Whether the act of driving without a license and the act of driving with the driver's license constitutes an ordinary competition relationship (affirmative)

The "one act" under Article 40 of the Criminal Code refers to an act that is evaluated as one of the conditions of the nature of an object, regardless of the legal evaluation, and it is clearly one driving act from the above perspective to the point of view that the driver has driven Oralone while drinking. This act constitutes both crimes under Article 111 subparagraph 2, Article 40, Article 109 subparagraph 2, Article 109 subparagraph 2, and Article 41 (1) of the Road Traffic Act, so the two crimes are in a commercial concurrent relationship under Article 40 of the Criminal Code.

Article 40 of the Criminal Act, Article 111 subparagraph 2 of the Road Traffic Act, Article 40, Article 109 subparagraph 2 of the Road Traffic Act, and Article 41 (1) of the Road Traffic Act

Defendant

Prosecutor

Seoul Criminal Court Decision 86No5295 delivered on October 22, 1986

The appeal is dismissed.

As to the Prosecutor’s Grounds of Appeal:

With respect to the facts charged in this case where the defendant driving an Oral bathy owned by him in the state of 3.1 microscopon of blood without a motor device bicycle driver's license and died of a new bathy, the court of first instance decided that the acts of driving without a license of the defendant and driving without a license of the defendant in the above facts charged are crimes falling under Article 3(1) of the Act on Special Cases Concerning the Settlement of Traffic Accidents, Article 268 of the Criminal Act, Article 109 subparagraph 2 of the Road Traffic Act, Article 41 (1), Article 111 subparagraph 2 of the Road Traffic Act, Article 111 subparagraph 2 of the Road Traffic Act, and Article 40 of the same Act, and the court of first instance agreed that the acts of driving without a license of the defendant in the above facts charged are in a commercial concurrent relationship corresponding

The theory is a single act in the ordinary concurrent crimes. The act is identical to one act in the natural observation of facts, and once again, the act is presumed to refer to the situation of the nature of the object regardless of the legal evaluation, and when it appears to be one. First, in order to be a single act, it is a single act by a single doctor in order to be a single act. In concrete cases, it is possible for the actor to divide the act into one act and not to do the act corresponding to the other act, and it is possible to divide the act by the actor. Second, in order to be a single act, it is necessary to be a single act, and second, it is necessary to be a single act, and second, it is not necessarily the starting stage of the act, but it is separate from the starting stage, and it is reasonable to regard the act as a single act as a single act and a single act as a single one.

The purpose of Article 40 of the Criminal Code is to treat a single act as a single crime in the event that a single act constitutes several crimes and constitutes several crimes, and the act is evaluated as a single act in the state of nature of an object regardless of legal evaluation as the premise of the theory of lawsuit.

In this case, it is clear from the above perspective that the defendant driving Otoba in the state of under the influence of alcohol is one driver's act, and this act constitutes both crimes under Article 111 subparagraph 2, Article 40, Article 109 subparagraph 2, and Article 41 (1) of the Road Traffic Act, and the two crimes are concurrent crimes under Article 40 of the Criminal Act.

Even if we consider the two opinions that have developed theories, it is doubtful whether it is possible to see the social concept to not divide the state of non-license and drinking into one crime in the beginning stage of the defendant's driving act.

In the same purport, the court below is just in dealing with non-licensed and drunk driving practices in an ordinary concurrence and there is no error in the misapprehension of legal principles, such as theory of lawsuit. The arguments are without merit.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices O Sung-sung (Presiding Justice)