2020 Highly 756 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

(Bodily Injury)

○○ (84years, South Korea), self-employed

Residentialization City

Reference domicile Gyeongbuk-gu District

Before the opening of the trial, the appeal shall be dismissed.

Attorney (National Ship)

March 19, 2021

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

The Defendant is a person who is engaged in the operation of Lone Star Cargo Vehicles.

On August 24, 2020, the Defendant driven the above cargo vehicle on August 15, 2020, and moved the roads adjacent to the A elementary school in the Dobong-gu in the eposi in the eposi in the epolitic City into the flood distance from the B apartment bank.

Since there is a protective zone for children, a person engaged in the driving of a motor vehicle has a duty of care to safely drive the motor vehicle by checking the right and the right and the right and the right of the motor vehicle at a speed of less than 30 km per hour.

Nevertheless, the Defendant, who did not well see the right and the right and the right and the right and the right are negligent in by neglecting the red signals from the right and right side of the front side of the said cargo vehicle, brought a bicycle for driving the victim Kim Jong-○ (Nam, 6 years old) who dried the crosswalk in violation of the red signals signals, into the front side part of the said cargo vehicle.

Ultimately, the Defendant suffered injury to the victim, such as salt, tension, etc., in need of approximately two weeks of treatment due to occupational negligence.

2. Determination

(a) Details of statutory duty of care;

Article 5-13 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a driver of a motor vehicle commits a crime under Article 3 (1) of the Act on Special Cases concerning the Settlement of Traffic Accidents against a child in a child protection zone shall be subject to aggravated punishment, and Article 12 (3) of the Road Traffic Act provides that "the driver's duty to observe the traffic speed (30 km speed)" and "the duty to drive in consideration of the safety of the child" shall be subject to the driver's duty of care. Of them, "the duty to drive in consideration of the safety of the child" shall be construed as a general duty to protect the children as stipulated in the Road Traffic Act (Article 49 (1) 2 (a) and Article 51 (2) of the Road Traffic Act, etc.) including the general duty to protect the children as a premise, and the duty to drive in consideration of the risk of traffic accidents to the children.

On the other hand, when a bicycle rider crosses the road at a crosswalk, he shall get off the bicycle and walk the bicycle (Article 13-2 (6) of the Road Traffic Act).

B. Determination

1) According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

① In the event of the instant accident, a road adjacent to A Elementary School was set at a speed of 30 km per hour as a children’s protection zone, but the Defendant driven the said cargo at a speed of 25.78 km below the restricted speed.

② The Defendant’s driving vehicle is a two-lane road along the intersection in the front direction. Before entering the intersection, a crosswalk with signal lights was installed, and the freight was parked in the two-lane immediately preceding the crosswalk. The Defendant was driving along the one-lane of the said road.

③ At the time of the instant accident, the pedestrian signal of the crosswalk was red, and the victim or another child cannot be seen as not only in the crosswalk but also in the surrounding roadway and sidewalk, until the instant accident occurred.

④ The victim got a bicycle at the age of 6 as a child and parked on the two lanes, and turned the bicycle to the crosswalk itself. While the front part of the cargo vehicle driven by the Defendant entered the middle part of the crosswalk, the collisioned with the front part of the said cargo vehicle at the middle part of the crosswalk. The time from the time the victim entered the crosswalk to the point of the collision is about 2 seconds.

2) First, according to the above facts of recognition, the Defendant is recognized to have observed the passage speed (30 km a hour) in the children protection zone.

다음으로, 피고인이 ‘어린이의 안전에 유의하면서 운전하여야 할 의무’ 및 전방 주시의무를 위반하였는지에 관하여 본다. 위 인정사실과 이 사건 기록을 통하여 인정되는 다음과 같은 사정 즉, ① 피고인은 차량 진행 신호에 따라 운행하고 있었고, 당시 횡단보도나 그 주변 도로에 다른 사람이나 어린이가 보행하고 있지 않았으므로, 피고인으로서는 적색 신호를 위반하여 횡단보도에 보행자나 자전거 운전자가 갑자기 나타날 것이라고 예상하기 어려웠던 점, ② 1차로의 피고인 운전 차량과 2차로에 주차된 화물차의 위치, 피해자가 2차로에 주차된 화물차 뒤에서 갑자기 튀어나온 상황을 종합하면, 피해자가 자전거를 타고 횡단보도에 진입하는 모습은 2차로에 주차된 화물차에 의해 가려져 있었으므로, 피고인이 전방주시를 하였더라도 피해자가 도로로 나오는 것을 미리 발견하기 어려웠을 것으로 보이는 점, ③ 피고인이 피해자를 인식할 수 있었던 시점부터 충돌시점까지의 시간 및 피해자가 자전거를 탄 채 횡단보도에 진입하여 보행자보다 속력이 빨랐던 상황을 고려할 때, 피해자를 발견하는 즉시 제동장치를 조작하였더라도 충돌을 피하지 못하였을 것으로 보이는 점 등을 종합하면, 검사가 제출한 각 증거만으로는 피고인이 ‘어린이의 안전에 유의하면서 운전하여야 할 의무’ 및 전방주시의무 등 업무상 주의의무를 위반하였다고 인정하기에 부족하고, 달리 이를 인정할 증거가 없다.

3. Conclusion

The facts charged in this case constitute a case where there is no proof of a crime, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and a summary of judgment is announced pursuant to Article 58(2) of the Criminal Act.

Judges Kim Jong-tae

Judges Han Han-ga

Judge Bar Han-han