Defendant

Defendant

Kim Woo

Suwon District Court Decision 2006 High Court Decision 189 Decided March 27, 2006

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 4,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Grounds for mistake of facts

Although LT-160 of the case driving by the defendant is merely an automobile, not an automobile, but an agricultural machine, and the defendant did not violate signal at the time of the accident, the court below judged the above LT-160 as an automobile, and found the defendant guilty of all the charges of this case by recognizing that the accident of this case occurred due to the defendant's signal violation. The judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion

B. Unjustifiable argument

Considering the fact that the defendant suffered 6 weeks of injury in the instant accident, the driver's death and drinking alcohol, and the misunderstandings, etc., the punishment of the fine of KRW 5 million sentenced by the court below is too unreasonable.

2. Determination

A. Ex officio determination

Before examining the grounds for appeal by the Defendant, the health department, and the prosecutor, ex officio prior to the trial, filed an application for changes in the indictment with respect to the applicable provisions of Article 108 of the former Road Traffic Act as “Article 108 of the former Road Traffic Act,” and the party members permitted changes in the indictment and changed in the scope of the adjudication. As such, the judgment of the court below, which is premised on the applicable provisions

However, even if there is a reason to reverse ex officio in the judgment of the court below, the defendant's assertion of mistake is still subject to the judgment of the court of this court.

B. Judgment of mistake of mistake

(1) Whether LT-160 is a motor vehicle under the Road Traffic Act

(A) Relevant statutes

○ Article 2 subparagraph 14 of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005 and enforced June 1, 2006; hereinafter the same shall apply): The term “motor vehicle” means a motor vehicle (any towed motor vehicle shall also be deemed part of a motor vehicle), which is operated by motor without a railroad or a temporarily installed line, and refers to passenger cars, trucks, special motor vehicles, and two-wheeled motor vehicles under Article 3 of the Automobile Management Act, and construction machinery under the proviso of Article 26 (1) of the Construction Machinery Management Act.

○ Article 2 subparagraph 1 of the Automobile Management Act: The term “automobile” means an instrument manufactured for the purpose of movement on land by an engine, or an instrument manufactured for the purpose of movement on land by being towed: Provided, That those as prescribed by the Presidential Decree shall not apply.

○ Article 3(1) of the Automobile Management Act: Automobiles shall be classified into passenger automobiles, passenger cars, passenger cars, trucks, special automobiles, and two-wheeled automobiles in accordance with the classification standards as prescribed by the Ordinance of the Ministry of Construction and Transportation, such as size and structure of automobiles, kinds of motors, total

Article 3 (2) of the same Act: The kinds of automobiles as referred to in paragraph (1) may be subdivided under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation.

○ Article 2 of the Enforcement Decree of the Automobile Management Act: “The term “those as prescribed by the Presidential Decree” in the proviso of Article 2 subparag. 1 of the Act means:

1. Construction machinery under the Construction Machinery Management Act;

2. Agricultural machinery as prescribed by the Agricultural Mechanization Promotion Act;

3. Vehicles under the Act on the Management of Military Supplies;

4. Vehicles operated by rail or by aerial railway.

Article 2 (1) of the former Enforcement Rule of the Automobile Management Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 470 of September 16, 2005; hereinafter the same shall apply): The types of automobiles under Article 3 (1) of the Automobile Management Act shall be classified as follows:

A two-wheeled motor vehicle: A motor vehicle with two wheels which is properly manufactured for transporting one person or two persons (including the motor vehicle with two wheelss attached to a side motor vehicle and the motor vehicle with three or more wheels derived from a two-wheeled motor vehicle): Provided, That those the engine displacement of which is less than 50cc (in case of the structure generating power by electricity, it means the one the rated output of which is less than 0.59 kilowatt) shall be excluded.

Article 2 (2) of the Enforcement Rule of the former Automobile Management Act: The types of automobiles under paragraph (1) shall be subdivided as shown in the attached Table 1, pursuant to Article 3 (2) of the Act by scale and type.

