Defendant

Prosecutor

Kim Jong-do (Public prosecution) and Park Jong-gu (public trial)

Seoul Eastern District Court Decision 2019Gohap688 Decided October 1, 2019

The judgment of the court below is reversed.

The case shall be remanded to a single judge of the Seoul Eastern District Court.

1. Summary of grounds for appeal;

If it is difficult to secure the view of the vehicle parked on the left side of the road driving direction, it should have been operated with due care, such as temporary suspension in front of the pedestrian crossing, and it is reasonable to deem that the Defendant recognized the duty to protect pedestrians in the pedestrian crossing, and that the Defendant neglected such duty, violates the duty to protect pedestrians in the pedestrian crosswalk. Nevertheless, the judgment of the court below dismissing the prosecution of this case on the ground that the Defendant did not recognize the violation of the duty to protect pedestrians in the pedestrian crosswalk, which affected the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

The Defendant is a person who is engaged in the duty of driving (vehicle number omitted) rocketing taxi.

On April 4, 2019, the Defendant driven the above taxi on April 20:45, and moved the front road of Songpa-gu Seoul Metropolitan Government ( Address omitted) to the direction of the Opong-dong.

Since a crosswalk without signal lights is installed at the front of that place, in such a case, there was a duty of care to prevent accidents in advance by driving safely by checking closely whether or not there is a person engaged in the vehicle driving duty.

Nevertheless, if the defendant neglected to do so and proceeded along as it is, the defendant received the right-hand bridge of the victim Nonindicted Party (seven years of age) who opened the crosswalk to the right-hand side of the right-hand side of the marina course.

Ultimately, the Defendant suffered damage to the victim’s right-hand plane that requires treatment for about two weeks due to the above occupational negligence.

B. The judgment of the court below

The lower court dismissed the instant prosecution for the following reasons.

1) Relevant legal principles, etc.

Article 27 (1) of the Road Traffic Act provides that "the driver of any motor vehicle shall temporarily stop in front of the crosswalk (at a place where a stoppage line is marked, referring to the stoppage line) so as not to obstruct or endanger the crossing of pedestrians when pedestrians are passing along the crosswalk."

Meanwhile, considering the purport of the main text and proviso of Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accidents, the main text and proviso of Article 4(1), Article 4(1)1, Article 27(1) of the Road Traffic Act, and Article 27(1) of the Road Traffic Act, which enhances the driver’s duty of care to pedestrians passing the crosswalk to protect the safety of pedestrians’ lives and bodies, the driver of any motor vehicle shall take measures such as temporary suspension, regardless of the passage of the pedestrian crossing, when there is a pedestrian crossing the crosswalk according to the direction of signal apparatus, so as not to obstruct the passage of pedestrians: Provided, That even if a motor vehicle enters the crosswalk first and runs along the crosswalk, if it is difficult to obstruct the passage of pedestrians or cause any danger to the passage of pedestrians (see, e.g., Supreme Court Decision 2016Do1742, Mar. 15, 2017).

2) Determination

① According to the record, it is recognized that the instant vehicle is not the victim at the time of entering the crosswalk, and the instant vehicle is facing the right-hand part of the Defendant’s right-hand part of the bridge by the instant vehicle entering the crosswalk, and the instant vehicle faces a bridge on the right-hand part of the Defendant’s right-hand part of the crosswalk. The instant vehicle has not been parked on the left part of the driving direction of the instant vehicle, and there is no vehicle signal, pedestrian light, and vehicle aid, etc. on the said crosswalk.

② The instant traffic accident, in which there is no signal apparatus, conflicts with the pedestrians who entered the crosswalk in advance before the pedestrians attempt to enter the crosswalk, and Article 27(1) of the Road Traffic Act imposes a temporary suspension obligation on the drivers of the “in front of the crosswalk” inasmuch as the instant traffic accident imposes a temporary suspension obligation on the drivers of the “in case the pedestrians are passing along the crosswalk.” Thus, it is difficult to deem that the Defendant, who entered the crosswalk before entering the crosswalk, has the obligation to temporarily suspend the said provision.

③ Meanwhile, in light of the legislative purport of Article 27(1) of the Road Traffic Act, when a signal apparatus is installed at a crosswalk and pedestrians cross the crosswalk in accordance with the direction of signal apparatus, measures such as temporary suspension shall be taken against the driver, regardless of whether it is possible to enter the crosswalk. However, in the case of a crosswalk without signal apparatus as in this case, it can be seen that the situation is not the same, and the driver of the crosswalk as in Article 27(1) of the Road Traffic Act clearly stated the time and point when the driver should temporarily stop at the crosswalk. Article 27(1) of the Road Traffic Act is part of the penal provision in relation to subparagraph 1 of Article 156 of the Road Traffic Act, and it constitutes a kind of prosecution requirement in relation to the traffic accident treatment special law. If the scope of prosecution requirement is extended and the scope of punishment is unfavorable to the actr, it is difficult to recognize it against the principle of prohibition of analogical interpretation, which is derived from the principle of no punishment without the law of no punishment without the law (see, e.g., Supreme Court en banc Decision 2006Do160.

