[1] 전복된 차량의 창 밖으로 튕겨져 나온 피고인의 혈액형이 사고 차량의 운전석 주변에 집중적으로 남아 있는 혈흔들의 혈액형과 다르고 동승자들의 진술에 신빙성이 없음에도, 피고인을 사고차량의 운전자로 단정한 원심판결에 심리미진·채증법칙 위반의 위법이 있다고 한 사례

[2] The probative value of the part concerning the circumstances involved in the accident during the nursing day

[1] 전복된 차량의 창 밖으로 튕겨져 나온 피고인의 혈액형이 사고 차량의 운전석 주변에 집중적으로 남아 있는 혈흔들의 혈액형과 다르고 동승자들의 진술에 신빙성이 없음에도, 피고인을 사고차량의 운전자로 단정한 원심판결을 심리미진으로 인한 채증법칙 위배를 이유로 파기한 사례.

[2] According to the nursing day of the accident party to the defendant, although the defendant was under the influence of alcohol with regard to the mental condition at the time when he was placed in the emergency room, it is stated that the defendant was under the influence of alcohol with regard to the mental condition at the time when he was placed in the emergency room, and that he was found in the emergency room at the time of being placed in the emergency room because he was driving of self-melting and driving of the internal guards, and he was broomed into the emergency room." Thus, it may be seen that the defendant led to the confession of his driving at the time of being placed in the emergency room at the time of being placed in the normal mental condition at the time of being placed in the emergency room. However, such a statement is not necessarily written according to the patient's statement, and it is difficult to readily conclude the fact of driving of the defendant on the sole basis of such statement.

[1] Article 308 of the Criminal Procedure Act, Article 3 (1) of the Act on Special Cases concerning the Settlement of Traffic Accidents / [2] Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 90Do1873 delivered on November 23, 1990 (Gong1991, 270) Supreme Court Decision 91Do415 delivered on April 9, 1991 (Gong1991, 1407) Supreme Court Decision 94Do2393 delivered on November 8, 1994 (Gong194Ha, 3317)

Defendant

Defendant

Attorney Park Jong-ok

Incheon District Court Decision 96No758 delivered on June 13, 1997

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

We examine the grounds of appeal.

1. The facts charged in this case

The summary of the facts charged of this case is as follows: (a) the Defendant driven a drick under the influence of alcohol of 0.21% on July 19, 1995 at around 03:30, and found the drick in front of 1486-5, Nam-gu, Incheon, Nam-gu, and caused the death of the patient at around 03:5,000 by negligence in the course of business where the above vehicle turns down to the right side while the drick in front of the above vehicle turns down to the right side, and caused the victim’s process to receive the street trees on the right side of the above vehicle to undergo approximately 10 weeks medical treatment; and (b) the victim’s drick in front of the above vehicle suffered from the drick strophic strophy, such as the dropic fral fral fral, the dropic rheral fral fral fral.

2. The first instance court and the lower court’s determination

According to the statement of the taxi engineer Kim Chang-ro, the first instance court found the above car out of the above car at the time of the accident of this case due to the shock of the car caused by the collision between the street trees and the street at the time of the accident of this case. According to each description of the first instance court's verification protocol on the vehicle involved in the accident of this case, the first instance court's examination report and the appraisal report of the bloodtain, etc. by the head of the National Science Investigation Agency, after the accident of this vehicle, the first instance court found the defendant not guilty on the ground that the first instance court's statement of the vehicle involved in the accident of this case is hard to believe that the first instance court's first instance court's examination report and the second sentence of the vehicle involved in the accident of this case are in the situation where the first instance and the rear sentence of the above car are opened, and the blood style of the above process of this case, which is not the blood type of the defendant's vehicle near the driver's seat of this case, it is hard to find the credibility of the above evidence.

