(Cheongju) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Doing Vehicle), 2015No105

Violation of the Road Traffic Act (driving)

A

Both parties

The full-time (prosecution) and the current roads (public trial)

Attorney B

Cheongju District Court Decision 2015Gohap23 Decided July 8, 2015

December 17, 2015

The acquittal portion of the judgment of the court below shall be reversed.

Of the facts charged in the instant case, the charge of violating the Road Traffic Act (driving) shall be acquitted.

The appeal filed by both the Defendant and the prosecutor against conviction in the judgment below is dismissed.

The summary of the acquittal portion shall be publicly announced.

1. Summary of grounds for appeal;

A. The defendant (e.g., unfair form)

The punishment of the court below (three years of imprisonment) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts or misunderstanding of legal principles (driving in violation of the Road Traffic Act)

Comprehensively considering the evidence submitted by the prosecutor, such as the protocol of interrogation prepared by the prosecutor against the defendant, the fact that the defendant was driven while under influence of at least 0.1% of alcohol concentration is sufficiently recognized.

2) Unreasonable sentencing

The sentence of the court below is unfair because it is too unhued.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal is examined ex officio before the judgment on the grounds for appeal, the prosecutor shall apply for an amendment to the indictment to the effect that the part of the charge of the violation of the Road Traffic Act (driving in a state of alcohol with 0.162% or more of the blood alcohol concentration among the charges of the violation of the Road Traffic Act (driving in a state of alcohol) which the court below acquitted is changed to 0.1% or more of the blood alcohol concentration, and since this court permitted it, the part of the judgment of the court below which rendered the judgment of the court below cannot be maintained in this respect. However, in light of the changed facts charged above, the prosecutor's appeal on the part of the judgment of the court below which rendered the judgment of the court below

B. As to the prosecutor's assertion of mistake and misapprehension of legal principles on the acquittal portion

1) The lower court found the Defendant not guilty of this part of the charges on the ground that, in light of the following: (a) considering the fact that the Defendant’s blood alcohol concentration was not measured at the time of the instant accident or immediately after the accident; and (b) the premise facts for the application of the above-mark formula, such as the volume of alcohol taken by the Defendant, the time during which drinking was completed, and the body weight, cannot be deemed to have been proven to the extent that there is no reasonable doubt, the evidence submitted by the Prosecutor alone is insufficient to acknowledge that the Defendant’s blood alcohol concentration was more than 0.1% at the time of the instant accident; and (c) there is no other evidence to acknowledge otherwise; and (d) rather, it cannot be ruled out that the blood alcohol concentration was more than 0.05% which significantly falls short of the standard amount of punishment when the above-mark formula is applied in favor of the Defendant.

2) Examining the evidence duly examined by the court below and the court below in light of the relevant legal principles, the above judgment of the court below is acceptable, and there is no error of mistake of facts or misapprehension of legal principles as alleged in the grounds for appeal.

C. As to the assertion of unfair sentencing by the defendant and prosecutor

The lower court, based on the following factors: (a) Article 5-3(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes imposes three years imprisonment on the Defendant, by comprehensively taking into account all favorable sentencing conditions, such as the purport of punishing a person who escaped without relief measures against the victim after a traffic accident; (b) the purpose of punishing the person who escaped without relief measures against the victim; (c) although it is difficult to know the victim’s drinking at the time; (d) there was a significant drinking alcohol; and (e) the fact that a human life accident occurred; (d) the result of the victim’s death was caused; (e) the purchase of parts damaged by the accident in the other area immediately after the accident; and (e) the attempt to conceal the crime by directly repairing the accident; (e) the fact that the victim’s negligence reached an agreement with the victim’s bereaved family;

2) In light of the records, even considering the circumstances alleged in the grounds of appeal by the Defendant and the Prosecutor and the scope of recommended sentencing guidelines set by the Sentencing Commission (two years to four years), the lower court’s sentencing is not unfairly heavy or minor. Each allegation in the grounds of appeal is without merit.

3. Conclusion

Therefore, the part of the judgment of the court below which acquitted the defendant and the prosecutor's appeal against the guilty portion among the judgment below is dismissed in accordance with Article 364 (2) of the Criminal Procedure Act, and it is so decided as follows. It is so decided as per Disposition by the assent of all participating Justices on the bench, since the defendant and the prosecutor's appeal against the guilty portion are without merit.

[Reasons for the Judgment of Innocence not guilty]

Summary of Facts charged

On January 10, 2015, at least 01:30, the Defendant driven a motor vehicle in the form of drinking more than 0.1% of blood alcohol concentration on the roads of Cheongju-gu, Cheongju-gu, Seoul Special Metropolitan City.

Judgment

As seen earlier, this part of the facts charged constitutes a case where there is no proof of crime, and thus, the acquittal is pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the part not guilty is publicly announced pursuant to the main sentence of

The presiding judge, the senior judge and the senior judge.

Judges Lee Jae-soo

Judges Blue Park