2013Gohap 5 homicide (Violation of the Act on Special Cases concerning the Settlement of Recognized Crimes of Traffic Accidents)

A.

Transmission machines (prosecutions, trials)

Attorney AA

May 21, 2013

Defendant shall be punished by imprisonment without prison labor for a period of one and half years.

Criminal facts

The defendant is a person who is engaged in driving a car in K5 K5 vehicles.

At around 18:20 on October 17, 2012, the Defendant driven the said car and, at the time, proceeded to the two-lane near the Dobongsan Subdivision located in Chuncheon to a speed of about 40 km per hour from the area of the Dobongsan Subdivision to the area of the stop of the Dobongsan Subdivision. At night at the time, the place is lap, and the two-way road was the thickness of the said car, and the victim C was coming from the vehicle after laping the Defendant. In such a case, the person engaged in driving the car was obliged to pay a duty of care to prevent the accident in advance by safely driving the vehicle by looking well at the front left.

Nevertheless, the Defendant neglected this and continued to move the body of the victim who was in the front of the said vehicle at the front of the vehicle, and caused the victim who was in the front of the said vehicle to go beyond the road surface due to its shock, and led about about 23 meters after being charged to the said vehicle.

The Defendant caused the death of the victim by occupational negligence due to multiple long-term damage, etc. on the job.

Summary of Evidence

1. Partial statement of the defendant;

1. A witness D legal statement;

1. Statement to E by the police;

1. A death certificate or a photograph of a dead person;

1. A report on the occurrence of a traffic accident, a report on actual condition, a survey report on the scene of the accident, a photo on the scene of the accident (on the day of the accident, night hours), a criminal investigation report (on the day of the accident), a bureau and a water inspection entrustment report, a bureau and a water inspection entrustment report on the appraisal request, and a criminal investigation report (refluence of the accident situation and the analysis of the accident);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents, Article 268 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The Defendant, while driving on the right side of a road anticipated for the victim to walk at the time of the instant case, was shocking without discovering the victim who was seated on the road on the front side of the vehicle, which is anticipated to drive. In general public, it is difficult to predict that the victim was seated on the road in the above circumstances. In particular, the Defendant did not have a possibility of avoiding the accident because the left side of the road is very real name and the right snow remains only at the center of about five degrees, and there was no possibility that the Defendant might avoid the accident. Therefore, the Defendant cannot be said to have a occupational negligence on the victim’s death.

2. Facts of recognition and judgment

The following facts can be acknowledged in full view of the police statement concerning F of each of the above evidence evidence F, copy of the traffic accident report, copy of the police investigation report, the defendant's investigation report (G Hospital's opinion), investigation report, investigation report, investigation report, and investigation opinion of the field prosecutor.

1. ① While the Defendant was driving a victim who demanded hedging to take aboard the vehicle, and driving a vehicle toward the old Dobongsan Prospective Zone, the victim was able to stop. While getting off the vehicle from the vehicle to the direction of the vehicle, the victim continued to drive the vehicle by driving the vehicle back to the ppurir again and driving the vehicle.

② The Defendant was diagnosed by the doctor in charge that, in the present state of loss of the vision in the left, the correction vision of 0.7 to 10 degrees (40 to 60 degrees in normal cases) and that, as much as possible, the Defendant was diagnosed by the doctor in charge as possible. However, the Defendant continued to drive a flat, had the driver, and left the left the front of the home plug located in Chuncheon City before the mold, and was hospitalized in the opposite direction with the vehicle going directly from the opposite direction.

③ At night, the victim was at night, and the victim was in the state of 0.106% alcohol concentration in the blood of Mauritius and suffered from the luxan in the South color lux.

The issue of violation of the duty of care shall be based on the judgment of a person who has a pain in the location of the actor, and according to the above facts of recognition, since the driver of a vehicle, in principle, has a duty to drive in the front section, the defendant was unable to fulfill the above duty of care, the defendant was under the influence of the victim, and the defendant was able to anticipate the victim's violation of the duty of obligation of obligation of obligation of traffic regulations because he was at night, and the defendant was in an interest to the extent that he did not have enough enough time, and at night, the defendant was able to avoid the accident by driving more carefully in order to secure the front section and prevent the accident.

Therefore, we cannot accept the above argument of the defendant and his defense counsel.

Reasons for sentencing

1. Scope of punishment by law: Not less than one month but not more than five years;

2. Scope of recommendations according to the sentencing criteria: Not less than eight months but not more than one year and six months (basic area).

