Party by using a car, and the Defendant did not pay the money to the Defendant, and the Defendant did not actually receive the said money, the establishment of the offense of violating the Passenger Transport Service Act is not affected.

The contents of the facts charged in the instant case are the same as those of the above 2-A. As seen earlier, it is insufficient to acknowledge the primary facts charged, and as there is no other evidence to prove the primary facts charged, the facts charged constitute a case where there is no evidence to prove a crime, and thus, a judgment of innocence should be rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, or as long as a conviction of the ancillary

[Attachment Form 5]

Judges Park Jong-chul (Presiding Judge)