교통사고처리특례법 제4조 제1항의 위헌결정에 대한 형사정책적 검토

Abstract

The ruling that declared the restriction of right of arraignment according to exemption law is unconstitutional in case of grieve bodily harm regardless of light/heavy negligence poses several problems. This is especially the case in heavy negligence, but it is in overall problematic in execution levels if negligence is not considered. Even though heavy negligence is not seen as a weighing factor of professional negligence and instead either is seen as a weighing factor of normal negligence in criminal law, the ruling completely ignores this. It is also problematic in that heavy negligence is not a solid concept and leaves much to the judgement of the jury. In addition, the fact that decision of heavy negligence depends on doctor's opinion is also a problem. The unconstitutional declaration saw the exemption law as a violation of the equality rights, but it actually helps the people's convenience by speeding up the process of compensation, and the differentiation of death and heavy negligence is according to their inherent differences. The exemption law serves its purpose by transferring the loss of property of victims to the car insurance and preventing the mass production of ex-convicts.