교통사고 중·상해 판단기준에 관한 연구

Abstract

It is prescribed in the Article 4 Clause 1 of "act on special cases concerning the settlement of traffic accidents" that a driver who commits a crime by inflicting serious bodily injury through occupational or gross negligence of the crimes relating to traffic accidents shall not be prosecuted in case that he has comprehensive insurance. The law was legislated to fast recovery of the damage given by traffic accidents and to improve convenience in civic life. However, the law has brought undesirable results. It removed criminal responsibility from a driver who caused a grave traffic accident. Consequently, the law hindered driver's awareness of safety, infringed on victims' right to make a statement during proceeding trial and the right of national equality. Recognizing this problem, the Constitutional Court announced the Article 4 Clause 1 of "act on special cases concerning the settlement of traffic accidents" is against the constitutional law. According to the decision of the Constitutional Court, it became possible to prosecute drivers who caused grave traffic accidents. And some changes are expected like decrease of traffic accidents by inspiring awareness of traffic safety, diversification of automobile insurance policy, an increase of the police's work load related to traffic accidents and the specialization of handling grave traffic accidents. If a driver and victim do not come to a mutual agreement, even if the driver has a comprehensive insurance, it is possible to prosecute the driver who caused grave traffic accident so it became important to judge criteria of serious injury in traffic accidents. Except article 258 of criminal law there is no set criteria of serious injury and even article 258 of criminal law does not explain precisely what serious injury is. Moreover, there are almost no judicial cases, related to serious injury caused by traffic accidents, a lack of criteria of serious injury could cause legal disputes. As the Article 4 Clause 1 of "act on special cases concerning the settlement of traffic accidents" is unconstitutional in cases of causing serious injury to victims of traffic accidents, the prosecution sets a guideline concerning serious injury but that guideline is not concrete enough to resolve traffic accidents fairly and accurately. The concept of serious injury should be more concrete and clear than the concept in article 258 of the criminal law, and objective standards and guidelines are needed for this concept. Severity of Disability in the State Tort Liability Act or The Abbreviated Injury Scale (AIS), Injury Severity Score (ISS), which the medical profession uses as a standard of Trauma, can be used as guidelines concerning serious injury. If these guidelines are applied to the Act on Special Cases Concerning the Settlement of Traffic Accidents, it is possible to handle traffic accidents causing serious injury more objectively and clearly. A system in which health and academic experts participate should be set to judge serious injury correctly when the police and the prosecution are resolving traffic accidents.