Types of Motor Vehicles (Article 2 Related to Attached Table 1)

1. Detailed standards by scales;

이륜자동차 중 중형 : 배기량이 100㏄ 초과 260㏄ 이하인 것으로서 최대적재량이 60㎏ 초과 100㎏ 이하인 것

2. Detailed standards by type;

Other types of two-wheeled automobiles: Not less than three wheels, the maximum loading capacity of which is not more than 10 kilograms;

00 For the purpose of subparagraph 1 of Article 2 of the Agricultural Mechanization Promotion Act, the term “agricultural machinery” means machinery, equipment, and parts and accessories used in producing and processing agricultural, forestry, and livestock products, in environmental control and automation of production facilities.

(B) Determination

원심에서 적법하게 채택하여 조사한 증거들에 의하면, 피고인이 운전한 LT-160은 배기량 158㏄, 최대적재중량 90㎏으로서 4륜이고, 농기계가격기준표상 농기계로 분류되어 있지 않은 사실을 인정할 수 있고, 위 LT-160의 구조 및 사양, 용도 등을 기초로 하여 위 관계법령을 살펴보면 위 LT-160은 구 도로교통법 제2조 제14호 , 자동차관리법 제3조 , 구 자동차관리법시행규칙 제2조 제5호 및〔별표 1〕자동차의 종류의 ‘이륜자동차’ 중 중형 및 특수형에 해당한다고 할 것이고, 비록 농업용에 주로 사용된다고 하더라도 위 LT-160이 농림축산물의 생산 및 생산 후 처리작업과 생산시설의 환경제어 등에 사용되는 기계 등에 해당한다고 볼 수는 없으므로, 자동차관리법 제2조 제1호 단서, 자동차관리법시행령 제2조 제2호 , 농업기계화촉진법 제2조 제1호 에서 정한 농업기계에는 해당하지 않는다.

(2) Whether the Defendant violated the signal

In full view of the evidence duly adopted and examined by the court below, in particular, the victim's statement of the victim caused a truth response as a result of the detection test of the victim's false statement, etc., the defendant driving LT-160 (hereinafter "the vehicle in this case") without the driver's license under the influence of alcohol of 0.275% on May 21, 2005, while driving the vehicle under the influence of alcohol content of 0.275% on May 21, 2005, and making the left turn at the right angle of the vehicle in front of the 47th Doro-ri, Doro-Eup, Namyang-si, Namyang-si, Seoul at the time of red signal signal, the defendant turned the right left turn of the (vehicle number 1 omitted) vehicle in front of the (vehicle number 1 omitted) in Seoul, the upper qui of the vehicle in this case, which conflict with the front right right edge of the vehicle in this case, and caused the back qui to the left side of the vehicle.

(3) Therefore, we cannot accept the Defendant’s assertion that the instant facts charged are sufficiently convicted and that there was no error of misunderstanding of facts, etc. in the lower judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed without examining the remaining grounds for appeal on the ground of ex officio reversal, and the judgment of the court below is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act and it is again decided after pleading.

The summary of the facts charged and the evidence admitted by this court is the same as that of the judgment of the court below, and this is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 108 of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005 and enforced June 1, 2006; hereinafter the same shall apply), Article 108 of the former Road Traffic Act (amended by Act No. 7545 of June 1, 2006); Article 107-2 Subparagraph 1 and Article 41(1) of the former Road Traffic Act (the point of driving without a license)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Selection of each fine

1. Aggravation for concurrent crimes;

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

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

In full view of all other circumstances, including the Defendant’s age, occupation, character, and environment, the sentence is determined as ordered, taking into account the following circumstances: (a) the Defendant’s violation of the Road Traffic Act has one suspended sentence, three times of fines, and the blood alcohol concentration of 0.275% high; (b) causing a traffic accident while driving without a driver’s license; and (c) physical damage caused by the instant accident reaches approximately KRW 2.44,00.0.

Judges Lee Jong-tae (Presiding Judge)