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대법원 2007. 4. 13. 선고 2007도1405 판결

[특정범죄가중처벌등에관한법률위반(도주차량)·도로교통법위반][미간행]

Main Issues

[1] The degree of injury for the establishment of a crime of escape driving under Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[2] Whether the crime under Article 106 of the former Road Traffic Act is intentional (affirmative) and the purpose of Article 50 (1) of the former Road Traffic Act and the degree of measures to be taken by the accident driver

[Reference Provisions]

[1] Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 257 (1) of the Criminal Act / [2] Article 50 (1) (see current Article 54 (1)) and Article 106 (see current Article 148) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005)

Reference Cases

[1] Supreme Court Decision 97Do2396 delivered on December 12, 1997 (Gong1998Sang, 361), Supreme Court Decision 99Do3910 delivered on February 25, 200 (Gong2000Sang, 893) / [2] Supreme Court Decision 91Do253 delivered on June 14, 1991 (Gong1991, 1972), Supreme Court Decision 93Do49 delivered on May 11, 1993 (Gong193Ha, 1751 delivered on November 26, 1993), Supreme Court Decision 93Do2346 delivered on November 26, 193 (Gong194, 227) and Supreme Court Decision 94Do3919 delivered on September 24, 195 (Gong194, 194Do19394 delivered on September 194, 1994).

Escopics

Defendant

upper and high-ranking persons

Prosecutor

Judgment of the lower court

Gwangju District Court Decision 2006No927 Decided January 18, 2007

Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined.

Article 5-3 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to the case where the driver of an accident does not take measures under Article 50 (1) of the Road Traffic Act such as aiding and abetting the victim, but does not take measures under Article 50 (1) of the Road Traffic Act, such as aiding and abetting the victim despite the awareness of the fact that the victim was killed and injured, resulting in a state in which the identity of the person who caused the accident cannot be confirmed because he/she escaped from the scene of the accident before performing his/her duty under Article 50 (1) of the Road Traffic Act, such as aiding and abetting the victim. Thus, the crime of escape in order for the crime of escape to be established shall result in the victim. The mere danger to life and body is limited, or annoying, to the extent that it cannot be assessed as "injury" under Article 257 (1) of the Criminal Act, and thus it is difficult to deem that the crime is not established (see Supreme Court Decision 97Do2396, Dec. 12, 1997).

In addition, the crime under Article 106 of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005, hereinafter the same) established when a person in charge of the act violates Article 50 (1) of the same Act is also an intentional crime that requires recognition of the fact of killing or injuring a person or destroying an article as in the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes as in the case of a driver and other crew members who killed or damaged a person or damaged an article due to the traffic of a vehicle (see, e.g., Supreme Court Decisions 91Do253, Jun. 14, 1991; 93Do49, May 11, 1993). The purpose of Article 50 (1) of the former Road Traffic Act is to prevent and remove traffic danger and ensure safe and smooth traffic on the road, not to recover physical damage to the victim. In this case, the degree of the driver's actions should be taken at the site of 196.3.44.

In light of the above legal principles and records, the court below acknowledged the facts as stated in its judgment, and judged that it is difficult to view that the victim, the non-indicted victim, etc. suffered minor injuries to the extent that they cannot be evaluated as "injury" in the crime of injury, and thus, it was necessary to take relief measures, etc., and that there was a need to take measures to ensure safe and smooth traffic by preventing and removing traffic risks and obstacles in various circumstances after the accident. Accordingly, the court below acquitted the defendant of the facts charged in this case as to the violation of the rules of evidence, and there is no error of law such as misconception of facts, incomplete deliberation, or misapprehension of legal principles as alleged in the grounds for appeal

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)

따름판례

- 대법원 2008. 10. 9. 선고 2008도3078 판결 공보불게재

관련문헌

- 서형주 상해 개념의 인정 범위 : '극히 경미한 상처(상해)'를 중심으로 . 재판실무연구 2010 / 서울남부지방법원 2010

참조판례

- [1] 대법원 1997. 12. 12. 선고 97도2396 판결

- 대법원 2000. 2. 25. 선고 99도3910 판결

- [2] 대법원 1991. 6. 14. 선고 91도253 판결

- 대법원 1993. 5. 11. 선고 93도49 판결

- 대법원 1993. 11. 26. 선고 93도2346 판결

- 대법원 1995. 1. 24. 선고 94도2691 판결

- 대법원 1998. 3. 24. 선고 98도34 판결

- 대법원 1999. 11. 12. 선고 99도3140 판결 (변경)

참조조문

- [1] 특정범죄 가중처벌 등에 관한 법률 제5조의3 제1항 (위헌조문)

- 형법 제257조 제1항 (위헌조문)

- [2] 도로교통법(구) 제50조 제1항

- 도로교통법 제54조 제1항 (위헌조문)

- 도로교통법(구) 제106조

- 도로교통법 제148조 (위헌조문)

본문참조판례

대법원 1997. 12. 12. 선고 97도2396 판결

대법원 1991. 6. 14. 선고 91도253 판결

1993. 5. 11. 선고 93도49 판결

대법원 1993. 11. 26. 선고 93도2346 판결

1995. 1. 24. 선고 94도2691 판결

1998. 3. 24. 선고 98도34 판결

본문참조조문

- 특정범죄 가중처벌 등에 관한 법률 제5조의3 제1항

- 도로교통법 제50조 제1항

- 형법 제257조 제1항

- 도로교통법(구) 제50조 제1항

- 도로교통법(구) 제106조

원심판결

- 광주지법 2007. 1. 18. 선고 2006노927 판결