208No3614 Violation of the Act on Special Cases concerning the Settlement of Traffic Accidents

A (64 years old, female, and non-permanent)

Defendant

Man-Consul

Law Firm Kud Law Firm, Attorneys Choi Jong-soo and Kim Chang-soo

Busan District Court Decision 2008Dadan412 Decided September 9, 2008

January 16, 2009

The lower judgment is reversed. The Defendant is not guilty.

1. Summary of grounds for appeal;

피고인의 항소이유 요지는, 피고인이 이 사건 교통사고 당시 그 도로의 2차로를 진행하고 있었는바 피해자가 그 도로의 1차로를 진행하다가 같은 차로의 차량과 충돌하여 비정상적으로 2차로로 튕겨져 올 것에 대비하여 제동장치를 조작하여야 할 업무상의 주의의무가 없다고 할 것이고, 또한 피고인의 차량이 피해자가 2차로로 튕겨져 전도될 순간에 피해자와 충돌하여 피해자를 역과하였는바 차량운전자가 위험상황을 인식하고 제동조치를 취하기까지 걸리는 시간을 고려해 본다면 피고인이 당시 제동장치를 조작하지 아니한 것은 불가항력이라고 할 수 있으므로, 결국 피해자의 사망에 관하여 피고인에게 업무상의 과실이 없다고 할 것임에도, 피고인에 대한 공소사실을 유죄로 인정한 원심판결에는 사실을 오인하거나 법리를 오해하여 판결에 영향을 미친 위법이 있다는 것이다.

2. Determination

A. Summary of the facts charged in this case

On November 18, 2007, the Defendant is a person engaging in driving of the Busan mountain. Around November 19, 2007, the Defendant driven the above bus with the driver’s duty of care to prevent the accident by properly operating the brake system and driving it along the same direction as the Defendant’s vehicle, and driving the two-lane road in front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the front of the rear-gu in Busan along the front of the front of the front of the vehicle. However, there were many vehicles waiting for or driving on the same direction as the one in the front of the front of the front of the front of the front of the vehicle, and caused the victim to drive the vehicle with the front of the front of the two-way vehicle without being able to drive the vehicle with the front of the front of the front of the front of the front of the front of the latter.

B. Judgment of the court below

The court below found the defendant guilty of the facts charged against the defendant based on the defendant's partial statement, the witness D's legal statement, the E's statement, the E's statement, the fact-finding report, the scene of the accident, the body records at the scene of the accident, the body records at the request of appraisal, the photo (accident scene, vehicle, the changer, etc.), and the body examination report, and sentenced the defendant to a fine of three million won.

On the other hand, as to the defendant's assertion that the defendant cannot be held liable for the death of the victim because he could not avoid any shock with the victim by exercising due care on the wind that the victim was just front of the defendant's vehicle at the time of the accident, according to the evidence of this case, the defendant could not be held liable for the death of the victim at the time of the accident. However, according to the part of the facts charged of this case that "the defendant discovered the victim and did not take bracs, while leading about about 8 meters while driving the victim," the defendant stated in the court of the court below that "the defendant did not properly proceed with the movement after the shock of the victim at the time of the accident" and the above evidence, the court below rejected the defendant's assertion that there was causation between the defendant and the victim's failure to perform his duty of care as to the part of the victim at the time of the accident.

C. Determination of party members

(1) Facts of recognition and statements of witnesses (A)

Comprehensively taking account of the evidence duly adopted and examined by the court below and the court below, the following facts are recognized.

1) On November 18, 2007, the victim driven a 125cc cc occ occ occ on the 19:03rd of November 18, 2007, driving a two-lane road in front of the head office in front of the occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ occ. (the occ occ occ occ occ occ o to the occ occ

2) 피해자는 위 충돌사고로 인하여 위 오토바이로부터 이탈하여 위 승용차의 우측 방향으로 튕겨져 날아가 위 편도 2차로 중 2차로 도로면에 떨어져 쓰러졌고, 위 오토바이는 위 승용차 뒷범퍼 오른쪽 뒷방향으로 튕겨져 앞부분이 2차로 쪽으로 넘어간 상태에서 1차로와 2차로 중간에 걸쳐서 넘어졌다.

3) At the time, the Defendant driven a pressle vehicle, coming from the Home Pusers located in the Southern-dong of Busan Metropolitan City in order to drive the two lanes of the said two lanes in the direction of a large speed, and proceeded with the two lanes in the direction of a large speed, facing the victim without any operation of the brake, and stopped from the first point of collision at approximately 30 meters prior to the point of collision.

