음주측정불응죄의 필요성과 정당성에 대한 검토

Abstract

In this paper, the history, necessity and legitimacy of the offense not to respond to taking a drunkometer test are reviewed, the problems of it are pointed out, and the improvement measures of it are suggested. The main contents of this paper are summarized as follow: First, the Road Traffic Act gives police officers the right to conduct a drunkometer test for drivers under the influence of alcohol and inflicts punishment on them and brings those who reject to take a drunkometer test to justice. But the offense not to respond to taking a drunkometer test has many problems in the viewpoint of necessity and legitimacy. Although the Constitutional Court judged that it does not violate the constitutional law which guarantees the right to remain silent, warrant-requirement principle, due process of law, and so forth, the Supreme Court has restricted the application of it through the intention of continuous driving, the rules related to a drunkometer test, the subject of the offense not to respond to taking a drunkometer test, and so forth. Second, in the viewpoint of the criminal law principle such as the supplement principle or the necessity principle, if the compulsive taking a blood sample is possible through the arrest of a criminal taken in an act of crime or the emergency arrest or the order system for the compulsive taking a blood sample is introduced, the offense not to respond to taking a drunkometer test is not necessary. Therefore the necessity of it is not approved. Third, if the necessity of the offense not to respond to taking a drunkometer test is not approved, the legitimacy of it is also not approved. Because, if the offense not to respond to taking a drunkometer test is not necessary, it violates the principle of “nulla poena sine lege”. Moreover, the offense not to respond to taking a drunkometer test violates the principle of responsibility, the equity of the penalty in law, the principle of proportionality, the presumption of innocence, and so forth.