[1] Whether a crime of violation of Article 150 subparagraph 1 of the former Road Traffic Act and Article 45 of the former Road Traffic Act constitutes a crime of neglect (affirmative), and whether a crime of violation of Article 155 of the former Road Traffic Act is established in the actual situation of "unworking condition" due to the influence of drugs

[2] The case holding that the court below erred in the misapprehension of legal principles in finding that there is no evidence to acknowledge the crime of violation of the former Road Traffic Act, even though the defendant's statement that there was no symptoms at the time of driving a motor vehicle after the operation of a phiphone medication cannot interfere with the establishment of the crime of violation of the said Act, with respect to the charge of violation of the former Road Traffic Act that the defendant driven a motor vehicle under the condition that the vehicle

[3] The degree of supporting evidence for confession

[4] The case holding that there is sufficient evidence to reinforce the confession as to the part of the facts charged that the defendant could not drive normally due to the administration of oponon around 02:00 on February 18, 2010, when he was found to have taken a opon from the defendant who was on board a motor vehicle and the defendant got to drive the said motor vehicle, and the defendant got to drive the said motor vehicle on February 20, 2010, and the response to the training of oponon from the side of the river taken from the defendant on February 20, 2010

[1] Article 150 Subparag. 1 of the former Road Traffic Act (amended by Act No. 10382, Jul. 23, 2010) provides that "A person who drives a motor vehicle, etc. while being unable to drive the motor vehicle normally due to drugs in violation of Article 45" shall be punished. Article 45 of the same Act provides that "A driver of a motor vehicle, etc. shall not drive a motor vehicle, etc. in such a state that he/she is unlikely to drive the motor vehicle normally due to overwork, disease or medicine (referring to narcotics, marijuana, psychotropic drugs, and other drugs as prescribed by Ordinance of the Ministry of Public Administration and Security) in addition to under the influence of alcohol under Article 44, and other reasons." This provision provides that "A driver of a motor vehicle, etc. shall not drive the motor vehicle, etc. in a state where he/she is unlikely to drive the motor vehicle normally due to the influence of drugs, such as so-called dangerous crime." However, the crime of violation of the same Act is not established in reality.

[2] As to the facts charged in violation of the former Road Traffic Act (amended by Act No. 10382, Jul. 23, 2010) that the defendant driven 1 km in the condition that the defendant could not drive normally after drinking about 0.03 g of opon on a coffee, the case holding that the court below erred in the misapprehension of legal principles in holding that the defendant's statement by the defendant that the defendant did not have any symptoms at the time of driving a opon after the opon administered cannot interfere with the establishment of the crime, on the ground that if the defendant driven the opon within the normal quantity where the symptoms of the opon medication showed the symptoms of the opon medication and within the nearest time, the crime of danger is established, and since the defendant did not have to drive normally due to the influence of the opon medication, it does not have to reach the state of normal driving due to the influence of the opon medication.

[3] The corroborating evidence for confessions is sufficient if it is sufficient to acknowledge that the confession of the defendant is not processed, even though the whole or essential part of the facts constituting the crime is not recognized, and it is sufficient to prove that the confession of the defendant is true, as well as indirect evidence or circumstantial evidence can be used as supporting evidence. Further, if confessions and supporting evidence are mutually sound and it is possible to prove facts of the crime as a whole as evidence of guilt, it is sufficient to establish evidence of guilt.

[4] The case holding that the court below erred in the misapprehension of legal principles as to the degree of reinforced evidence in the judgment below, on the ground that the defendant's confession as to the part of the facts charged that the defendant was in a situation where he could not drive normally due to the administration of phiphones around 02:00 on February 18, 2010, because the defendant got a phiphone from the defendant who was on board the motor vehicle at around 01:35, who got the phiphones, and the defendant got to drive the said motor vehicle, and the response to the training of phiphones from the urphones collected from the defendant on February 20, 2010.

[1] Articles 45 and 150 subparagraph 1 (see current Article 148-2 subparagraph 3) of the former Road Traffic Act (Amended by Act No. 10382, Jul. 23, 2010) / [2] Articles 45 and 150 subparagraph 1 (see current Article 148-2 subparagraph 3) of the former Road Traffic Act (Amended by Act No. 10382, Jul. 23, 2010) / [3] Article 310 of the Criminal Procedure Act / [4] Articles 45 and 150 subparagraph 1 (see current Article 148-2 subparagraph 3) of the former Road Traffic Act (Amended by Act No. 10382, Jul. 23, 2010); Article 310 of the Criminal Procedure Act

[3] Supreme Court Decision 2005Do8704 Decided January 27, 2006 (Gong2006Sang, 380), Supreme Court Decision 2007Do5845 Decided September 20, 2007, Supreme Court Decision 2008Do2343 Decided May 29, 2008 (Gong2008Ha, 959), Supreme Court Decision 2008Do7883 Decided November 27, 2008

Defendant

Defendant and Prosecutor

Attorney Kang Jin-young

Busan District Court Decision 2010No1720 Decided August 12, 2010

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The prosecutor's grounds of appeal are first examined.