[Determination of Type] Traffic Accidents and Death of General Traffic Accidents

[General Convicted Persons] Relief Measures (Mitigations) after Accidents, Subscription to Motor Vehicle General Insurance (Mitigations)

3. Determination of sentence: One and half years of imprisonment without prison labor;

The instant case is one of the cases where the Defendant, while driving a vehicle by driving the victim away from his/her own vehicle, did not discover the victim while driving the vehicle and shocked the vehicle, resulting in death, and the Defendant forced the victim who demanded the vehicle to go on to the above road, and the Defendant was aware that the damaged person was in front of the road, and is not good enough enough time. Therefore, the Defendant’s negligence by causing the instant accident and gross negligence, up to this court, the Defendant denies the victim’s responsibility for the death, and the Defendant did not reach an agreement with his/her bereaved family. In light of the above, it is inevitable to punish the Defendant with severe punishment.

However, the circumstances favorable to the defendant should be considered in light of the circumstances, such as the defendant's age, sex, environment, and the fact that the defendant was sentenced three times to a fine due to unauthorized driving, etc., and the victim was seated to and out of the road, not the edge of the road, and the punishment as ordered within the above range of the sentencing guidelines shall be determined in consideration of various circumstances, which form the conditions for sentencing specified in the defendant's age, sex, environment,

The acquittal portion

1. Summary of the facts charged in this case

On October 17, 2012, the Defendant: (a) 18:20, around 18:20, the H Hospital Hospital C, which was located in Chuncheon for about one year and eight months, was able to listen to the horses and see the victim in the B-K5 car operated by the Defendant for the purpose of gathering the victim’s mind; (b) however, the victim continued to leave the vehicle without mind, and went through the said car until the way near the Dobong-gu Office located in Chuncheon by disregarding the horses of the defective victim.

At around 19:15 on the same day, the Defendant: (a) set off the said car on the right side of the right side of the route near the Dobongsan Rest, and read the victim again; (b) left the said car without looking at the victim’s mind, thereby driving away from the said car; (c) the victim was her hand, but the victim was her hand, but the victim was her hand, she was frighted to her hand, and she was able to kill the victim by driving the said car at about 40 km a speed of about 10 meters per hour, leading the victim to the right side of the said car in the direction of the right way to stop; and (d) caused the victim to die from the victim’s body and the body of the victim to her hand, leading the victim to the death of the victim and the victim’s body to 2 meters after driving the vehicle.

As such, the Defendant killed the victim.

2. Defendant and his defense counsel’s assertion

피고인은 차로 피해자를 충격할 당시 피해자가 앞에 있는 것을 보지 못하였고 차량 바닥에서 드르륵 드르륵' 소리가 나기에 도로 오른쪽에 차를 세운 후 내려서야 피해자 가 차량 뒤쪽에 누워있는 것을 발견하였을 뿐 피고인에게는 살인의 고의가 없었다.

3. Facts of recognition and judgment

A. According to each evidence submitted by the prosecutor, the following facts can be acknowledged.

(1) On January 201, the Defendant began to return to the victim and lived with the victim at the home of the Defendant from early October 2012, 2012. The victim, who became aware of the fact that the Defendant was divorced and her two persons, was the parent, who was aware of the fact that the Defendant was divorced and her children, was the head of the Defendant’s home and the head of the her home. At this point, the Defendant was able to arrange the relationship with the Defendant, with D, who had been aware of the fact that the Defendant had been divorced and her children, and had the head of the her home and the head of her home.

(2) On October 17, 2012, around 13:00, the victim was getting off and getting off D in the original state, and around 15:00 on the same day, the victim met with F, who is a subsequent leader, at the master city of Chuncheon City, at 15:00 on the same day, and met with C, who was at the H Hospital located in Chuncheon where the defendant is hospitalized, and said at around 18:20 on the one hand, he met with D and C. In order to make detailed remarks with the victim. The defendant started at H hospital to make a detailed talk with the victim, and started at the H hospital, and got out of the Busan City, Chuncheon, without disregarding the victim’s speech that he would get out of the place where D was located at the time.

(3) On the same day, the Defendant and the victim continued to dispute in the car, and the victim called D with the lapse of the J of 19:06 on the same day, and around 19:10 on the same day, respectively, sent a text message stating “I will not see that I will do so?” and “I will see that I will do not know about I will do so?” at around 19:13, 19:13.

(4) At around 19:13 on the same day, the Defendant was unable to drive a car at the right side of the road while getting off two-lanes of the Gu salary-frame rest area in the front of the road. At that time, the Defendant was at the time, the vehicle’s passage or human resources are rare, and no street has been cut off. The victim went off from the vehicle without any need to stop the vehicle. While the Defendant left the vehicle immediately, the victim got out of the vehicle, but the victim continued to turn back to the direction of the vehicle, the Defendant continued to turn back to the ppuri by turning back the vehicle and her headlight again, and was driven by driving the vehicle.