4) As above, the victim was faced with the head on the road side by towing about 8 meters by the Defendant’s vehicle, and died of two parts and chest damage at that site.

5) On the other hand, the time that the driver of the vehicle generally takes to recognize and control the danger is about 0.8 seconds.

(b) a witness's statement;

1) D의 진술이 사건 교통사고가 발생한 반대편 차로 쪽 인도에서 위 교통사고를 목격하였다. 피해자의 오토바이가 가속기를 당길 때 나는 '웽’하는 소리를 내자마자 '빠 방'하면서 차량의 오른쪽 뒷부분 모서리를 받았다. 피해자가 넘어지는 것까지 보았는데, 넘어지자마자 순간적으로 피고인의 차량이 지나갔고 그 다음에는 피해자가 보이지 않았다. 눈 깜짝할 사이에 일어난 상황인데, 하나, 둘, 셋, 넷으로 센다면 하나와 둘 사이인 것 같다. 피고인의 차량이 '쌩'하게 피해자를 충격한 것은 아니었고 빨리 가지는 않았다.

2) B의 진술이 사건 교통사고가 발생한 지점에 정차하여 사이드브레이크를 올리고 동승한 친구와 이야기하던 중 갑자기 위에서 ‘쿵'하는 소리가 났다. 그래서 오른쪽 약 45도 전방을 보았을 때 피고인의 차량이 지나갔고 그 차량 오른쪽 측면에서 피해자가 떨어졌다. 정확한 속도는 모르겠는데 봉고차가 그렇게 빠르게 진행하지 않았다.

(2) Determination

First of all, we examine whether the defendant could avoid a collision with the victim if he had fulfilled his duty of care in the course of his duty of care. In other words, the following circumstances are revealed in the victim's statement, namely, the point of time going beyond the two-lanes in the defendant's direction and the point of time between the victim's heavy time. The victim's difference in the two-lanes does not seem to have any time between the victim's two-lanes. The victim's vehicle driver could not expect a general vehicle driver and the situation where the victim sent the victim's signal to proceed to the two-lanes before the collision of the two-lanes, and the defendant could not be able to prepare for the movement of the victim in advance. On the other hand, the defendant's excessive speed or driving under the influence of alcohol seems to have no negligence, etc., the court below's judgment was justified in its judgment to the purport that the defendant's vehicle did not have a duty of care to avoid the collision.

Then, as to whether the Defendant operated the brake appropriately, it is possible to attract about 8 meters to the victim. The following circumstances revealed in the above recognition of the situation, i.e., about 0.8 seconds, but may be shorter than 0.8 seconds depending on the Defendant’s homeb or gender or driving career. In the case of the Defendant, the Defendant’s vehicle is the female driver at 43 years old at the time of the accident, and the Defendant’s vehicle might not have been able to attract more than 0.8 seconds until the Defendant operated the brake system (in particular, if the object of the Defendant’s body is unknown in this case, it appears that the Defendant would not have been able to handle the vehicle at a rapid speed than 0.8 seconds, considering the fact that the Defendant’s vehicle is the victim’s driver at the time of the accident, it appears that the Defendant would not have been able to be able to take into account the speed of the vehicle at the time when the vehicle was driven by the front direction of the driver at the time of the accident (in light of the general vehicle speed of the victim).

Furthermore, even if the Defendant operated the brake promptly to attack the victim, as long as it appears that the Defendant’s vehicle could not prevent the victim from proceeding to a certain extent in light of the speed and duration of the Defendant’s vehicle, it cannot be deemed that the Defendant’s error caused the death of the victim even if the Defendant’s motion was somewhat delayed.

Therefore, the evidence presented by the prosecutor alone is insufficient to recognize that the defendant violated the duty of care as a driver of the motor vehicle in the occurrence of the traffic accident in this case, or there is no other evidence to support this. Thus, the defendant's violation of the duty of care in the occurrence of the traffic accident in this case is not recognized, but it is erroneous in the judgment of the court below which found the defendant guilty of the facts charged against the defendant, which affected the conclusion of the judgment. The defendant's assertion pointing

3. Conclusion

Thus, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is the same as the above 2.A, and the above 2.C. For the same reason, the facts charged in this case constitutes a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

The presiding judge, the number of judges

Judges Park Jae-in

Judges Nam-jin