도로교통법 위헌결정을 기반으로 한 변화방향에 관한 소고

Abstract

Drunk driving accidents are on the rise every year. These drunk driving traffic accidents have no choice but to approach a bigger problem in that they will cause a large number of unspecified victims, apart from causing harm to the driver. Our society has continuously considered various drunk driving prevention policies and pursued traffic stability through them. In the process, the main method suggested was legal sanctions. Article 148-2 (1) of the Road Traffic Act is also an aggravated punishment regulation that emerged due to the seriousness of the consequences of drunk driving and the social outrage brought about by the death of innocent citizens. Recently, the provision was proposed to be unconstitutional for the following reasons. First, the concept of 'a person who violates more than twice' is unclear and violates the principle of clarity. Second, it violates the principle of proportionality between responsibility and punishment in terms of the problem of violating the principle of equality because the lower limit is too heavy compared to other regulations, and the imposition of excessive punishment without distinguishing the type of conduct. Based on the decision of the Constitutional Court in this regard, we have summarized the problems with the regulations and related issues. Recently, in our society, criminal legislative procedures based on such strict punishmentism have been the subject of many problems and have been carried out. In this regard, the effectiveness of severe punishmentism was confirmed by analyzing the grounded theory of severe punishmentism and examining the expected effects in modern society. Based on this, we have summarized the direction that our future criminal legislation should aim to avoid repeating the same problem as Article 148-2 (1) of the Road Traffic Act. Criminal legislation, which emerged out of social necessity, should not simply aim for aggravated punishment, but should be a legislative promotion that meets the constitutional standards. and adequacy need to be consolidated.