Whether a person who has obtained a student license can be punished when he/she drives a vehicle for any purpose other than driving practice in violation of the rules of practice by deeming that he/she is a driver without a license under the Road Traffic Act (negative)

Article 80(2) of the former Road Traffic Act (Amended by Act No. 11690, Mar. 23, 2013); Articles 43, 93(3), and 152 subparag. 1 of the Road Traffic Act; Article 53 [Attachment Table 18], 55, and 91(2) [Attachment Table 29] of the Enforcement Rule of the Road Traffic Act

[Plaintiff-Appellant] Plaintiff 1 and 17 others (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Military prosecutor;

Attorney Kim Young-young

High Court for Armed Forces Decision 2013No189 Decided November 26, 2013

The appeal is dismissed.

The grounds of appeal are examined.

Article 80(2) of the former Road Traffic Act (amended by Act No. 11690, Mar. 23, 2013) provides that "the Commissioner of the Local Police Agency shall classify and manage the types of vehicles that can drive according to the scope of driver's licenses as follows. The types of vehicles shall be prescribed by Ordinance of the Ministry of Public Administration and Security." Article 80(2) of the same Act provides that "The types of vehicles that may drive according to the scope of driver's licenses shall be classified into Class I driver's licenses (large-type licenses, ordinary licenses, small-sized licenses, special licenses), Class II driver's licenses (ordinary licenses, small-type driver's licenses, driver's licenses, and driver's licenses), and student licenses (Class I driver's licenses, Class II driver's licenses, and Class II driver's licenses). Article 53 of the Enforcement Rule of the Road Traffic Act [Attachment 18] of the Road Traffic Act provides that "no person shall drive any motor vehicle without obtaining a driver's license from the Commissioner of the Local Police Agency pursuant to Article 80."

Meanwhile, Article 55 of the Enforcement Rule of the Road Traffic Act provides that the matters to be observed by a person who has obtained a student license shall be observed when he/she conducts the driving practice on the road. Article 55 (1) of the Enforcement Rule of the Road Traffic Act provides that the person who has obtained the driver's license shall undergo the instruction by him/her, and subparagraph 2 provides that the person who has obtained the driver's license shall not drive the motor vehicle for any purpose other than the driving practice, such as driving the motor vehicle for business, and subparagraph 3 of Article 93 (3) of the Road Traffic Act provides that "if the person who has obtained the driver's license causes a traffic accident by intention or negligence during the driving, or violates this Act, or any order or disposition issued under this Act, the driver's license shall be revoked." Article 91 (2) [Attachment 29] of the Enforcement Rule of the Road Traffic Act provides that even if the person who has obtained the driver's license violates the above matters to be observed, the driver's license shall be revoked.

In full view of these provisions, the scope of driver's license is set on the basis of the type of a vehicle which can drive, and the case of operating without obtaining a driver's license shall be deemed to fall under the scope of driver's license. Thus, it cannot be determined on the basis of the actual purpose of driving. Therefore, even though a person who has obtained a driver's license did not comply with the matters to be observed in driving for any purpose other than driving practice, it may impose sanctions such as revocation of a driver's license as to non-compliance with the matters to be observed, the driver's license cannot be punished (see Supreme Court Decision 2000Do5540, Apr. 10, 201).

Examining the reasoning of the judgment below in light of the above legal principles and records, it is just for the court below to maintain the court of first instance which acquitted the defendant on the ground that the act of violation of the Road Traffic Act (unlicensed driving) among the facts charged in this case was not a valid driver's practice, as long as the defendant had been issued a valid driver's practice license, and there is no error of law by misunderstanding the legal principles on the crime of violation of the Road Traffic Act (unlicensed Driving

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)