20 Highest 3760 Violation of the Road Traffic Act (driving)

Park Jong-Defendant, 69 years old, South and North Korea

Residential Ulsan

Kim Tae-tae (Public Prosecution), Lee Jong-ho (Public Trial)

Attorney Park Do-young

February 9, 2021

Defendant shall be punished by a fine of 12,00,000 won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for the period calculated by converting KRW 100,000 into one day.

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

Criminal History Office

【Criminal Power】

On December 29, 2008, the Defendant received a summary order of a fine of one million won for a violation of the Road Traffic Act from the Ulsan District Court on December 29, 2008.

【Criminal Facts】

On July 21, 2020, at around 00:04, the Defendant was under the influence of alcohol with 0.129% of blood alcohol concentration 0.129%, and the Defendant driven the shipping zone in Busan Shipping Daegu** AMW 640d car from approximately 5 meters to the restaurant parking lot in front of the restaurant. Accordingly, the Defendant violated the prohibition of driving under the influence of alcohol more than twice.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness;

1. Report on the results of the crackdown on drinking driving and the circumstantial statement of a drinking driver;

【At the time of making a statement of inquiry, such as criminal records, and one copy of a summary order

Application of Statutes

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

Articles 148-2 (1) and 44 (1) of the Road Traffic Act (Selection of Fine)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Judgment on the defendant and defense counsel's assertion under Article 334 (1) of the Criminal Procedure Act

The defendant and defense counsel argued that the defendant's moving of the vehicle constitutes an emergency evacuation.

In order to constitute "emergency evacuation" under Article 22 (1) of the Criminal Code refers to an act with a substantial reason to avoid the present danger to one's own or another's legal interests, and in this context, "act with a reasonable reason", the act of escape shall be the only means to protect the legal interests faced with a peril, the second method to give the most minor damage to the victim, and the third method to give the benefits preserved by the act of escape shall be more superior to the benefits so infringed, and fourth, the act of escape must be a proper means in light of social ethics or the overall spirit of legal order (see, e.g., Supreme Court Decision 2005Do9396, Apr. 13, 2006).

According to the above evidence, the following facts are acknowledged.

① The Defendant, who was not a proxy officer for returning home to Ulsan who is a residence in Busan, had a proxy officer be parked on the road in front of the restaurant ***.

② Although the Defendant’s substitute engineer stated that he would leave a female passenger, and that he would immediately start from Ulsan, the Defendant and female winners would have been fluored more than several minutes, and other vehicles going behind the Defendant’s vehicle behind the Defendant’s vehicle, which led to the Defendant’s driver’s vehicle. ③ The Defendant attempted to get the remainder of the substitute engineer who mistakend to the effect that the substitute engineer was fluorily fluored from the vehicle to the Defendant’s vehicle. The Defendant attempted to go back from the vehicle to the other substitute engineer. However, since there was no substitute engineer, the first substitute engineer was placed on the spot upon request of the Defendant’s substitute engineer from the point out of the instant site to the scene.

④ After the Defendant had initially been placed at the site, the Defendant was driving his car at the driver’s seat of the car, with approximately 5 meters of the parking lot of the above restaurant, and the agent reported this to the police immediately.

According to the above facts, it is difficult to recognize the defendant's driving act as meeting the requirements for emergency evacuation, even if the defendant's vehicle stops on one-lane road and obstructs the passage of other vehicles, in full view of the fact that the defendant's driver's vehicle was stopped and interfered with the passage of the other vehicles as a result of the passage of ditches between the defendant and the female passenger, and that it was close to the other vehicles. However, although the restaurant located near the place where the defendant stopped was in operation, and the restaurant parking lot was in operation, and it seems that the vehicle could have been moved with another person's help within the time that the vehicle was stopped immediately adjacent to the place where the defendant stopped, it is difficult to recognize that the defendant's driver's driver's act satisfies the requirements for emergency evacuation.

The defendant and defense counsel shall not be accepted.

The reason for sentencing (legal punishment: imprisonment with prison labor for not less than two years but not more than five years, or a fine of not less than 10 million won but not more than 20 million won) is heavy in that the defendant drives a motor vehicle again despite the fact that the defendant had been punished for the same kind of crime. However, the defendant has no other history of punishment, and the same type of crime is a crime committed before about 12 years, and the distance of the vehicle is not that of the defendant, and the defendant is likely to have used the substitute driving at ordinary times without the distance of the vehicle, and the defendant is likely to have used the substitute driving at his/her ordinary times. In addition, the punishment is determined as ordered in consideration of various factors of sentencing such as the defendant's age, environment, blood alcohol

Judges Kim Gin-Un