(a) Whether the exhaust displacement of less than 50cc corresponds to the "motor bicycle" under Article 2 of the Road Traffic Act (negative);

B. Whether the crime under Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is not recognized, but the court should punish the crime without modification of the indictment in case where the crime is recognized (affirmative)

A. Article 2 subparagraph 15 of the Road Traffic Act provides that the term "motor bicycle" means a vehicle prescribed by the Ordinance of the Ministry of Home Affairs from among two-wheeled bicycles under Article 3 of the Automobile Management Act, and Article 3 of the Automobile Management Act and Article 2 of the Enforcement Rule of the same Act provides that those below 50 cc exhaust displacement shall not be included in the motor device under Article 2 of the Road Traffic Act, so it does not constitute a motor device under Article 2 of the Road Traffic Act.

B. The crime under Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is established when a person who commits the crime under Article 268 of the Criminal Act runs away without aiding and abetting the victim. Thus, the crime of injury by occupational negligence under Article 268 of the Criminal Act is included in the crime under Article 5-3 of the Act on the Aggravated Punishment, etc. of Specific Crimes. Thus, in case where a public prosecution is instituted due to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, if

(a) Article 2 of the Road Traffic Act, Article 3 of the Automobile Management Act, and Article 2 attached Table 1(b) of the Enforcement Rule of the same Act;

(a) Supreme Court en banc Decision 90Do1516 Decided November 27, 1990

Defendant

Prosecutor

Daegu High Court Decision 90No160 delivered on May 9, 1990

The judgment of the court below is reversed.

The case shall be remanded to the Daegu High Court.

1. Judgment on the first ground for appeal

Article 2 subparagraph 15 of the Road Traffic Act provides that "the bicycle for motor means a vehicle prescribed by the Ordinance of the Ministry of Home Affairs from among two-wheeled bicycles under Article 3 of the Automobile Management Act, and Article 3 of the Automobile Management Act and Article 2 of the Enforcement Rule of the same Act provide that "the motor bicycle for motor" shall not be included in the motor bicycle (see Supreme Court Decision 90Do1516 delivered on November 27, 1990). Thus, the court below is just to deem that the bicycle for the defendant's boarding does not constitute the motor bicycle under Article 2 of the Road Traffic Act, and there is no error of law such as theory of lawsuit.

2. Judgment on the second ground for appeal

The crime provided for in Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is established when a person who commits a crime provided for in Article 268 of the Criminal Act runs away without aiding and abetting a victim, and the crime of bodily injury by occupational negligence provided for in Article 268 of the Criminal Act shall be deemed to be included

Therefore, if a public prosecution is instituted due to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the above crime is not recognized as a result of the deliberation of the case, but if the crime is recognized as an injury caused by occupational negligence, it should be punished as a crime without any modification of the indictment procedure (see Supreme Court Decision 89Do2360 delivered on March 13,

However, the judgment of the court below did not judge whether the injury caused by the victim Kim by mistake that the defendant was caused by the misunderstanding of the facts charged constitutes the injury caused by occupational negligence as stipulated in Article 268 of the Criminal Act. Therefore, the appeal pointing this out has merit.

3. Therefore, the part of the judgment of the court below convicting the defendant is reversed for a new trial and determination, and the corresponding part of the case is remanded to the Daegu High Court. It is so decided as per Disposition with the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)