Whether a crime of violating Articles 81 subparag. 2 and 12(1) of the Automobile Management Act due to the “application for the registration of the transfer of ownership” is an immediate crime (affirmative), and whether a violation of Articles 84(2)2 and 12(1) of the former Automobile Management Act is also the same (affirmative)

Articles 12(1) and 84(2)2 of the former Automobile Management Act (Amended by Act No. 9449, Feb. 6, 2009); Articles 12(1) and 81 subparag. 2 of the Automobile Management Act; Article 5 of the Addenda (Amended by Presidential Decree No. 21789, Feb. 6, 2009); Article 26 subparag. 1 (see current Article 26(1)1) of the former Decree on the Registration of Motor Vehicles (Amended by Presidential Decree No. 23232, Oct. 19, 201); Article 26 subparag. 1 (see current Article 26(1)1) of the former Decree on the Registration of Motor Vehicles (Amended by Presidential Decree No. 23232, Oct. 19, 201)

Defendant

Defendant

Daegu District Court Decision 2012No2418 Decided November 16, 2012

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

The grounds of appeal are examined.

1. As to the violation of the Automobile Management Act, alteration of private documents, and the uttering of altered private documents due to the unlawful use of a registration number plate

Examining the evidence duly admitted by the first instance court, which maintained the reasoning of the lower judgment, the lower court was justifiable to have determined that each of the facts charged was guilty on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, exceeding the bounds of the principle of free evaluation of evidence

2. As to the violation of the Automobile Management Act due to the non-application for the registration of ownership transfer

This part of the grounds of appeal is examined ex officio before determining the grounds of appeal.

A. The summary of this part of the facts charged is that even though a person who acquired a registered motor vehicle applies for the registration of transfer of the ownership of the motor vehicle, the defendant did not apply for the registration of transfer of ownership without justifiable grounds even though he took over (motor vehicle registration number omitted) BMW passenger motor vehicle (hereinafter “instant motor vehicle”) from the non-indicted on March 3, 2009, and the prosecutor prosecuted the above facts charged by stating the applicable provisions in the indictment as stipulated in Articles 81 subparag. 2 and 12(1) of the Motor Vehicle Management Act.

B. On the grounds indicated in its reasoning, the lower court maintained the first instance court’s judgment that found the Defendant guilty of this part of the facts charged, and subsequently corrected it ex officio as “Article 81 subparag. 2 and Article 12(1) of the former Automobile Management Act (amended by Act No. 10721, May 24, 2011) by deeming that “Article 81 subparag. 2 and Article 12(1) of the former Automobile Management Act (amended by Act No. 9449, Feb. 6, 2009)” as “Article 81 subparag. 2 and Article 12(2) of the former Automobile Management Act (amended by Act No. 9449

C. However, we cannot agree with the above determination by the court below for the following reasons.

1) According to Article 12(1) of the Automobile Management Act (amended by Act No. 9449 of Feb. 6, 2009, effective February 7, 2010, a person who acquires an automobile registered as a transferee shall file an application for the registration of transfer of ownership of the automobile with the Mayor/Do Governor as prescribed by Presidential Decree. According to Article 26 subparagraph 1 of the former Decree of the Automobile Registration Decree (amended by Presidential Decree No. 23232 of Oct. 19, 201) as of the enforcement of the Act, a person who fails to file an application for the registration of transfer of ownership within 15 days from the date of purchase of the automobile. According to Article 81 subparagraph 2 of the amended Act, a person who fails to file an application for the registration of transfer of ownership in violation of Article 12(1) of the said Act (hereinafter “former Act”) to be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding three million won prior to the enforcement of the Act.

Meanwhile, according to Article 12(1) of the former Automobile Management Act (amended by Act No. 9449 of Feb. 6, 2009; hereinafter “former Act”) and Article 26 subparag. 1 of the former Decree on the Registration of Automobile (amended by Presidential Decree No. 21789 of Oct. 19, 2009), a person who acquires a motor vehicle is obligated to file an application for the registration of transfer of ownership with the Mayor/Do Governor within 15 days from the date of purchase of the motor vehicle. However, a person who violates such obligation can be punished by a fine for negligence not exceeding 50,000 won pursuant to Article 84(2)2 of the former Act.

2) The lower court found the Defendant guilty of this part of the facts charged and deemed that Articles 81 subparag. 2 and 12(2) of the former Act apply to this part of the charges. However, Article 12(2) of the former Act provides that the person who is obligated to apply for the registration of the transfer of the ownership of a motor vehicle is a person who registered the motor vehicle transaction business (hereinafter “motor vehicle dealer”), and the crime of violating Articles 81 subparag. 2 and 12(2) of the former Act is a motor vehicle dealer as the principal agent of the crime. The facts charged in this part of the facts charged, applicable provisions stated in the indictment, and the facts charged by the first instance court maintained by the lower court do not mean that the Defendant did not perform his/her duty to apply for the registration of the transfer of the ownership of a motor vehicle

3) Furthermore, in full view of the aforementioned provisions, the crime of violation of Articles 81 subparag. 2 and 12(1) of the amended Act shall be deemed to be a crime immediately established and completed as soon as the crime is completed due to the transferee’s failure to file an application for ownership transfer registration within 15 days from the date of the purchase of the registered motor vehicle. Likewise, the violation of Articles 84(2)2 and 12(1) of the former Act shall be deemed to be a crime immediately established and completed as soon as the transferee fails to file an application for ownership transfer registration within 15 days from the date of the purchase of the motor vehicle.

However, according to the evidence and records duly adopted by the first instance court which maintained the lower court, the Defendant purchased the instant automobile from the Nonindicted Party on March 3, 2009, but did not file an application for the registration of transfer of the said automobile ownership until the date of the lower judgment’s decision.

Examining the relevant provisions of the amended Act and the former Act and the legal principles as seen earlier in light of the above facts, the Defendant’s failure to file an application for the registration of the transfer of ownership by March 18, 2009, which was 15 days or less from the date of purchase of the instant vehicle, and the establishment and completion of the breach of duty on March 19, 2009, and pursuant to Article 5 of the Addenda to the amended Act, the Defendant’s violation of the duty may be imposed by applying Article 84(2)2 and Article 12(1) of the former Act pursuant to Article 5 of the Addenda to the amended Act. As such, the lower court should have pronounced innocence pursuant to the former part of Article 325 of the Criminal Procedure Act on the grounds that this part of the charges did not

Nevertheless, the court below erred in the misapprehension and application of statutes and affected the conclusion of the judgment by applying Article 81 subparagraph 2 of the former Act and Article 12 (2) of the former Act to this part of the charges.

3. Scope of reversal

For the above reasons, the part of the judgment of the court below which violated the Automobile Management Act due to the failure to file an application for the registration of transfer of ownership of a motor vehicle should be reversed. Since this part and the remaining crimes that the court below found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)