(5) On the other hand, at around 19:16 of the same day, the victim took a phone to D and called "I am sphere, so I am sphere, I am sphere at now, but I am sphere, I am sphere at now." After the locking, I am at the left-hand part of the defendant's vehicle with non-sphere sphere, and the above vehicle was faced with the victim.

(6) On January 14, 2013, K, L, the psychological director of the Supreme Prosecutors' Office, and L, the Defendant, as a result of the psychological physiological test conducted on the Defendant on the white water method, showed a significant physiologically abnormal response to the Defendant’s phrase “I am to C at the time of this case?” and “I am to the point of time? I am to the point of time? I am to the point of time? I am to the point of time? I am to the point of time? I am to the point of time? I am to the point of time? I am to the point of time? I am to the point of time

(7) On January 14, 2013, M, the Chief Prosecutor of the Supreme Prosecutors’ Office, analyzed the Defendant’s non-language behavior, verbal and voice response, and the appropriateness of emotional expression that the Defendant had expressed in the course of the interview. As a result of the analysis, the Defendant returned to the Defendant’s meeting with the talk that he would want to make a direct reply to the questions pertaining to the case, such as continuing to make a statement on the day before the accident occurred while making a direct reply to the case. The Defendant got back to the vehicle, and was easy to conceal it, and the Defendant was not aware that the Defendant could not have been aware of the victim, considering that he could have been able to make a prompt response due to the difference between the end of the loss while explaining the scene where the victim would drive away from the vehicle.

In addition to the above facts, the defendant had been driving in ordinary areas, and the victim who had been disputed at the time was driving a motor vehicle and driving the motor vehicle, so it is difficult for the defendant to find out the victim. Thus, it is also doubtful that the defendant was unable to find the victim. As such, there is a doubt that the defendant is not killed by receiving the victim after hearing the victim's horses.

B. However, in a criminal trial, the recognition of facts constituting a crime must be based on strict evidence of probative value, which makes a judge not to have any reasonable doubt, and in a case where the prosecutor’s proof fails to fully reach the extent that it would lead to such conviction, the determination should be based on the defendant’s interest even if there is a doubt of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal (see Supreme Court Decision 2010Do1487, Apr. 28, 201).

In full view of the following facts and circumstances acknowledged by the record, it cannot be ruled out the possibility that the defendant was killed by a vehicle with the mind of murdering the victim on the front side of the road by failing to discover the victim who was seated on the side of the road while driving the vehicle while considering only the right side of the road, and thus, it cannot be ruled out that the defendant was killed by a vehicle with the mind of murdering the victim. There is no other evidence to acknowledge it differently.

○ 피고인은 최초 경찰 수사부터 이 법정에 이르기까지 피해자가 우측 갓길로 올라 가고 있을 것이라고 생각하여 우측만 주시하면서 운전하고 있었는데 차량 하부에서 '드르륵 드르륵' 소리가 나길래 차를 세웠고 차에서 내린 후 피해자가 차량 뒤쪽에 누 워있는 것을 발견하였다고 일관되게 진술하고 있다.

○ At the time of the instant case, the Defendant: (a) driven a vehicle at a speed of at least 40 km per hour (or at a speed of at least 40 km in time; and (b) driven a vehicle at a speed of at least 40 km per hour; and (c) driven a vehicle at a speed of 23 km (or approximately 2 km in the case of driving a vehicle at about 40 km in time) with shocking the victim; (d) stopped a vehicle at a speed of 40 km on the road; and (e) stopped a vehicle. If the Defendant driven a vehicle with the intent to kill the victim as a vehicle, it appears that the Defendant would have driven the vehicle at a rapid speed and stopped the vehicle on the right side immediately after shocking.

1) At the time of the last telephone call with the victim, D stated in this court that “the victim was unable to hear the respiratory part of the victim’s oral benda (sauta)” and “the victim was unable to hear the sautic part of the victim’s oral benda with respect to the situation at the time of the last telephone call with the victim, but the victim was unable to hear the sauta, and the victim was aware of the sauta in the wall.”

② At the time of the instant case, the victim was suffering from the Cheongban located in South-North lux, and immediately following the instant case, the body photographs found the main head of the right and the right side part of the bridge, and there was little injury on the bridge part. According to the autopsy report by the National Research and Investigation Agency on the victim, the victim was under drinking 0.106% of the blood alcohol content, and the private person was under multiple long-term damage, and the legal official N in the above Gu’s legal official N in the above Gu’s legal official N in consideration of the possibility that the victim was under way by the vehicle or was divided by the lower structure.