1. According to the reasoning of the judgment below, the court below determined that the Defendant did not normally drive a motor vehicle under the influence of drugs, such as narcotics, marijuana, and psychotropic drugs on February 18, 2010 and the Defendant did not 0.03 g of philopon on the front side of Laton in Busan Northern-dong, and did not normally drive a motor vehicle under the influence of 70 gropon (hereinafter omitted) under the influence of copon, while he could not normally drive a motor vehicle under the influence of drugs such as narcotics, marijuana, and psychotropic drugs. However, the court below determined that the Defendant did not have any other evidence to acknowledge that the Defendant could not normally drive a motor vehicle on the date of the confession of copon as stated in the facts charged on the charge of violation of the Road Traffic Act, based on the following facts: (a) the Defendant did not appear to have any other evidence to prove that the Defendant could not normally drive a motor vehicle after the confession of copon on the front side of Busan-dong, Busan-do.

2. We cannot accept the judgment of the court below for the following reasons.

A. Article 150 Subparag. 1 of the Road Traffic Act provides that “A person who drives a motor vehicle, etc. in a state where he/she is unlikely to drive the motor vehicle normally due to drugs in violation of the provisions of Article 45 shall be punished.” Article 45 of the Road Traffic Act provides that “A driver of a motor vehicle, etc. shall not drive a motor vehicle, etc. in a state where he/she is unlikely to drive the motor vehicle normally due to the influence of overwork, disease or drugs (referring to narcotics, marijuana, psychotropic substances, and other substances prescribed by Ordinance of the Ministry of Public Administration and Security) and other reasons other than under the influence of Article 44.” It is reasonable to view that a person who drives a motor vehicle, etc. while driving the motor vehicle, etc. in a state where he/she is unlikely to drive the motor vehicle normally due to the influence of drugs, etc., as so-called dangerous crime, the crime of the above Road Traffic Act is established immediately if he/she drives the motor vehicle in a state where he/she is unlikely to drive the motor vehicle normally.”

Therefore, if the defendant administered the normal quantity that shows symptoms of the philophone medication within the nearest time, the crime of violation of the Road Traffic Act, which is a dangerous offender, is established, and the defendant does not have to drive normally due to the influence of the philophone medication. Thus, the defendant's statement that there was no symptoms at the time of driving the vehicle after the philophone medication cannot prevent the establishment of the crime of violation of the Road Traffic Act.

Nevertheless, for reasons indicated in its holding, the lower court did not err by misapprehending the legal doctrine on the establishment of the crime of violating the Road Traffic Act, which is a dangerous offender, in determining that there was no evidence to acknowledge that the Defendant was in a situation where the Defendant could not drive the said vehicle normally due to the influence of philophone administered immediately before the operation of the said

B. Subjective elements, such as intention, are also subject to confession. Thus, the elements that the defendant was in a situation that the defendant could not drive normally due to the administration of phiphones are also subject to confession.

In the above facts charged, “The driver of a motor vehicle, etc. shall not drive a motor vehicle in such a state that he/she is unlikely to drive the motor vehicle normally due to the influence of drugs, such as narcotics, marijuana, and psychotropic drugs,” and it is evident that the defendant led to confession in the first instance trial and consented to the evidence submitted for inspection

Nevertheless, it is difficult to readily understand that the lower court, on the grounds indicated in its reasoning, determined that the Defendant did not appear to have been able to drive normally.

C. Reinforcement evidence for confession is sufficient if it is sufficient to acknowledge that the confession of the defendant is not processed, even though the whole or essential part of the crime is not recognized, and it is sufficient to prove that the confession of the defendant is not processed, and it is also sufficient to prove indirect or circumstantial evidence. In addition, if confession and reinforcement evidence are mutually recorded and it is possible to prove the crime as a whole, it is sufficient to prove the evidence of guilt (see, e.g., Supreme Court Decisions 2005Do8704, Jan. 27, 2006; 2008Do2343, May 29, 2008).

According to the police, prosecutor's statement, and appraisal request report of the non-indicted who has lawfully investigated by the court below, the non-indicted 1 received 0.06g g of philopon from the defendant who has loaded the above Lone Star on February 18, 2010, and stated that the defendant would have driven the above vehicle, and that the defendant would have taken the reaction to train philopon on February 20, 2010. Accordingly, according to the above legal principles, the above evidence is sufficient evidence to reinforce the confession on the part of the charge that the defendant could not drive normally due to the administration of philopon.

Therefore, the lower court erred by misapprehending the legal doctrine on the degree of corroborating evidence.

3. Therefore, without examining the Defendant’s grounds of appeal, all the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)