(영문) 의정부지방법원 2018.10.08 2018노1997

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(영문) 의정부지방법원 2018.10.08 2018노1997

특정범죄가중처벌등에관한법률위반(도주치상)등

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The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. In fact, the victim D is not the owner of the real estate as indicated in the judgment below (hereinafter “victim’s real estate”), and the taxi as indicated in the judgment of the court below (hereinafter “victim”) was damaged only to the extent that the repairing cost was KRW 5.3 million.

B. The sentence of the lower court’s unfair sentencing (one year of imprisonment) is too unreasonable.

2. Determination

A. Determination on the assertion of mistake of fact 1) The phrase "when a mistake of fact affects the judgment" as one of the reasons for appeal under Article 361-5 subparagraph 14 of the Criminal Procedure Act refers to the case where a mistake of fact affected the order of the judgment and the case where a constituent evaluation of the requisite elements for the crime was directly or indirectly affected by a mistake of fact (see Supreme Court Decision 96Do165 delivered on September 20, 196, 200) and the court below's decision and the evidence duly adopted and investigated by the court below, and the following circumstances acknowledged by the evidence, 1) the owner of the damaged real estate is stated as R (S) (the investigation record 54 pages), and 2) the agreement submitted by the defendant in the first instance court was accompanied by a public brokerage of the damaged real estate.

However, this appears to have mistakenly stated the victim D, who is the driver of the damaged vehicle, as the owner of the damaged real estate. Furthermore, in light of the above legal principles, the fact that the defendant did not take necessary measures as a driver even after receiving and destroying the damaged real estate owned by the victim, also constitutes a crime of violating the Road Traffic Act under Articles 148 and 54(1) of the Road Traffic Act, and is the same as the legal provision applied by the court below. Thus, the mistake of such fact alone is directly an assessment of the elements for the order of the court below or the crime against the defendant.

참조판례

-대법원 1996. 9. 20. 선고 96도1665 판결

유사 판례

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