교통사고에 있어서 태아의 생명에 대한 형법적 보호와 한계 - 태아성치사에 대한 과실치사죄의 성립 가능성 -

Abstract

An unborn child's life is not completely protected in the traffic accident. Even so, the life protection before one is born can not be strengthened through extending the scope of persons who are advanced by the time of them. This attempt is given rise to overprotection of punishment. In this regard, under the legal theory, this paper consists of whether or not a negligent homicide is established only if an unborn child is dead after birth, which is called as a fetal homicide. Therefore, the following part is suggested as a solution with a fetal homicide. If a negligent homicide is only different from a crime of homicide as an intentional offense, but there is no difference substantially between a negligent homicide and a crime of homicide, it is understandable that a negligent fetal homicide is established as a negligent homicide within the scope of admitting the establishment of negligent homicides with abortion as a first action. As a result, At the time of occurrence of objects, which is after a fetus is born, the result of infringement with one's life occurs and the causal relationship shall be admitted between an action and consequence. This regard can admit the establishment of negligent homicides easily when the expected date of delivery gets closer and the period of survival after birth gets longer. In the case of infringement of fetus life resulting from traffic accidents, it definitely distinguishes from whether the infringement is typical abortion or by long-term survival so that the result of infringement of life occurs after a fetus is born and if the causal relationship between the action of traffic accidents and the consequence of infringement of life is admitted, an negligent homicide with fetus can be established. However, it is necessary to confine the punishment even though it shall be decided on whether or not a negligent homicide is established in the case of fetus homicides. Firstly, it is the negligent abortion. An unfair result occurs to punish the negligent abortion for pregnant women if a fetal homicide is punished as a negligent homicide. However, in the case of establishment of negligent homicide with fetal homicides, the negligent homicide for pregnant women is not simultaneously established. Secondly, a fetus homicide cannot punish the symptom of fixed types. That is to say, it is a difference between infringing the current benefit and protection of the law and delivering the infringed one so that it is not admitted on the result of injuries as a change of benefit and protection of the law with one's body. By contrast, if there is no action, it is punishable within the scope where the function of benefit and protection of the law at the specific time is operated.