교통신호위반죄와 신호위반으로 인한 업무상과실치상죄의 범죄사실의 동일성 여부

Abstract

This precedent decided that the professional negligence liability against the traffic accident can be added, after paying the fine against sign violation in the case of a traffic accident by traffic sign violation. However, I can't agree with it, because of the principle of double punishment prohibition. First of all, I tried to prove that the sign violation and the professional negligence were not two actions but one which could not be separated. It was discussed in the view point of the subjective element of action and the protected legal interest. Regarding to the relation of the provision of sign violation and professional negligence, in the basic view point of applying one provision to one criminal action, the controversial point of this precedent was indicated and some solutions were presented. Especially the investigation of the theory related with the decision of criminal action sameness was needed. Recently, some precedents decided that the normal element should be considered in the decision of criminal action sameness. However, the sameness could not be denied in this case, though the normal elements like the subjective element of action and the protected legal interest are regarded. Therefor this precedent is unjustice.