2019No3085 Violation of the Act on Special Cases concerning the Settlement of Traffic Accidents (Death or Injury)

Gangwon○○ (96************), Company Won

Residence Mine District

Standard place of registration:

Prosecutor

Mado-Appellee (prosecution), Kim Jong-chul (Public trial)

Central of Law Firm

Attorney Kim Hyun-do

Gwangju District Court Decision 2018 Godan1731 Decided November 28, 2019

February 9, 2021

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment without prison labor for ten months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

1. As a result of the appraisal by the National Scientific Investigation Agency of the Reasons for Appeal by the public prosecutor (in fact), it was confirmed that the vehicle of the defendant immediately before the accident in this case was located in three lanes and the vehicle of the victim (the test observer) was located in two lanes, and that the vehicle of the defendant was located in two lanes immediately after the accident in this case. Therefore, it is evident that there was a change in the vehicle of the defendant in this case before and after the accident in this case. Furthermore, since the change in the vehicle of the defendant was made very close to the accident in this case, it is obvious that the vehicle of the defendant in this case was changed rapidly in order to avoid the vehicle of the defendant in this case, the accident in this case occurred. Nevertheless, the judgment of the court below acquitted the defendant in this case

2. Determination

A. Whether the Defendant’s vehicle changed the lane before and after the instant accident

1) The ○○○○○ affiliated with the National Institute of Scientific Investigation shall prepare a traffic accident analysis report by making a business trip to the accident site on the basis of black stuff images (scambling images marked on a stop vehicle on the opposite side of the accused and the victim’s vehicle), CCTV images (scamb CCTV images located on the right side of the driving direction of the accused and the victim’s vehicle), and the said written appraisal report.

Based on this, this court and the court of the court below stated to the following purport. In light of the procedure for overlapping the road map development and CCTV images that can be identified in the statement below with real-time CCTV images, the vehicle location analyzed by the above analysis method is anticipated to have a considerable accuracy, and in addition, in addition to the fact that ○○, an appraiser belonging to the National Institute of Scientific and Investigative and Investigation, has made a statement that "the method of analyzing black stuff images and CCTV images is not so erroneous that the three-lanes can be verified by mistake, but is now being used by the current interpretation of the accident," the traffic accident analysis appraisal prepared by the above ○○○ and the statements made by the court of the court and the court of the court of the court below on this basis are sufficiently reliable.

A) In preparing a traffic accident analysis report, it is analyzed by means of a road map that sets up a location similar to a black stuff image and a photo that photographs a scene of an accident in a fireproof angle to identify the two-way location. CCTV images are overlapped with CCTV images that were taken in real time from CCTV as evidence and analyzed by specifying the location of the vehicle and the difference in CCTV images.

B) According to the black image, the shape immediately before the Defendant vehicle moves from the third lane to the second lane is confirmed, and according to CCTV images, the form immediately after the Defendant vehicle moves from the third lane to the second lane is confirmed. Not only the above two images are continuous but there is a time gap between the time point when the black image ends and the time when CCTV images begin. The vehicle moving of the Defendant vehicle is not confirmed in the second image when there is a time gap.

B) As a result of visiting the instant accident scene with a road map, the Defendant’s vehicle immediately preceding the instant accident was confirmed to have three lanes for the Defendant’s vehicle, and the victim’s vehicle was proceeding two lanes for the instant accident scene, and the CCTV image was overlapped with real-time CCTV images. As a result, the Defendant’s vehicle was confirmed to have entered two lanes at the time when it was first confirmed from CCTV images.

D) The difference between the location of the last victim’s vehicle (the last end means the last point at which the vehicle near the Defendant’s vehicle can be divided technically) and the first Defendant’s vehicle location in CCTV images is less than 6.5 meters, and the time gap between the two images is very short, and the vehicle of the Defendant is deemed to be changed from three lanes to two lanes.

E) At the time the Defendant’s vehicle changed from the three lanes to the two lanes, the victim’s vehicle immediately adjoined to the two lanes, and thus, there is a high possibility that the instant accident occurred in order to avoid the Defendant’s vehicle entering the two lanes, making the victim’s vehicle sudden toward the left side in order to avoid the vehicle entering the two lanes.

F) The Defendant’s vehicle appears to have returned to the two lanes immediately after the change of the three lanes from the three lanes to the two lanes. This is the situation in which the vehicle did not see the rear lane and changed the two lanes, but the latter vehicle becomes aware of the existence of the vehicle while entering a light or avoided operation, and return to the original lane on the rear side and return to the previous lane again while confirming the absence of the vehicle on the rear side.

G) Generally, if the direction, etc. was given in the black stuff images or CCTV images, such form is highly likely to be identified, but in the instant black stuff images or CCTV images, the Defendant vehicle’s direction, etc. is not identified.

2) In addition to the above-mentioned statements in this court and the original trial, comprehensively taking account of the images of the video files CD in the accident center and the statement in the traffic accident analysis report, the defendant vehicle can be recognized as having changed the lane from the third to the second one before and after the accident in this case (the defendant submitted the reference document on February 4, 2021, which was after the argument of this court was concluded, and recognized as having changed the lane from the third to the second one at the time of the accident in this case).

B. Negligence and causation of the defendant

Comprehensively taking account of the following circumstances acknowledged by the court of first instance and the court of original instance, including the statement at the court of first instance, and the evidence duly adopted and examined by this court, the defendant changed the two-lane from the left side to the two-lane although the victim's vehicle was negligent in neglecting his duty of care to safely change the course, and the victim's vehicle was in the two-lane from the left side to the two-lane. As a result, in order to avoid the defendant's vehicle, the victim's vehicle rapidly changed the direction of operation into the left side of the road, which led to a sudden change into the two-lane, the accident of receiving the vehicle waiting in the opposite side at the center of the road. The victim was found to have died from the two-lanes of both sides and the two-lanes of the vehicle. (1) The victim's vehicle confirmed by the black image from the two-lane to the left side of the two-lane vehicle is the same as the victim's two-lane vehicle at the front to the left side of the two-lane.

