(영문) 서울고등법원 2020.11.19.선고 2020누42356 판결

A. (1) On October 2, 2019, around 01:30, the Plaintiff driven (hereinafter referred to as “the instant car”) a car driving (hereinafter referred to as “the instant car”) in the state of alcohol of 0.171% of blood alcohol level at Cdong of Dobong-gu Seoul Metropolitan Government (hereinafter referred to as “the instant apartment”). On October 30, 2019, the Defendant issued a disposition to revoke the Plaintiff’s driver’s license (hereinafter referred to as “the instant disposition”) on the ground of the instant car driving on the ground of the instant drunk driving (hereinafter referred to as “Class II”).

3) The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission on November 7, 2019, but was dismissed on December 17, 2019.

B. On February 13, 2020, the Plaintiff was convicted of a fine of 5 million won at the Seoul Northern District Court on February 13, 2020, and the said judgment became final and conclusive around that time (Seoul Northern Northern District Court 2019 High Court 1769);

C. 1) In the case of the instant apartment, as seen in attached Form 1. Ga-dong and F-dong, as seen in attached Form 1. 1.

On the side of each building, one parking zone (hereinafter referred to as a "vehicle parking zone"), two parking spaces are installed in the center, and two parking spaces are installed in the center, and the area between the parking zone and the center is used as a passage zone (hereinafter referred to as a "lane zone").

2) Since the lack of parking space thereafter, the apartment of this case, as seen in Annex 1. 2. The apartment of this case, with a width equivalent to the vehicle’s width from the rectangular parking zone as seen in Annex 1. Sheet No. 2. Gam on the apartment of this case, a line with a white light from the rectangular parking zone, was designated and operated as an area in which a vehicle can be parked (referred to as a “fluort parking zone” hereinafter) (the part marked as a rectangular type among the above 2. 1. 1. 2.). The part of the passage zone was designated as a usual parking zone, and as seen in Annex 1. 2. Gam-dong as seen in Annex 2. Gam-dong, a one-way passage was operated along that parallel.

D. The place where the Plaintiff driven the instant drinking water was designated in the front of Cdong and did not deviate from the usual parking zone.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 12, 14, the purport of the whole pleadings

2. Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) A usual parking zone, which is a place of drinking alcohol in the instant apartment complex, cannot be deemed as a “road” under the Road Traffic Act, as a parking lot within the instant apartment complex. Therefore, the instant disposition on a different premise is unlawful.

2) After the Plaintiff arrived at the parking lot in the apartment complex of this case using a substitute driving, the Plaintiff tried to deduct the key of the car from the passenger vehicle of this case through the chieflight, and the car of this case was shocked to the vehicle of this case, which was parked in the future, thereby causing a chain of collision. In order to prevent additional collisions by driving the car of this case again, the Plaintiff was behind 3 meters through the drinking driving of this case. Ultimately, the Plaintiff’s driving of this case constitutes a legitimate act or an emergency evacuation, and thus, the instant disposition of this case is unlawful.

B. Determination

1) Whether it falls under "road under the Road Traffic Act"

A) Article 2 subparag. 26 of the Road Traffic Act provides that the term “driving” refers to the use of a vehicle or horse in accordance with its original purpose and use (including operation) on a road (including places other than a road in cases falling under Articles 44, 45, 54(1), 148, 148-2, and 156 subparag. 10). In light of the fact that Article 44 of the Road Traffic Act and Article 148-2 of the Road Traffic Act, which are the provisions related to criminal punishment for a violation of Article 14 of the Road Traffic Act, are stated only 2, etc. and Article 93 of the Road Traffic Act, which are the provisions related to administrative disposition such as revocation and suspension of a driver’s license, is limited to driving on a road other than a road, and it does not mean driving on a road other than a road (see, e.g., Supreme Court Decision 2013Du131931, May 13, 2013).

Article 2 subparag. 1 of the Road Act provides that the term "road" means a road under the Road Act (a) and a toll road under the Toll Road Act (b) and an agricultural and fishing village road under the Act on the Maintenance and Improvement of Road Systems, and a place where it is necessary to secure safe and smooth traffic of unspecified persons or motor vehicles and horses in reality. The place referred to in the above item (d) refers to a place where the public nature of the general traffic police authority for the purpose of maintaining traffic order exists, etc., and a place where only a specific person or a person with a specific building related thereto can be used and managed independently (see, e.g., Supreme Court Decision 2010Do6579, Sept. 9, 2010).