④ Therefore, the issue of whether the Defendant, as a driver, violated the duty of care to prevent accidents is not recognized as a violation of the duty of care to pedestrians at crosswalks under Article 27(1) of the Road Traffic Act.

3) Conclusion

Therefore, the instant accident constitutes a crime falling under Article 3(1) of the Act on Special Cases Concerning the Settlement of Traffic Accidents and Article 268 of the Criminal Act due to an accident that occurred without any ground under Article 3(2)6 of the same Act. According to the records of the instant case, the instant vehicle is recognized as being admitted to the taxi mutual aid association, and thus cannot be prosecuted pursuant to Articles 4(1) and 3(2) main text of the Act on Special Cases Concerning the Settlement of Traffic Accidents. Thus, the instant public prosecution is dismissed pursuant to Article 327 subparag. 2 of the Criminal Procedure Act because the procedure for instituting a public prosecution is invalid due

C. Judgment of the court below

Article 2 subparagraph 11 of the Road Traffic Act defines the road as the part of the road indicated by safety signs to allow the crossing, and Article 5 of the Road Traffic Act provides that pedestrians who walk the road shall follow signals and instructions expressed by traffic safety facilities, and signals and instructions given by police officers, etc., and Article 10 (2) of the Road Traffic Act provides that pedestrians shall cross the crosswalk on the road where the crosswalk is installed. In addition, there is no special prohibition or restriction to be observed by pedestrians when crossing the crosswalk where there is no pedestrian signal apparatus, and there is no special prohibition or restriction to be observed by pedestrians when crossing the crosswalk where the crosswalk is installed, the main sentence and proviso of Article 3 (2) and the proviso of Article 3 (6), Article 4 (1) and the proviso of the Act on Special Cases concerning the Settlement of Traffic Accidents, Article 27 (1) of the Road Traffic Act, Article 27 (1) of the Road Traffic Act, and Article 10 (2) of the Road Traffic Act provides that drivers of pedestrians who walk the crosswalk shall improve the traffic safety of pedestrians, regardless of the pedestrian.

Comprehensively taking account of the evidence duly adopted and examined by the court below, the defendant entered the crosswalk in order to pass the crosswalk adjacent to the intersection bypassing it from the direction of the motor vehicle in front of the road in front of the road in front of the road in front of the left by 20km. The above crosswalk does not have signal apparatus for the motor vehicle, pedestrian signal apparatus, and auxiliary signal apparatus for the motor vehicle in front of the road in front of the road in front of the road in front, and the traffic accident in this case is a two-lane road. At the time, the vehicle in front of the motor vehicle in front of the road in front of the road in front of the opposite direction of the motor vehicle in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the road in front of the left.

In light of the above legal principles, the above facts and the above evidence are as follows, i.e., the crosswalk at the traffic accident site of this case is a place where pedestrians can walk at any time because the pedestrian is not installed, so it is necessary for the defendant to have operated the vehicle so as not to obstruct the passage of pedestrians after checking whether there is a pedestrian crossing, and it cannot be confirmed whether there is a pedestrian due to the vehicle parked both by both sides at the time. Thus, the defendant should have temporarily stopped the vehicle to check whether there is a pedestrian driving on the crosswalk at the time, or if he finds a pedestrian, he should have continued to reduce the speed of the vehicle so that he can stop immediately, and the defendant does not stop temporarily or reduce the speed of the vehicle until the shock of the victim. In light of the above, it is reasonable to deem that the defendant violated the duty to protect pedestrians at the crosswalk as provided in Article 27 (1) of the Road Traffic Act.

Nevertheless, the court below ruled that the defendant cannot be deemed to have violated the duty of pedestrian protection in the crosswalk as provided by Article 27 (1) of the Road Traffic Act. Thus, the court below erred by misapprehending the legal principles on the duty of pedestrian protection in the crosswalk, which affected the conclusion of the judgment. The prosecutor's allegation pointing this out is with merit.

3. Conclusion

Therefore, the prosecutor's appeal is justified, and the judgment of the court below is reversed in accordance with Article 366 of the Criminal Procedure Act, and the case is remanded to the Seoul Eastern District Court single judge who is the court below. It is so decided as per Disposition.

Judges Lee Tae-woo (Presiding Judge)

Note 1) Although accurate speed is not examined, the Defendant stated that he was under investigation by the police that he was driving around about 15 to 20 km each hour, and that the actual yellow report is about 0 to 20 km each hour on the immediately preceding accident. As such, it is recognized as above.