209No308 Violation of the Motor Vehicle Management Act

○○ (Yeong-gu, △△-gu, △-gu, △-gu)

Haban-dong 650 00

Suwon-si, Suwon-si, Suwon-dong ○

Defendant

Driedjins

Seoul Southern District Court Decision 2008 High Court Decision 4108 Decided February 4, 2009

May 6, 2009

The judgment of the court below is reversed.

The sentence of punishment shall be suspended for the defendant.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles: Defendant’s act of installing burgic machinery in the freight partitions of the instant vehicle does not constitute alteration of vehicle structure.

B. Unreasonable sentencing: The sentence of the court below is too heavy.

2. Determination

A. misunderstanding of facts or misapprehension of legal principles

Article 34 of the Motor Vehicle Management Act provides that the owner of a motor vehicle shall obtain approval from the competent authority when he/she intends to change the structure and devices of the motor vehicle, which are prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs, and Article 8 (1) 3 and (2) 10 of the Enforcement Decree of the same Act and Article 55 (1) of the Enforcement Rule of the same Act apply thereto.

Comprehensively taking account of the evidence duly adopted and examined by the court below, the defendant is found to have installed 5 parts of the 1 ton of the vehicle of this case using the 1st ton of the truck of this case (3 cm and 2 cm long) with the 5 parts of the viser machinery (15cm x 130cm x 40cm x 40cm) and installed a cover of the vehicle at a higher location than 15cm than the machinery. If the facts are the same, the defendant's act of installing the above viser machinery of this case constitutes a change of the total weight of the vehicle exceeding the easy limit of the viser, goods loading equipment, etc., and therefore the above argument by the defendant is without merit.

B. The assertion of unfair sentencing

In full view of all the sentencing conditions shown in the pleadings of the instant case, including the Defendant’s age, character and conduct, family environment, motive and circumstance leading to the instant crime, and circumstances before and after the instant crime, the Defendant’s punishment (the fine of KRW 200,000) sentenced by the lower court is deemed to be too unreasonable, and thus, is deemed to be unreasonable.

3. Conclusion

Thus, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 81 subparagraph 12 of the Automobile Management Act and Article 34 (Selection of Fines)

1. The type to be suspended;

Fine 200,000

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act (50,000 won per day)

1. Suspension of sentence;

Article 59(1) of the Criminal Act ( considered the favorable circumstances as seen above)

Judge Park Jong-dae

Judges Kim Young-young

Judges Cha fixed-term0