도로교통법상 무과실 운전자에게 부여된 교통사고발생시 조치의무와 형사처벌의 정당성

Abstract

Traffic laws are mainly purposed to secure traffic safety by means of preventing all of traffic injuries and damages and enjoin a consistent duty on the persons involved in the case of traffic accident on the road. The duty of measures in the case of traffic accident is enjoined on the driver with intent, negligence, and no fault and in the case of violating it, even the no-fault driver is subject to a criminal punishment. When one examines theoretically with whether or not a no-fault driver is enjoined on the duty of measures in the case of traffic accident, it is hard for him/her not having the requisite of the law to consider a preceding act as an intentional duty. As a result, it is reasonable that enjoining an intentional duty on the no-fault driver shall be based on the laws. The question is whether or not the criminal punishment is reasonable for the no-fault driver failing the intentional duty. If a no-fault driver is included in the subject of the criminal punishment in the case of failure of intentional duty, it is possible to be a conflict with the principle of criminal law. The reason is that enjoining the duty of measures on the no-fault driver in the traffic accident is regarded as imposing a no-fault person on a duty and consequently, imposing on the criminal punishment when he/she violates it stands in contrast to the great principle that a criminal punishment is enjoined on a duty. This article enjoined a driver on the duty of measures regardless of whether or not he/she has intent, negligence, and no-fault and regulated that the violation of the duty is considered as all same criminal acts and the criminal punishment is also imposed on the same statutory penalty. However, I argue that the regulation that a no-fault driver is imposed on the duty of measures in the case of traffic accident and the subject of criminal punishment is regarded as overcriminalization and overpunishment against appropriateness. As a result, it is reasonable that imposing of fine as an administrative order punishment, not a criminal punishment fulfills both the doctrine of liability and appropriateness when a person violates the duty of measures, even though traffic laws enjoin a no-fault driver on the duty of measures in order to accomplish their purpose The duty of measures enjoins a person on the same criminal punishment regardless of his/her intent, negligence, and no-fault in the case of traffic accident. The level of liability with respect to the causes of traffic accidents is quite different so that the criminal punishment with regard to the violation of duty of measures shall be proportional to the level of liability resulting from traffic accidents. Therefore, it is desirable to revise that a criminal punishment between persons who causes a traffic accident with intent and negligence shall be divided on the duty of measures.