이에 반하여 원심은, 피고인이 검찰과 제1심 제1회 공판기일에서 공소사실을 모두 인정하는 취지의 진술을 하였고, 위 공정영 김금실 김창길 및 사고 직후 구조를 담당한 소방관 차정석의 각 진술, 위 실황조사서 및 중앙길병원 응급실장 의사 이근 작성의 사실조회회답에 첨부되어 있는 진료기록의 각 기재 등을 종합하면, 피고인이 상당히 술에 취한 상태로 자신의 차를 운전하겠다고 고집하여 이 사건 사고차량을 직접 운전하게 된 사실을 인정할 수 있는 반면, 제1심법원이 이 사건 사고차량을 검증할 당시 위 차량은 운전석쪽 앞문 및 뒷문은 열리지 아니하고 조수석쪽 앞문과 뒷문은 열리는 상태였다고 할지라도 이는 피해자들에 대한 구조과정에서 그 변형이 가능할 뿐더러 가로수를 충격한 후 여러 번 회전하면서 충격 당시 열려져 있던 문이 다시 닫힐 수도 있고 그 반대일 수도 있는 가능성도 있으므로 그 검증조서의 기재를 들어 피고인이 위 차량의 조수석에 탑승하고 있다가 밖으로 튕겨져 나갔다는 점을 추단하기에는 무리가 있고, 피고인은 위 차량이 가로수와 충돌할 당시 그 충격에 의하여 밖으로 튕겨져 나가 별다른 상처를 입지 않게 되었고 차안에 타고 있던 공정영이나 류응식은 차량의 회전으로 인한 원심력에 의하여 운전석쪽으로 몸이 기울어지면서 상처를 입게 되었다고 보이므로 위 차량에서 피고인의 혈흔이나 모발은 채취된 바 없는 반면 좌측 팔 부위에 심한 부상을 입은 위 공정영의 혈액형인 에이비(AB)형의 혈흔이 운전석 주위에 묻어 있는 것이 오히려 사리에 맞는다고 할 것이므로 위와 같은 점을 들어 피고인이 아닌 공정영이 위 차량을 운전한 것으로 볼 수 없으며, 한편 위 김금실은 이 사건 사고 직후 경찰에서 조사를 받은 이후 일관하여 피고인이 이 사건 사고 차량을 운전하였다고 진술하고 있는데, 그 진술을 배척하기는 어려울 뿐만 아니라 갑자기 사고를 당하여 다쳤거나 경황이 없는 동승자들이 사고 후의 짧은 시간 동안에 보험관계 등을 생각하여 피고인이 차량을 운전한 것으로 하기로 모의하였다고 보기도 어렵다고 판단하여, 제1심을 파기하고 피고인에 대하여 유죄를 인정하였다.

3. Judgment of party members

A. The Defendant stated that the police first in charge of the investigation did not memory the instant accident, but was the same as driving of another person, and that it was not certain that other person was aware of driving the accident at the same time, but stated that if other person was driven by the Defendant at the time under the influence of alcohol at the prosecution, he would recognize that fact. The first instance court stated that the defense counsel’s cross-examination on the prosecutor’s examination was without memory of the accident, but on the first instance court, stated that the defense counsel did not have memory of the accident at the time, but continued to deny the fact of driving.

그러므로 먼저 기록에 의하여 인정되는 사고의 경위, 사고 후 위 차량의 상태 및 관계인들의 상해의 부위와 정도에 관하여 보면, 피고인은 인천 남구 주안4동에 있는 서울나이트스탠드바에서 디스코걸로 일하는 자로서 이 사건 사고 전날 24:00경 일을 마치고 위 스탠드바의 직원 8명과 함께 인천 연안부두에 있는 상호불상의 횟집에서 식사를 하면서 상당량의 술을 마신 다음 그 일행 중 일부가 같은 시 간석동에 있는 "라이브시티"라는 단란주점으로 가기 위하여 피고인 소유의 위 승용차에 타게 된 사실, 위 차량은 용현동 쪽에서 동양장 사거리쪽으로 편도 4차선 도로의 1차선을 따라 상당히 빠른 속력으로 진행하던 중 이 사건 사고지점인 같은 시 남구 주안8동 1486의 5 앞 노상에 이르러 당시 비가 오고 있어 노면이 미끄러운 상태에서 전방의 신호가 정지신호로 바뀌자 급제동조치로 인하여 차량의 중심이 중앙선쪽으로 쏠렸다가 급히 핸들이 우측으로 꺽이면서 급격히 인도쪽으로 돌진하여 그 앞 범퍼 좌측부분으로 그 진행방향 우측에 있는 가로수를 들이받고 뒤집힌 다음 세바퀴 정도 돌아서 뒤집힌 상태로 3차선과 4차선 사이에서 정지한 사실, 피고인은 위 차량이 가로수를 충격한 순간 그 충격에 의하여 차량 밖으로 튕겨져 나와 그 가로수 앞 인도에 떨어져 앞 이마가 약간 찢어지고 약 3주간의 치료를 요하는 경추부 염좌 및 다발성 좌상을 입은 반면, 차안에 계속 남아 있던 위 공정영은 10주간의 치료를 요하는 중상을 입었는데 특히 왼쪽 팔 부위에 심한 골절상, 심부 열상 및 파멸창을 입었고 위 류응식은 두개골골절로 인한 중증뇌좌상으로 사망한 사실, 이 사건 사고 후 약 4개월이 지난 시점에서 위 차량을 검증한 결과, 주로 운전석쪽의 휀더와 본넷트가 많이 손상되었으며 천정이 움푹 내려앉고 운전석쪽 앞문 및 뒷문은 열리지 아니하며 조수석쪽 앞문과 뒷문은 열려서 닫혀지지 않는 상태였고 운전석 주변과 천정에 혈흔이 남아 있고 머리카락이 묻어 있던 사실, 국립과학수사연구소에서 이러한 혈흔과 머리카락을 채취하여 감정한 결과, 운전석쪽 후사경 뒷면 운전석 앞문틀 핸들 아래 부분 전면 유리안 좌측 상단 구석 전면 유리틀 좌측 상단 오디오 박스 전면에 남아 있는 혈흔과 후사경 뒷면에 묻어 있던 머리카락은 모두 에이비(AB)형이고 위 승용차 내부 천정에 묻은 혈흔은 모두 에이(A)형인 사실, 그런데 피고인의 혈액형은 비(B)형이고 위 공정영의 혈액형은 에이

B. Next, on the premise of the facts acknowledged earlier, the lower court’s evidence should be examined in order, which corresponds to the fact that the Defendant driven the instant vehicle.

