[1] The meaning of a special relationship, which is a form of a legal holiday agreement

[2] Whether Article 71 and Article 78 of the Automobile Management Act is a special law for a crime of unlawful use of air defense under Article 238 (1) of the Criminal Act (negative)

[1] Where a special relationship, which is a form of a legal concurrence agreement, is established where the elements of a special relationship should be satisfied other elements than all other elements of a special law, the act satisfying the elements of a special law, but on the contrary, the act satisfying the requirements of a general law, does not meet the requirements of a special law.

[2] The purpose of Article 238(1) of the Criminal Code is to promote public welfare by efficiently managing motor vehicles and securing performance and stability of motor vehicles (in particular, Articles 78 and 71 of the Motor Vehicle Management Act are likely to regulate acts hindering efficient management of motor vehicles) as well as to stipulate that the purpose of the above crime of illegally using air under the Criminal Code as a subjective constituent element is "the purpose of the crime of illegally using air is to exercise" together with intentional acts, while the above Motor Vehicle Management Act does not include "the purpose of exercise" as a subjective constituent element, in light of the fact that Article 78 and Article 71 of the Motor Vehicle Management Act does not include "the purpose of exercise" as a subjective constituent element, the purpose of the crime of illegally using air under the Criminal Code is not the relation of the special act of using air under Article 238(1) of the Criminal Code.

[1] Article 37 of the Criminal Code / [2] Articles 37 and 238 (1) of the Criminal Code, Articles 71 and 78 of the Automobile Management Act

[1] Supreme Court Decision 93Do498 delivered on June 22, 1993 (Gong1993Ha, 2192)

Defendant

Defendant

Attorney Park Chang-hoon

Jeonju District Court Decision 96No830 delivered on April 10, 1997

The appeal is dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

Examining the reasoning of the judgment below in light of the records, it is reasonable to consider that the court below rejected the defendant's assertion that the defendant committed a crime in the state of mental disorder or mental disorder caused by editing and depression at the time of the crime of this case on the grounds as stated in its reasoning, and there is no error of incomplete deliberation as to mental disorder as alleged in the grounds of appeal.

2. On the second ground for appeal

Special relationship, which is a form of a mutual agreement, is a form of a special law, where the elements of a special law should be satisfied other elements than all other elements of a special law, and the act which satisfies the elements of a special law in a special law does not meet the requirements of a special law (see Supreme Court Decision 93Do498 delivered on June 22, 1993).

Article 71 of the Automobile Management Act provides that "no person shall use ..... the automobile registration number plate under this Act ....." The person who violated the provisions of Article 71 of the same Act under Article 78 of the same Act shall be punished by imprisonment for not more than 10 years or by a fine not exceeding 30 million won. Article 238 (1) of the Criminal Act provides that "any person who, for the purpose of uttering, uses the signs of public offices .... for the purpose of uttering shall be punished by imprisonment for not more than 5 years." The vehicle number plate constitutes the marks of the above public offices (see Supreme Court Decision 83Do2078 delivered on October 25, 1983).

On the other hand, the issue of whether Article 78 and Article 71 of the Automobile Management Act are related to the crime of unlawful use of air under Article 238 (1) of the Criminal Act shall be determined by the comparison of the elements of both laws and regulations in accordance with the above legal principles. The above Article of the Criminal Act is the public credit of the authenticity of seal, signature, name, mark, etc. as a form of the crime of seal, i.e., transaction credibility and stability. However, the purpose of legislation of the Automobile Management Act is to promote public welfare by efficiently managing automobiles and securing the performance and stability of automobiles (in particular, Articles 78 and 71 of the Automobile Management Act are to regulate acts that interfere with efficient management of automobiles). In addition, the above provision of the Automobile Management Act requires "the purpose of the crime of unlawful use of air under Article 238 (1) of the Criminal Act" as a subjective element, while the above provision of the Automobile Management Act does not provide a subjective opinion to the effect that Article 78 (1) 1 of the Automobile Management Act does not use of the Automobile Management Act.

3. On the third ground for appeal

In the case of this case where imprisonment for less than 10 years is sentenced, the argument that there is a ground to recognize that the amount of punishment is inappropriate due to the lack of sentence can not be a legitimate ground for appeal.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)