Method for the court of the lawsuit of the administrative litigation to determine the truth of the statement of fact, and whether the court of the lawsuit of the administrative court can acknowledge facts contrary to the facts established in the relevant criminal trial (negative in principle)

Article 8(2) of the Administrative Litigation Act, Article 202 of the Civil Procedure Act

Plaintiff (Law Firm Lee Li-EL, Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

The Commissioner of Gangwon-do Police Agency

Seoul High Court Decision (Chuncheon) 2015Nu1231 decided May 4, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In full view of the adopted evidence, the court below acknowledged the facts as stated in its reasoning, such as the fact that the defendant, while under the influence of alcohol level 0.119%, was taking the instant disposition revoking the Plaintiff’s driver’s license on the ground that the Plaintiff driven the instant vehicle owned by the Plaintiff, and it is difficult to readily conclude that the instant vehicle was driving the instant vehicle at a low slope level, but on the contrary, it is difficult to recognize that the Plaintiff driven the instant vehicle under the influence of alcohol, and therefore, it is difficult to recognize that the Plaintiff driven the instant vehicle under the influence of alcohol level, and therefore, the disposition of this case was unlawful on the ground that the Defendant bears the burden

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. The court of the lawsuit in an administrative litigation shall determine whether the facts alleged are true in accordance with logical and empirical rules on the basis of the ideology of social justice and equity by taking into account the overall purport of pleadings and the result of examination of evidence (Article 8(2) of the Administrative Litigation Act and Article 202 of the Civil Procedure Act). In addition, even though the court of the lawsuit in an administrative litigation is not bound by the recognition of facts in the relevant criminal trial, the facts established in the relevant criminal trial are minimal evidence in the relevant administrative litigation. Thus, barring any special circumstance where it is deemed difficult to adopt a judgment of facts in the relevant criminal trial in light of other evidence submitted in the relevant administrative litigation, the facts opposed thereto cannot be recognized (Supreme Court Decision 80Nu18 delivered on January 27, 1981).

B. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

(1) On December 14, 2015, the Plaintiff-gu Nonparty left the place after parking the instant vehicle at the restaurant parking lot located on the road side at the end of the dispute with the Plaintiff while driving the Plaintiff on the top of the instant vehicle while driving the Plaintiff, who was under influence of alcohol around 19:10 on December 14, 2015.

(2) After that, the instant vehicle moved across a two-lane road from the back to the drainage channel for the opposite side, and the accident of cutting the iron sign occurred, and the neighboring residents reported the accident at around 20:24 on the same day.

(3) At the time when the police officer in receipt of the report arrives at the site after diving, the instant vehicle was left at the location of parking (P) while being affected by the starting, and the Plaintiff was seated at the driver’s seat of the instant vehicle.

(4) During the investigation process, the Nonparty stated that “it is not memoryed as to how the instant vehicle was parked and unloaded at the time of leaving the vehicle, but it is clear that he/she has a parking Bracker, and he/she has a driving habits who is placed at the place of parking (P) in his/her usual parking.” During the investigation process, the Nonparty stated that “the vehicle is under the influence of alcohol, but it would be sufficient for him/her to memory the operation of the vehicle,” and that “it would be suitable for him/her to drive the vehicle.”

The Plaintiff was issued a summary order of KRW 3 million and became final and conclusive on the ground of the facts constituting the crime that “under the influence of alcohol level 0.119%, the Plaintiff driven approximately seven meters of the instant vehicle while under the influence of alcohol level” and did not request formal trial.

(6) The Plaintiff asserted to the effect that the instant disposition was harsh in view of all the grounds for normal reference, including the fact that the driving distance is about seven meters without dispute between the administrative appeal and the first instance court, and the fact that the driving distance is about 7 meters, etc., the Plaintiff asserted to the effect that the instant disposition was harsh. However, the Plaintiff did not drive the instant vehicle only when he moved the place from the first place to the driver’s seat, and the Plaintiff did not drive the instant vehicle. As such, the Plaintiff’s assertion was added to the circumstance in which it is difficult to know that the vehicle was backward and

C. Examining these facts in light of the legal principles as seen earlier, it is difficult to readily conclude that even if considering all the evidence submitted by the lower court to the lower court in this case, it constitutes “where it is deemed difficult to adopt a judgment on facts in the relevant criminal trial” for the following reasons

(1) For the purpose of deeming that the instant vehicle was in progress without being driven by the Plaintiff, as alleged by the Plaintiff, the Nonparty changed the speed change to “n” (N) while operating the instant vehicle, and left the instant vehicle with only the parking boom without holding the vehicle, and the circumstance that the Plaintiff moved the vehicle to the seat of the driver ought to have occurred annually without the Plaintiff’s intention.

(2) However, according to the evidence submitted by the court below, it is unclear whether the non-party used a trial operation while parking the instant vehicle, and what location the speed change was left, and rather, the plaintiff's assertion that "the non-party was unable to take only a parking hub after the non-party used a motor vehicle as a motor vehicle under the influence of the trial operation of the instant vehicle," is inconsistent with the non-party's statement as to his driving habits, as well as with the ordinary driver's practice.

(3) 설령 원고 주장과 같이 소외인이 시동을 켠 채로 주차 브레이크만 채우고 변속기는 중립(N)에 둔 상태에서 하차하였다 하더라도, 운전석에 앉아 있던 원고의 의사와 무관하게 주차 브레이크가 해제되었다는 것은 이례적인 것으로 보인다.

Therefore, inasmuch as the above summary order became final and conclusive because the Plaintiff did not request formal trial with regard to the summary order that the Plaintiff driven the instant vehicle while under the influence of alcohol, it is difficult to view the instant disposition as unlawful on the sole basis that the possibility that the instant vehicle was driven without the Plaintiff’s intent, as alleged by the Plaintiff, cannot be ruled out.

D. Nevertheless, the lower court determined that the instant disposition was unlawful on the grounds stated in its reasoning. In so doing, it erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the probative value of the relevant criminal trial, thereby adversely affecting

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)