본문 바로가기
KERD
논문KCI 등재

신호위반 범칙금을 납부한 자에 대한업무상 과실치상죄로의 처벌가능성 - 대상판결: 대법원 2007. 4. 12. 선고 2006도4322판결 -

The possibility of the punishment of professional negligence resulting in bodily injury againstthe payer who paid a signal ticket penalty

0

조회

0

다운로드

1

인용

0

참고문헌

키워드

초록

The court ruling showed that the punishment of professional negligence resulting in bodily injury against to the payer who caused the traffic accident, received notice(Notification Disposition) and paid the penalty does not run counter to the prohibition of Double jeopardy of the Road Traffic Act. There are, however, differences of opinion on an improper judgment. There statement is based on placing the act of a traffic violation and the act of professional negligence in the same category. I consider that the court's decision is valid eventhough that is not perfectly logical. First, the court's ruling should be imposed on crimes, and once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. Therefore, avoiding punishment on the basis of the res judicata for the illegal act without the court's decision is not valid. Stretching the scope of the objects that are not able to be punished to 'the crime' on the basis of the clause runs counter appropriate interpreting because the clause of the Road Traffic Act stated that the scope of an illegal act is defined for the payer who paid money penalty already and can avoid of punishment Second, the certain illegal act is the crime by the Road Traffic Act, but where there is a payer who received notice and paid the penalty, the penalty means the administrative punishment. Thus, multiply imposition the criminal penalty on the administrative punishment does not run counter the principal of prohibition of Double jeopardy. Third, as the consequence of professional negligence resulting in bodily injury occurred with closely connected with time and place in the case of the court ruling, I admit that basic fact is equal. However, it is not valid to apply the res judicata for the payer who paid the money penalty on the basis of identity so that the punishment of professional negligence resulting in bodily injury against the payer does not run counter the principal of prohibition of Double jeopardy.

Abstract

The court ruling showed that the punishment of professional negligence resulting in bodily injury against to the payer who caused the traffic accident, received notice(Notification Disposition) and paid the penalty does not run counter to the prohibition of Double jeopardy of the Road Traffic Act. There are, however, differences of opinion on an improper judgment. There statement is based on placing the act of a traffic violation and the act of professional negligence in the same category. I consider that the court's decision is valid eventhough that is not perfectly logical. First, the court's ruling should be imposed on crimes, and once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. Therefore, avoiding punishment on the basis of the res judicata for the illegal act without the court's decision is not valid. Stretching the scope of the objects that are not able to be punished to 'the crime' on the basis of the clause runs counter appropriate interpreting because the clause of the Road Traffic Act stated that the scope of an illegal act is defined for the payer who paid money penalty already and can avoid of punishment Second, the certain illegal act is the crime by the Road Traffic Act, but where there is a payer who received notice and paid the penalty, the penalty means the administrative punishment. Thus, multiply imposition the criminal penalty on the administrative punishment does not run counter the principal of prohibition of Double jeopardy. Third, as the consequence of professional negligence resulting in bodily injury occurred with closely connected with time and place in the case of the court ruling, I admit that basic fact is equal. However, it is not valid to apply the res judicata for the payer who paid the money penalty on the basis of identity so that the punishment of professional negligence resulting in bodily injury against the payer does not run counter the principal of prohibition of Double jeopardy.

참고문헌 (23)

  1. 배종대, "신형사소송법" (2009), 홍문사
  2. 백형구, "형사소송법강의(제8정판)" (2001), 박영사
  3. 손기식, "교통형법(제4판)" (2008), 한국사법행정학회
  4. 신동운, "신형사소송법" (2008), 법문사
  5. 신양균, "형사소송법" (2009), 화산미디어
  6. 이은모, "형사소송법" (2010), 박영사
  7. 이재상, "신형사소송법" (2009), 박영사
  8. 임동규, "형사소송법(제6판)" (2010), 법문사
  9. 정영석, "형사소송법" (1997), 법문사
  10. 차용석, "형사소송법" (1997), 세영사
  11. 김명길, "行政罰의 法理 - 行政刑罰과 行政秩序罰의 병과를 중심으로 -", 법학연구, 49(2), pp.109~132 (2009), 법학연구소
  12. 김상헌, (1995), 박영사
  13. 김상희, "현행통고처분에 관한 일고찰", 인권과 정의, (217) (1994)
  14. 김성돈, "도로교통법상의 범칙금과 명칭사기", 비교형사법연구, (1) (1999)
  15. 김형준, "공소장변경의 필요성과 한계", 중앙법학, (2) (2000)
  16. 류석준, "교통신호위반죄와 신호위반으로 인한 업무상과실치상죄의 범죄사실의 동일성 여부", 형사법연구, 20(1), pp.283~301 (2008), 한국형사법학회
  17. 박길성, "신호준수의무를 불이행한 사실로 범칙금을 납부한 자에 대하여 신호위반으로 인한 업무상 과실치상을 범죄사실로 공소를 제기한 경우", 대법원판례해설, (70) (2007)
  18. 경범죄처벌법에 관한 연구, "박상기", 한국형사정책연구원, ~ (1996)
  19. 오영근, "조세범죄의 친고죄규정과 통고처분제도의 개선방안. in: 이수성선생화갑기년논문집" (2000), 동성사
  20. 임동규, "통고처분에 따른 범칙금납부의 효력", 고시계 (2004)
  21. 정우일, "우리나라 교통범칙금제도에 관한 논의", 한국경찰학회보, 11(4), pp.377~400 (2009), 한국경찰학회
  22. 최봉석, "行政制裁로서의 犯則金通告制度에 관한 一考", 토지공법연구, 16(1), pp.15~380 (2002), 한국토지공법학회
  23. 황일호, "즉결심판의 기판력에 대한 판례변경의 필요성", 중앙법학, 9(2), pp.273~292 (2007), 중앙법학회

관련 논문AI추천

이 간행물의 다른 논문 (10건)