[특정범죄가중처벌등에관한법률위반(도주차량),도로교통법위반][공1992.10.1.(929),2698]
Whether mitigation, etc. of mental or physical disorder may be granted in a case where a person causes a traffic accident by driving while drinking only after drinking with an intention to drive a drunk (negative)
Article 10(3) of the Criminal Act provides that "the preceding two paragraphs shall not apply to any act of a person who predicted the occurrence of danger and caused a person's mental disorder as a person." This provision includes not only the free act in the cause of intention but also the free act in the cause of negligence. Thus, even though it was possible to anticipate the occurrence of danger, it is also applicable to a case where a person caused a mental disorder as a result of his/her own act even though he/she had been able to anticipate the occurrence of danger. Thus, if the defendant caused a traffic accident after drinking with the intention to drive a drunk, if he/she caused a traffic accident after driving a motor vehicle, the defendant is a case where he/she predicted the risk of causing a traffic accident at the time of drinking, and thus,
Article 10(3) of the Criminal Act
Supreme Court Decision 68Do400 Decided April 30, 1968 (No. 16 ① type 50)
A
Defendant
Attorney B and one other
Seoul High Court Decision 91No5029 delivered on April 2, 1992
The judgment below is reversed and the case is remanded to Seoul High Court.
Defendant’s counsel’s grounds of appeal are examined.
1. According to the reasoning of the judgment below, the court below found the defendant guilty of the violation of Article 5-3 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and the violation of Article 107-2 subparagraph 1 of the Road Traffic Act as concurrent crimes. Since Article 5-3 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes has been decided by the Constitutional Court as of April 28, 1992, Article 5-3 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the above provision has retroactively lost its effect. Accordingly
2. On the other hand, the court below erred by applying Article 10(3) of the Criminal Act to the defendant's failure to reduce punishment due to mental disorder.
Article 10(3) of the Criminal Code provides that "the preceding two paragraphs shall not apply to any act of a person who predicted the occurrence of danger and caused a person's mental disorder as a person," which includes not only the free act in the cause of intention but also the free act in the cause of negligence, and it can be predicted that the occurrence of danger was caused by a person's mental disorder.
In the same purport, the judgment of the court below is just and there is no error in the misapprehension of legal principles as to this point, and there is no ground to hold that the defendant cannot reduce the amount of mental disorder pursuant to Article 10(3) of the Criminal Act, since the defendant's drinking alcohol only with a drinking intent to drive a drinking and caused a traffic accident as stated in its reasoning in this case, even though he predicted the risk of causing a traffic accident at the time of drinking, and thus, the defendant
3. Therefore, without examining the remaining grounds of appeal, we reverse and remand the judgment of the court below on the grounds indicated in the above Paragraph 1. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man (Presiding Justice)