Whether a person who violated Article 44(1) or (2) of the former Road Traffic Act at least twice prior to the enforcement of the amended Road Traffic Act to “a person who violated Article 44(1) or (2) of the Road Traffic Act at least twice” as prescribed by Article 148-2(1) of the same Act as amended by Act No. 16037 of December 24, 2018 includes a criminal record of violation of Article 44(1) or (2) of the former Road Traffic Act (affirmative), and whether such interpretation violates the principle of non-prosecution of a punishment or the principle of prohibition against double Jeopardy (negative) / Whether the period of calculation of the number of violations of Article 148-2(1) of the Addenda of the amended Road Traffic Act (amended by Act No. 16037 of Dec. 24, 2018) is interpreted to include only the previous conviction after the enforcement of the amended Road Traffic Act (negative)

Article 44 of the Road Traffic Act provides for “the prohibition of driving under the influence of alcohol,” while Article 44(1) provides that no person shall drive a motor vehicle, tram, or bicycle while under the influence of alcohol, and Article 148-2(1) of the Road Traffic Act (amended by Act No. 16037, Dec. 24, 2018; hereinafter “Revised Road Traffic Act”) provides that a person who violates Article 44(1) or (2) of the Road Traffic Act on at least two occasions (limited to a person who drives a motor vehicle, etc. or tram) shall be punished by imprisonment with prison labor for at least five years but not exceeding ten million won and by a fine not exceeding twenty million won.

In light of the language and legislative intent of the above provision, “a person who violates Article 44(1) or (2) of the Road Traffic Act not less than twice” should be deemed to include a criminal record violating Article 44(1) or (2) of the former Road Traffic Act before June 25, 2019, which was amended as mentioned above, prior to the enforcement of the Road Traffic Act. Such interpretation does not contravene the principle of non-prosecution of punishment or the principle of res judicata.

Article 2 of the Addenda to the amended Road Traffic Act provides that the number of violations shall be calculated from the date of June 30, 201 when calculating the number of violations under Articles 82(2) and 93(1)2 of the Road Traffic Act. On the other hand, the calculation of the number of violations under Article 148-2(1) does not specifically provide for the calculation of the number of violations under Article 148-2(1). Even if the calculation of the number of violations under Article 148-2(1) does not include the calculation of the number of violations under Article 148-2(1), it cannot be interpreted that the violation includes only the previous conviction

Article 13(1) of the Constitution of the Republic of Korea; Article 44(1), (2), and (4) of the former Road Traffic Act (Amended by Act No. 16037, Dec. 24, 2018); Article 44(1), (2), and (4), 82(2), 93(1)2, and 148-2(1) of the Road Traffic Act; Article 2 of the Addenda (Amended by Act No. 16037, Dec. 24, 2018)

Supreme Court Decision 2012Do10269 Decided November 29, 2012 (Gong2013Sang, 112)

Defendant

Defendant

Law Firm LLC, Attorneys O Young-gu et al., Counsel for the plaintiff-appellant

Seoul Central District Court Decision 2019No3564 Decided May 22, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. Whether the provisions of the punishment for drunk driving under the Road Traffic Act violate the principle of no punishment due level; and

A. Article 44 of the Road Traffic Act provides for “the prohibition of driving under the influence of alcohol.” Article 44(1) of the same Act provides that no person shall drive a motor vehicle, tram, or bicycle while under the influence of alcohol, etc., and Article 148-2(1) of the Road Traffic Act (amended by Act No. 16037, Dec. 24, 2018; hereinafter “Revised Road Traffic Act”) provides that a person who has violated Article 44(1) or (2) of the Road Traffic Act on at least two occasions (limited to a person who drives a motor vehicle, etc. or tram) shall be punished by imprisonment for at least five years but not less than ten million won and by a fine not exceeding twenty million won.

In light of the language and legislative intent of the above provision, “a person who has violated Article 44(1) or (2) of the Road Traffic Act at least twice” should be deemed to include a criminal record violating Article 44(1) or (2) of the former Road Traffic Act before June 25, 2019, which was amended as mentioned above. Such interpretation does not violate the principle of non-prosecution of punishment or the principle of prohibition against double Jeopardy (amended by Act No. 10790, Jun. 8, 2011; see Supreme Court Decision 2012Do10269, Nov. 29, 2012).

Article 2 of the Addenda to the amended Road Traffic Act provides that the number of violations shall be calculated from June 30, 201 when calculating the number of violations under Articles 82(2) and 93(1)2 of the Road Traffic Act. On the other hand, the calculation of the number of violations under Article 148-2(1) is not specifically prescribed. Even if the calculation of the number of violations under Article 148-2(1) was not set the starting point for calculating the number of violations under Article 148-2(1), it cannot be interpreted that the violation is included only in the previous conviction after the enforcement of the amended Road Traffic Act.

나. 원심은 다음과 같은 이유로 이 사건 공소사실을 유죄로 판단하였다. 피고인은 2019. 8. 4. 음주운전을 하였다고 의심할 만한 상당한 이유가 있어 경찰공무원으로부터 3회에 걸쳐 음주측정기에 입김을 불어넣는 방법으로 음주측정에 응할 것을 요구받았는데도 음주측정기에 입을 대고 부는 시늉만 하는 방법으로 음주측정요구에 응하지 않았다. 피고인은 2015. 3. 6. 서울중앙지방법원에서 도로교통법 위반(음주운전)죄 등으로 징역 8개월에 집행유예 3년을 선고받았고, 2017. 3. 30. 서울동부지방법원에서 같은 죄 등으로 징역 6개월을 선고받았다. 따라서 피고인은 도로교통법 제44조 제1항 또는 제2항 을 2회 이상 위반하였다.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the principle of no punishment or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Whether the sentencing is unreasonable

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. Therefore, in this case where a more minor sentence has been imposed on the defendant, the argument that the sentence is too unreasonable

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)