③ In addition to the white materials attached to the left side of the front pande and the foreign materials attached to the front number plate (in response to each of the above foreign materials, the marks used on the victim’s right side of the front pande and on the bottom of the floor pande structure can be distinguished), the National Institute of Scientific Investigation determined that the Defendant was seated or seated with shocking, front glass damage, etc. on the front and right side of the vehicle. The Defendant’s vehicle’s vehicle is not distinguishable from the back left side of the vehicle’s mode, electric rode, front rode, and front rode equipment, etc., which may be used in arrears, and the pans and panse color and blood transfusions attached to the front rode part of the lower rode’s driver’s seat, and the victim is considered to have been seated or carried on on the right side of the vehicle immediately before the front rode.

④ Around March 2008, the Defendant was diagnosed as “cathologic urology with urology” and around April 2008; around July 2009, the Defendant was under the diagnosis of “cathologic urology with urine (urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine; around July 2009, the urine urine urine urine urine urine urine and urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine. The Defendant was under the conditions of 0.7 degrees - 5 to 10 degrees urine.

(1) In light of the above (1) facts, the victim appears to have been seated in the part of the two-lane road by phone call to D at the time, and since the victim suffered from the south luculation and serious luculations at the time, the defendant, who is only the central 5-10 degrees in a state where only the right vision remains, is driving on the right side of the road, it is difficult to eliminate the possibility of not discovering the victim who was seated in the part of the road traveling along the road by driving on the right side of the road at night.

On ○ immediately after the accident, at around 19:18, 119, the phone calls were reported to the effect that “the Defendant’s phone voice at the time of the accident would rapidly cause the death of people,” and the Defendant’s voice at the time could not find any other peculiar points, i.e., the voice demanding the dispatch of 119.

○ Following an accident, the Defendant did not organize the site or move a vehicle other than those reported to 119, and did not see his hand on the victim’s oil products at all.

○ 피고인과 피해자는 사건 발생 3일 전인 2012. 10. 14. 10:54경 “카톡해 집 앞에서 맥주 간단하게 한잔하고 들가려고(피고인)”, “헐랭ㅋㅋ 글쿤 난 아퍼ㅜㅜ (피해자)”, “ 티 비랑 장판은 오빠가 갔다줄게 어디가(피고인)”, “오빠티비는 좀 비싸니까 몇일 더 생각 해보구 책상이라도 좀 보내줘(피해자)”, “체산겨(체한겨의 오타로 보임, 피고인)” “웅ㅜ ㅜ (피해자) "라는 내용으로, 11:35 경 "나 아픈데 술이 넘어가심?(피해자)" "빨리자 ( 중간 생략) 장판 갖다줄게( 피고인)” ”웅 ㅋㅋㅋ( 피해자)" " 이번 주에 가지 뭐 (피고인)" "그러 셩 ㅋㅋ(피해자)“라는 내용으로 각 카카오톡 메시지를 주고받았고, 20분 후인 2012. 10. 15. 00:00경 피해자가 카카오톡으로 전화를 받지 않는 피고인에게 화를 내며 00:11 경헤어지자는 메시지를 보낸 것을 시작으로 04:00경까지 다투기도 하였으나( 피해자는 피고인이 평소 친하게 지내는 특정 여자가 이 일의 시발점이 되었다고 언급하기도 함 ) 사건 당일까지 꾸준히 전화, 메시지 등을 주고받았다. 위와 같은 상황에 비추어 보면 피해자가 피고인과 헤어지려고 하였다는 이유로 피고인이 일방적으로 비정상적인 스토 킹이나 집착을 보였다고 보기 어렵다. 또한 피고인은 사건 당시 술을 마시지 않았고, 폭력범죄로 처벌받은 전력이 없으며 평소 피해자에게 폭력을 행사하거나 그밖에 피해 를 주었다고 볼 만한 증거도 없다 .

○ The result of the psychological physiological test of the Defendant (one-time verbal detection devices) and the result of the action analysis conducted by the Defendant is merely circumstantial evidence to measure the credibility of the respondent’s statement (see Supreme Court Decision 87Do968, Jul. 21, 1987). It cannot be concluded that the Defendant killed the victim on the basis of each of the above inspection results.

C. Therefore, although the primary facts charged of this case constitute a case where there is no proof of crime, inasmuch as the court found the Defendant guilty of violating the Act on Special Cases Concerning the Settlement of Traffic Accidents, which is the ancillary facts charged, it does not make a separate order of

Judge in charge of Second Instance

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