도주차량운전자 가중처벌 판례의 비판적 검토

Abstract

The court judgement(1) does not judge whether the church parking lot of this case is applicable to the classified road of the Road Traffic Act, and widely approve not do restrict the meaning of the traffic of the Act in this case although the car was not used to 'original usage' of the Act in that there was the result of the injury after passing considerable time in a situation parked with turning off the engine. Besides, the court judgement(2) excessively approves the establishment by interpreting as contained even the action of identity notice in the necessary action of the Act, although the accident driver took enough follow-up measures substantially to get rid of urgent harm of the victim's life and body. There is no doubt that the accident driver should prevent a risk of victim's life and body to the maximum by performing the duty of rescue certainly, and that the accident driver who fled despite of causing an accident and occurring the result of injure should be punished severely. However, I consider that the purpose of legislation or the benefit and protection of the law based on the risks of driving action of a getaway vehicle, can not be grounded to permit analogical interpretation that adverse the accused and prohibited by the principle of “nulla poena sine lege”. Accordingly, the court judgement (1) and (2) above are not appropriate, and must be sublated extend interpretation. Then, the Supreme Court's judgement interpreting overextended with based on the purpose of legislation or the benefit and protection of the law, as the establishment scope of this case's traffic accident is one thing and the Act's is quite another, brings a corresponding to analogical interpretation prohibited by the principle of “nulla poena sine lege”. Of course, it is possible analogical interpretation for victim's benefits but the conclusion of the Supreme Court's is a disadvantage interpretation for the victim so that the Court's contains a non sequitur.