교통사고처리 특례법에서 교통사고의 의미와 운전자의 범위- 대법원 2017. 5. 31. 선고 2016도21034 판결에 대한 평석 -

Abstract

In this paper, the issues of the Supreme Court decision related to the meaning of the traffic accident and the scope of the driver under the Special Cases concerning the Settlement of Traffic Accidents are reviewed. The main contents of this paper are summarized as following: First, the prosecutor conceived certain traffic accidents as accidents of the Special Cases concerning the settlement of traffic accidents only when vehicles cause death or injury to people or destroy objects during driving. However, the Special Cases concerning the Settlement of Traffic Accidents signify the traffic accidents that are caused from the act of driving vehicles in venues where traffic takes place or the acts that are so closely related that they can be considered equivalent to driving. Therefore, it seems that the prosecutor’s claim is based on the incomprehensive understanding of the Special Cases concerning the Settlement of Traffic Accidents. Second, the first instance decision and the appellate judgment where this case was recognized as a traffic accident under the Special Cases concerning the Settlement of Traffic Accidents both serve the legislative purpose and also correspond to the consistency of precedents. Furthermore, though it is acceptable that the first instance court and trial on appeal considered the defendants as joint principal offender according to Clause 1, Article 3 of the Special Cases concerning the Settlement of Traffic Accidents, it seems that a clear and lucid argument is missing. Specifically, the fact that the first instance decision and appellate judgment did not mark the Article 33 of Criminal Law as reference provisions is a critical defect. Moreover, it left much to be desired in the first instance court and trial on appeal where arguments lacked regarding the joint principal offender who, though not driving, is also considered a driver according to Clause 1, Article 4 of the Special Cases concerning the Settlement of Traffic Accidents. Third, the Supreme court’s decision to maintain the trial on appeal and the first instance decision and to dismiss the prosecutor’s final appeal deeming the defendant 2 as being under the Special Cases concerning the Settlement of Traffic Accidents goes along with the precedents’ consistent attitude and the legislative purpose of the Special Cases concerning the Settlement of Traffic Accidents. Nevertheless, the Supreme court’s decision to consider defendant 1 as irrelevant to both the joint principal offender according to Clause 1, Article 3 of the Special Cases concerning the Settlement of Traffic Accidents and the exceptional subject in Clause 1, Article 4 seems to be wrong. The duty of care and negligence of both defendants are identical and the defendant 1 is in the leading or a cooperative position with defendant 2. Therefore, even if Clause 1, Article 3 of the Special Cases concerning the Settlement of Traffic Accidents is considered a sonderdlikt, defendant 1 should be judged as the joint principal offender according to Article 33 of Criminal Law. Moreover, if the Automobile Accident Compensation Security Law or the legislative purpose of the Special Cases concerning the Settlement of Traffic Accidents is taken into account, people who did not drive can be regarded as drivers in the Special Cases concerning the Settlement of Traffic Accidents. In short, people who were not driving can be the joint principal offender with the driver according to Clause 1, Article 3 of the Special Cases concerning the Settlement of Traffic Accidents, and in this case, it can be interpreted that the non-driver is considered as a driver under Clause 1, Article 4. Such interpretation not only matches the normative principles or principle of criminal policy such as the principle of legality, the principle of subsidiarity, decriminalization, protection of victim etc but also corresponds to the common-sense judgments and consideration of fairness.