In a case where the Defendant was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Crimes by assaulting the driver of an automobile in operation by setting the head of Party A, who was seated in the driver’s seat by hand from the city bus that Party A driven, the case holding that in light of all the circumstances, the Defendant cannot be deemed to have been in operation when he assaulted Party A, and thus, he cannot be held liable for the violation of the same Act.

피고인이, 갑이 운전하는 시내버스에 강아지를 안고 승차하였다는 이유로 갑이 버스에서 내리라고 하자 화가 나 욕을 하고 지갑을 쥔 손으로 운전석에 앉아있는 갑의 머리를 1회 때림으로써 운행 중인 자동차의 운전자를 폭행하였다고 하여 특정범죄 가중처벌 등에 관한 법률(이하 ‘특가법’이라고 한다) 위반으로 기소된 사안에서, 특가법상 운전자폭행죄는 일반 폭행죄에 대한 가중적 구성요건으로서 특별한 사정이 없는 한 그 적용범위를 자동차가 실제 운행 중인 때에만 성립하는 것으로 제한하여야 하고 문언의 의미를 넘어 과도하게 확장하는 것은 적절하다고 할 수 없는데, 피고인이 갑을 폭행한 당시, 버스는 정차 중이었고 갑은 피고인이 내린 후 버스 문을 닫고 버스를 출발시키려고 하였는데, 피고인이 갑을 폭행하자 갑은 피고인이 버스에서 내려 도주하는 것을 막기 위해 급하게 버스를 출발시키고 이어서 버스 문을 닫은 것으로 보이는 등 제반 사정을 종합할 때, 피고인이 갑을 폭행할 때 버스가 운행 중이었다고 볼 수 없어 운전자 폭행에 의한 특가법 위반죄의 책임을 지울 수 없다고 한 사례.

Article 5-10 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 260 (1) and (3) of the Criminal Act

Defendant

Prosecutor

Yellow Shee et al. and one other

Attorney Han-chul

Seoul Northern District Court Decision 2012Gohap647 decided March 25, 2013

The judgment of the court below is reversed.

The prosecution of this case is dismissed.

1. Summary of grounds for appeal;

In light of the relevant evidence and legal principles as to the facts charged in this case, the court below found the defendant not guilty despite the fact that the defendant assaulted the bus driver in operation, which affected the conclusion of the judgment by mistake of facts or misapprehension of legal principles.

2. Determination

A. Summary of the facts charged in this case

피고인은 2012. 8. 26. 22:25경 서울 강북구 우이동 568-7 앞 4.19묘지입구 버스정류장 부근에서, 피해자 공소외인(59세)이 운전하는 선일교통 소속의 서울74사9430호 104번 시내버스에 강아지를 안고 승차하였다는 이유로 피해자가 버스에서 내리라고 하자 화가 나 “이 개새끼들, 104번 회사 새끼들”이라고 욕을 하고 지갑을 쥔 손으로 운전석에 앉아있는 피해자의 머리를 1회 때렸다.

Accordingly, the defendant assaulted the victim who is a driver of a vehicle in operation.

B. Determination on the grounds for appeal

(6) According to the evidence duly adopted and examined by the court below as to whether the bus was in operation at the time of violence by the public prosecutor, the defendant was able to get in the bus parked at the bus stop, i.e., ① intending to get in the bus parked at the bus stop and immediately close the bus door, thereby leaving the bus door at the seat of the bus at the time of leaving the bus door as it is, and thereby, she was in front of the bus at the time of leaving the bus seat and leaving the bus door at the time of leaving the bus door, and ② The victim cannot get out of the bus without leaving the bus seat and getting out of the bus, and returned to the driver’s seat after leaving the bus, and the defendant was able to get out of the bus at the time of leaving the bus door and leaving the bus door at the time of leaving the bus, and ③ The defendant was able to get out of the bus by leaving the bus door to the driver’s seat while waiting to get out of the bus, and she was able to get out the bus by leaving the bus door.

Unless there exist any special circumstances, the crime of assault against a driver under the Act on the Aggravated Punishment, etc. of Specific Crimes is an aggravated constituent element for the crime of general assault, and the scope of application should be limited to only the case where a motor vehicle is in operation, and it is not appropriate to excessively expand beyond the meaning of the language and text. In other words, the following circumstances revealed by the above recognition and the above recognition: ① at the time of the defendant's assault, the bus was stopped and the victim was trying to start the bus after the defendant left the bus; ② The bus was temporarily stopped and the bus was shut down in order to prevent the victim from getting out of the bus; ② However, when the defendant uses the victim, it cannot be deemed that the bus was in operation when the defendant assaults the victim.

Therefore, the defendant cannot be held liable for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the driver's assault. Therefore, the prior prosecutor's assertion on a different premise is without merit.

C. Ex officio determination

On the other hand, if the part of the facts charged of this case excludes the bus operation from the facts charged of this case, the facts charged of this case leaves only simple assault, which cannot be prosecuted against the victim's express intent. The victim explicitly expresses his intention not to have the defendant punished on December 23, 2012, immediately after the prosecution of this case, and thus, the decision not to have the defendant punished should be pronounced in accordance with Article 327 subparagraph 6 of the Criminal Procedure Act.

However, the lower court acquitted the Defendant on the ground that the act of assault constitutes a case where there is no proof of crime or it does not constitute a crime.

Therefore, the court below erred by misapprehending the legal principles as above, which affected the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, since the grounds for reversal as seen above exist, and it is again decided as follows.

New Judgment

The summary of the facts charged of this case is as stated in the above 2. A., and in this case, it comes to the case where the expression of intent to punish a case which cannot be prosecuted against the victim's clearly expressed intention, as seen in the above 2. B. (c) and (c) is withdrawn, and thus, the prosecution of this case is dismissed in accordance with Article 327 subparagraph 6 of the Criminal Procedure Act.

Judges Kim Dong-ok (Presiding Judge)