2) Examining the situation immediately after the moving of the Defendant’s vehicle identified by CCTV images from a three-lane to a two-lane (referring to the situation at which it is confirmed by a photograph 5 of the traffic accident analysis report; hereinafter “the situation immediately after the movement”), it is the situation in which the front right side of the Defendant’s vehicle enters a two-lane.

3) There is a time gap in the situation immediately before and immediately after the movement. There is a time gap. It is difficult to clearly understand which time gap is, i.e., the following circumstances: ① the location of the victim in the situation immediately before and after the movement of the vehicle and the distance range of the vehicle in the situation immediately after the movement (referring to the distance difference between the front part of the vehicle in the situation immediately before and after the movement of the vehicle) is 6.5 meters (see subparagraph 6 of the traffic accident analysis document); ② the vehicle in the situation immediately before the movement was in front of the victim (see subparagraph 4 of the traffic accident analysis document); ③ In light of this, it is difficult to clearly understand the distance of the vehicle in the situation immediately before and after the movement, which is shorter than 6.5 meters, and ④ the distance is less than 40km/h (the distance of the vehicle in question is less than 60km/5 meters at the time of the movement).

4) Comprehensively taking account of the above circumstances, the time required for the vehicle of the defendant to change the lane from the three lanes to the two lanes is limited to 0.585 seconds, and the victim was unable to deviate from the two lanes, and the vehicle of the victim was considerably close to the left side of the vehicle of the defendant (in addition, even though the direction, etc. of the vehicle of the defendant is not identified in the black box image and CCTV image), the victim did not have to change the direction of the vehicle to the left side of the vehicle rapidly due to the change of the two lanes from the three lanes of the vehicle of the defendant vehicle to the two lanes (the victim's vehicle was moving the two lanes normally until the accident occurred before the accident, and the vehicle of the victim is unlikely to intervene in the driving of the vehicle of the victim or the vehicle of the victim as it is extremely unlikely that the vehicle of the victim would intervene in the vehicle of the victim without the vehicle of the victim.

5) In order to avoid Defendant vehicles, the victim vehicle seems to have lost her ability to enjoy prompt efforts by changing its operation direction rapidly. Generally, when the vehicle changes its operation direction rapidly, it may lose her ability to enjoy prompt efforts. In such a case, an accident that conflicts with surrounding structures, etc. may result in the driver’s death. Therefore, a proximate causal relation may be sufficiently recognized with the change of the vehicle of Defendant vehicles, the loss of her ability to enjoy early traffic, the occurrence of the accident caused by the accident, and the death of the victim caused by the accident.

(vi) Of course, it does not always lose the ability of steering by changing the direction of rapid operation, but it is difficult to eliminate the possibility that the victim's failure, such as the victim's net manipulations, has been involved in the loss of the victim's ability to enjoy early operation. However, as long as the defendant's vehicle caused a sudden change in the direction of operation of the victim's vehicle, it is difficult to see that a proximate causal relation exists between the victim's death and the loss of the ability to enjoy early operation, even though there was an interference by the victim's negligence, such as the net manipulations, in changing the direction of rapid operation, and the loss of the ability to enjoy early operation.

C. Sub-committee

Although the lower court should be found guilty of the facts charged in the instant case, it erred in the judgment of the lower court by misapprehending the fact that the Defendant did not recognize the fact that the Defendant caused the death of the victim due to occupational negligence, and thus, acquitted the Defendant. Therefore, the lower court was no longer able to maintain

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment shall be

【Discretionary Judgment】

Criminal facts

The defendant is a person who is engaged in driving a franchise-free vehicle.

On February 1, 2018, the Defendant driving the above vehicle at around 18:30, and changed the course to a two-lane, using three-lanes in the direction of the training intersection from the direction of the training intersection in the direction of the training intersection. In such cases, a person engaged in driving a motor vehicle has a duty of care to operate the direction, etc. in advance, and to change the course safely by taking into account the traffic conditions of the front and rear intersections.

Nevertheless, the Defendant neglected to do so and led the victim's 00 (year 50) driving on the two-lanes due to the negligence of changing the course, and avoided the observers installed at the center of the road to the left-hand side while avoiding the risk of the observers by the observers driving on the two-lanes due to the negligence of changing the course. As such, the Defendant received the part of the main set of a motor vehicle of the Aburged Aburg, which is driven by the burg ○○ in the atmosphere

Ultimately, the Defendant caused the death of the victim’s ○○○ by occupational negligence as above, by cutting off the cage cages at fages and fages on both sides.

The reasons for sentencing are the sentencing factors favorable to the defendant, such as the fact that the defendant is a primary offender, the fact that the victim's bereaved family members were paid insurance money of 271,980,690 won (269,481,30 won, large 2,49,360 won, large 269,481,30 won, large 2,49,360 won) and the fact that the victim's vehicle was located in the blind spot of the defendant's vehicle at the time of changing the lane of the vehicle, and the fact that it is difficult to avoid the possibility that the victim's negligence, such as the victim's prompt operation and lodging, etc., has occurred due to the loss of the victim's ability to enjoy early childhood, while the fact that the result of the victim's death was caused by the defendant's occupational negligence, and the fact that the victim and his bereaved family members did not reach an agreement, are the sentencing factors unfavorable to the defendant. In addition, comprehensively taking into account all the conditions of sentencing in this case after the crime.

Presiding Judge and senior containers

Judges Gincheon-soo

Judges Kim Jae-soo

A person shall be appointed.