위험운전치사상죄와 음주운전죄의 관계

Abstract

In the case in question, the korean supreme court asserts that each statute considers "drunken driving" and "the offense of dangerous driving resulting in injury or death" different from each other based on the purpose of the legislations and provisions that is alleged to have a kind of structural difference. Nonetheless, the case is not proper based on the following reasons. Following the purpose of legislation or the contents or words, "the offense of dangerous driving resulting in injury or death" has it certain that it first protects human's body or life and secondly guards the safety of transportation because it presupposes the high danger of transportation. Therefore, the supreme court's position that distinguishes two crimes based on the legislative purpose or legal interest for two crimes, is not proper. Second, as long as "the additional punishment act on specific crimes" excludes driving outside of a regular road for the offense of dangerous driving resulting in injury or death, it is not appropriate that the meaning of driving for the offense of the dangerous driving resulting in injury or death is more broadly interpreted than that for offense of drunken driving. Third, courts decide the cases for the meaning of "the impossible condition of normal driving"' simply based on blood alcohol concentration but without consideration of specific driving capability. This understanding leads to the conclusion that hard condition for driving is equal to driving under the influence of alcohol. Nonetheless, the case contradictorily understands that normal driving is impossible under the categorical number of the blood alcohol concentration over 0.05%. In conclusion, the aggravated offense of drunken driving should be absorbed into the offense of dangerous driving resulting in injury or death and cannot stand as an independent offense, because the offense of dangerous driving resulting presuppose the offense of drunken driving as a basic offense. Most of all, if two crimes are treated as different crimes, it results in too excessive punishment in comparison with a degree of legitimacy of criminal activity and also can be a violation of double jeopardy. This kind of decision that can violate the double jeopardy clause in disfavor of double jeopardy will be in violation of the principle of legality. The offense of dangerous driving resulting in injury or death, the offense of drunken driving, the offense of occupational negligence resulting in injury or death, joinder, the traffic accident act, the road traffic act.