(1) The above Kim Jong-chul was present and stated as a witness in the investigation agency as well as in the first instance court and the court of original instance. The defendant participated in the above ceremony with the defendant, and was seated on the back seat of the accident, and the defendant was driven directly by him. However, although he was the person who was not able to fastening the safety level prior to the accident, even though he did not have the above safety level (No. 189 of the trial record), it was extremely rare that the above accident vehicle did not have any injury even though he did not have been able to ask the other people who died or died on the road at least three times before the accident, and it was hard for the defendant to know that he did not have been able to know about the credibility of the vehicle at the time of the accident at the time of the accident, second, the police officer Kim Chang-ro and the first instance court's testimony at the time of the accident at the time of the accident, and it was difficult for the defendant to know that he did not have any other women on the first time before the accident at the time of the accident.

(2) Each statement at the investigative agency and court of the above work progress is difficult to easily understand the fact that each statement at the investigative agency and court of the above work progress, even though the driver's license was revoked and suspended, and the defendant was sitting at the top of the accident vehicle in this case being driven by the defendant without a direct driving. While the defendant stopped in the signal atmosphere, the defendant observed the driver's hand hand to avoid the truck coming from the opposite line during the departure. However, it is difficult to find that the person who was sitting at the early stage was suffering mainly on the left part of the vehicle after the shock of the vehicle. Second, even if the driver's license was revoked and the driver's license was suspended, it is difficult to see that the above vehicle was in progress on the left part of the driver's seat, especially around the driver's seat, or on the left part of the front frame or the left part of the glass frame, and it is difficult to see that the defendant's body was in progress in the middle of the above opening of the bar at the left part of the bar.

(3) At the time of arrival at the scene of an accident, Non-Indicted Party 1, who was in the first instance court, was present at the court below as a witness, and had been rescued first, and the person who was in the first place, was faced with the face, and the rescue method opened a driving seat and opened the front door door and took the front door part of the head. According to this testimony, the above fair operation was deemed to have existed at the time of the rescue, but first, the above Kim Chang-gil, who was approaching the vehicle in the front seat, stated that he was used in the front seat at the time of the accident, and that it was difficult to conclude that the above testimony was made at the time of the accident without being present at the time of the accident, and thus, it was difficult to view the witness's testimony at the time of the accident as being difficult to conclude that the above Kim Chang-ro, who was in the front seat, was used in the front seat at the time of the accident.

(4) Statement of the actual survey report

In a traffic accident report prepared by the judicial police assistant, the reason for the accident is indicated that the instant vehicle has taken the roadside trees on the side of the road and followed them to the right side. If the Defendant was to protruding away from the vehicle at that time and fell away from the front of the street, it includes the part that can only fall if the Defendant was on the driver’s seat. However, it is unclear that the circumstances of the accident occurred, and considering the driving force of the said vehicle at that time, road conditions, and the degree of shock and shock, etc., it is highly probable that the Defendant, who was on the front line of the said vehicle, was able to fall into the front side of the street trees, and thus, it is difficult to believe the content thereof.

(5) Medical records of the Central Street Hospital

According to the court below's statement of the nursing day (No. 237 of the trial record) on the defendant, attached to the notice of reply by the chief of the Incheon Central Road Office to the fact inquiry by the court below, the defendant was under influence of the mental condition at the time when he was placed in the emergency room, but he was under influence of the mental condition at the time when he was placed in the emergency room, and he was found in the emergency room at the time of being placed in the emergency room because he was driving for himself and driving for brooms with respect to the internal guards." While the defendant was placed in the emergency room at the time of being placed in the emergency room, it may be seen as having led to the confession of his driving at the time of being hospitalized in the normal mental condition at the time of being placed in the emergency room, it is difficult to readily conclude that the defendant's vehicle's vehicle's vehicle's driver's identity was not stated in the patient's statement according to the practice of the hospital's service, and it is also difficult to ascertain the exact statement as to the patient's identity.

C. Therefore, in order to recognize that the Defendant’s driving of the instant vehicle is true enough to have a reasonable doubt, the lower court should, under the circumstances described in the instant case, obtain additional nursing guidance for each of the above fair operation and typesetting and typesetting, and compare the contents thereof or have deliberated on the preparation process. However, the lower court found the Defendant guilty on the ground that the Defendant did not reach the aforementioned examination solely on the ground that the Defendant was guilty of failing to reach the aforementioned examination, thereby failing to exhaust all necessary deliberations. In particular, the lower court erred by misapprehending the rules of evidence.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)