(영문) 부산지방법원 2016.1.28.선고 2015노2756 판결

Defendant shall be punished by a fine of one million won. If the Defendant does not pay a fine, the Defendant shall be confined in a workhouse for a period of one hundred thousand won converted into one day.

Reasons

1. Summary of grounds for appeal;

A. The “camper” in this case was manufactured as a separate-type campaigner in the form of escape and attachment, which is merely a cargo loaded in a truck, and was loaded in a vehicle with a campingus, thereby changing the structure and devices of the motor vehicle. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged on the premise that the Defendant had installed a motor vehicle. In so determining, the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine

B. Even if the court below found the defendant guilty, the punishment of the court below (one million won of fine) is too unreasonable. 2. The judgment of the court below is unjust.

A. Ex officio determination

Before determining the grounds for appeal by the defendant, the prosecutor examined the case ex officio, and the prosecutor applied for changes to the bill of amendment of an indictment with respect to "Article 79 subparagraph 13 and Article 53 (1) of the Automobile Management Act" in "Article 80 subparagraph 5 and Article 57 (2) of the Automobile Management Act" as "the defendant did not obtain the approval of the competent authority" and "the structure and devices of cargo vehicles" in Article 2 of the indictment of this case against the defendant, and the "the alteration of the structure and devices of cargo vehicles" in Article 80 subparagraph 5 and Article 57 (2) of the Automobile Management Act, and the applicable provisions of the law were changed to "Article 79 subparagraph 13 and Article 53 (1) of the Automobile Management Act" in "Article 57 (2) of the Automobile Management

However, the defendant's assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court.

B. Judgment on misconception of facts or misapprehension of legal principles

According to Articles 53(1), 2 subparag. 6, and 8 of the Motor Vehicle Management Act, it constitutes a motor vehicle maintenance business, and a person who intends to operate a motor vehicle maintenance business shall register with the Mayor, etc.

In other words, not only changes in the structure and devices of a motor vehicle but also additions to a motor vehicle falls under the tubes of a motor vehicle. Moreover, the increase in the passenger capacity or maximum discretion or the type of a motor vehicle can be changed constitutes a motor vehicle’s pipeline (see Article 34 of the same Act and Article 55 of the Enforcement Rule of the same Act). Thus, if attached articles installed on a motor vehicle were manufactured to be used in entirety as a motor vehicle, increase in its passenger capacity or use them for a different type of motor vehicle would result in increase in its passenger capacity or increase in its installation for a different type of motor vehicle, even if it is possible to remove or attach attached articles without any change in the type and structure of the motor vehicle, the installation of an attachment constitutes a motor vehicle’s tubes.

The campus created by the Defendant itself is a truck itself created without a hand, which is able to escape or attach a truck, and is unable to enter the campus when it is closed to load the campus on a truck. However, this campus was constructed at a bar level. The upper part of the camp was 15 cm above the truck’s truck, the upper part was 50cm above the truck, and the upper part was 50 cm above the truck, so that it was able to use the campus in line with the upper part of the passenger space. While the truck was loaded at close, only a certain kind of cargo vehicle can easily enter and leave the camp if it was installed on the part of the truck. It is sufficient to see that the driver of the camp can easily get out or get out of the front part of the camp, and that it is sufficient to see that the driver of the truck was able to get out of the front part of the camp. Considering the above circumstances, it is sufficient to see that the driver of the truck was able to get out of the camp.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged is just, and the defendant's misunderstanding of facts or misapprehension of legal principles is without merit.

Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence acknowledged by this court is as stated in the judgment of the court below, except for the modification to "the above cargo vehicle maintenance business was conducted by means of changing the structure and devices of the above cargo by attaching and installing the above cargo," " without obtaining the approval of the competent government office" in Section 2 of the facts constituting an offense in the judgment of the court below, and "the modification to the structure and devices of the above cargo by installing" in Section 8 of the facts constituting an offense in the judgment of the court below, as stated in each corresponding part of the judgment below.

Application of Statutes

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

Articles 79 subparag. 13 and 53(1) of the Motor Vehicle Management Act; selection of fines

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

Although the defendant does not seem to have intentionally committed an act in violation of the laws and regulations, considering the legislative intent of the Automobile Management Act intending to secure the performance and safety of the motor vehicle and promote public welfare, it is inevitable to impose certain responsibilities on the defendant. In particular, the defendant, who runs the business of installing the "camper" at issue in this case, seems to have a higher punishment when he simply installs the "camper" in his own motor vehicle, taking into account the above circumstances into account, and the court below determined the punishment in light of the above circumstances, and there are no other circumstances to change the sentence when it comes to the trial, and the punishment is determined as ordered by taking into account all the factors such as the defendant's age, character and behavior, intelligence and environment, motive, means and consequence of the crime in this case, and the circumstances after

Judges

The presiding judge and the highest judge rate;

Judges Kim Young-chul

Judges Dognaia