B) The instant disposition is premised on the premise that the place of the instant drinking driving falls under the “road” under Article 2 subparag. 1 (d) of the Road Traffic Act. Thus, first, the instant disposition constitutes “the place of the instant drinking driving” where a large number of persons, vehicles, and horses are allowed to pass through.

In full view of the following facts and circumstances that can be acknowledged by comprehensively considering the evidence mentioned above, Gap's evidence Nos. 3, 7, 8, 11 through 14, Eul's evidence Nos. 13 and Eul's testimony of the court of first instance witness E, it is difficult to regard the place of drinking driving of this case as "the place where a certain large number of persons or vehicles and horses are open to the public for their passage."

① The instant apartment complex is marked as above. The instant apartment complex is a flat parking zone located in the instant apartment complex. The instant apartment complex is a small-scale area with six consent. The main entrance and exit for vehicle traffic and the secondary entrance and exit of the apartment complex are located on the road located on the east (attached Form 1-3). The remainder, other than the entrance and exit for pedestrian traffic on the north side, are installed on the wall installed along the boundary, and it is difficult to view that the main entrance and exit are installed in the same direction and the secondary entrance and exit are short so that they cannot enter another road via the instant apartment complex.

② Each of the above entrance has a security room and a blocker operated in a manual (current time has been replaced by an automatic blocker), and there is a notice board to the effect that "parking vehicle parking is prohibited, a vehicle parking certificate is attached to occupants, and a visiting vehicle is attached via the essential guard room." Security guards are parking management, etc. for the purpose of crime prevention, safety, and smooth passage of vehicles in the complex, such as having access after being issued a vehicle entrance ticket not registered for securing parking spaces while staying in a security room.

③ In the apartment of this case, security guards take rest from 23:00 to 05:00 the next day, and thus, the entrance blocking was installed. The drinking driving of this case took place during the above hours. However, the running of the apartment of this case was an inevitable measure for security guards to take rest and cut off the entrance blocking at night in the apartment of this case, and it cannot be viewed as allowing unspecified vehicles to pass through at night, unlike the daytime.

④ The instant apartment security guards seem to allow the entry and exit of the instant apartment without confirming the destination or issuing a parking straw. However, the said vehicles are different from the general vehicles in the external form, etc., and the purpose of the said vehicles is to ensure the convenience of the residents of the instant apartment, and the time of the visit is relatively short, it is difficult to view the passage, etc. inside the instant apartment solely on the ground that the said vehicles actually entered without any removal.

C) Next, we examine whether the place of drinking driving of this case constitutes "place where safe and smooth traffic needs to be secured".

In full view of the fact that the road parking zone, which is a drinking-driving place, is located in the west wall of the apartment complex of this case and the 2, 5 dongs and 5 dongs located in front of the apartment complex, and is located in the outside, it is possible to go through the main entrance passage with the main entrance. Since the part other than the dongs are located in the 2, 2, or 5 dongs or 5 dongs, it is mostly used for the parking or passage of the outside vehicle, and it is difficult to use the 2, 5, or 5-dongs or related visitors, and even if the vehicle or articles are left unattended in the road parking zone which is a drinking-driving place of this case, it is difficult to view that the traffic police officer needs to move out and remove them, and as seen above, it is difficult to view that the road of this case, including a drinking-driving parking zone, has installed a guard room, signboard, and a blocking installed in front of each entrance of this case and managed the access of external vehicles.

D) Ultimately, the place of drinking under the instant case does not fall under the “road” under Article 2 subparag. 1 (d) of the Road Traffic Act.

2) Sub-committee

Therefore, the disposition of this case on the premise that the place of drinking driving of this case constitutes "road prescribed by the Road Traffic Act" shall be deemed unlawful without any need to further examine the plaintiff's other arguments.

3. Conclusion

If so, the plaintiff's claim of this case shall be accepted as reasonable, and since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal shall be accepted, and the judgment of the court of first instance shall be revoked, and the disposition of this case shall be revoked as per Disposition.