[특정범죄가중처벌등에관한법률위반(위험운전치사상)·도로교통법위반(음주운전)][공2008하,1723]
The relationship between "the crime of death or injury caused by the dangerous driving" under the Act on the Aggravated Punishment, etc. of Specific Crimes and "the crime of the drunk driving" under the Road Traffic Act (=the
Since the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to drinking and the crime of violation of the Road Traffic Act are separate crimes that differ in the legislative purpose, legal interest and application scope, both crimes are in substantive concurrent relations.
Articles 44 (1) and (4), 150 subparagraph 1 of the Road Traffic Act, and Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes
Defendant
Prosecutor
Seoul Northern District Court Decision 2008No577 decided July 22, 2008
The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.
1. Article 44 (1) of the Road Traffic Act provides that "no person shall drive a motor vehicle, etc. (including construction machinery other than construction machinery under the proviso of Article 26 (1) of the Construction Machinery Management Act) under the influence of alcohol, and Article 44 (4) of the same Act provides that "the standard in the state of under the influence of alcohol prohibited from driving pursuant to the provisions of paragraph (1) shall be at least 0.05% of blood alcohol level." Article 150 subparagraph 1 of the same Act provides that "any person who drives a motor vehicle, etc. under the influence of alcohol shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won." Meanwhile, Article 5-11 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that "any person who causes injury to another person by driving a motor vehicle (including a motorcycle) under the influence of alcohol or drugs shall be punished by imprisonment for not more than 10 years or by a fine not less than 5 million won but not more than one year, and any person who causes death shall be punished by imprisonment for not less than one year."
The original purpose of the Road Traffic Act is to ensure the safe and smooth flow of traffic by preventing and removing traffic risks and obstacles on roads (Article 1 of the Road Traffic Act), and only the act of driving motor vehicles on roads for many and unspecified persons or for the passage of motor vehicles and horses is subject to the Act, and traffic in places other than roads is not subject to the Act (Article 2 subparag. 1 and subparag. 24 of the Road Traffic Act). On the other hand, in light of the legislative intent and text of the Act on the Aggravated Punishment, etc. of Specific Crimes due to Drinking, the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Dangerous Driving) due to drinking is an empty traffic accident due to driving of motor vehicles in the main state, and it is not possible or easy to recover in the state prior to the occurrence of the accident, taking into account the circumstances such as the fact that it is impossible or difficult to recover in the state prior to the occurrence of the accident, thereby protecting personal legal interests and interests of the victim as well as the scope of the application of the motor vehicles.
On the other hand, the crime of violation of the Road Traffic Act is punishable for the act of driving a motor vehicle under the influence of alcohol by setting the criteria for recognizing the condition of driving a motor vehicle under the influence of alcohol by a uniform numerical value of at least 0.05%. In the case of driving a motor vehicle under the influence of alcohol in excess of the minimum level of alcohol level of the blood alcohol level, regardless of whether it is difficult for a driver to drive the motor vehicle under the normal condition of driving. This is intended to prevent and eliminate traffic risks and obstacles caused by driving in the state of driving on the road and ensure safe and smooth driving of the motor vehicle. On the other hand, unlike the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against the Aggravated Punishment, etc. of Specific Crimes by drinking, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the death or injury caused by drinking), unlike the case of the crime of violation of the Road Traffic Act, the act of driving under the influence of a driver under the influence of the minimum level of alcohol level due to his/her death or injury caused his/her death.
As above, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to drinking and the crime of violation of the Road Traffic Act are separate crimes with different legal interests and interests, and both crimes are established.
On the other hand, the court below held that the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to drinking constitutes a crime of violation of the Road Traffic Act (the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes) on the Aggravated Punishment, etc. of Specific Crimes (the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes) on the grounds that the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes includes both types of act and protected legal interest and protection of law.
The ground of appeal pointing this out is with merit.
2. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)