1. Restriction on Right to Prosecute Offenders of Traffic Accidents Causing Serious Injury Case

[21-1(A) KCCR 156, 2005Hun-Ma764, 2008Hun-Ma118 (consolidated), February 26, 2009]

Questions Presented

1.Whether the portion of the main sentence of Article 4 Section 1 of the Act on Special Cases Concerning the Settlement of Traffic Accidents which provides that a driver who commits a crime by inflicting bodily injury through negligence in driver's duties or gross negligence in traffic accidents shall not be prosecuted (hereinafter, the "Instant Provision") violates the victim's right to make a statement during proceedings of a trial.

2.Whether the Instant Provision violates the right to equality of traffic accident victims

3.Whether the Instant Provision violates the state's duty to protect people's basic rights of traffic accident victims

4.Whether precedents holding Article 4 Section 1 of the former Act on Special Cases Concerning the Settlement of Traffic Accidents constitutional was overruled

Summary of the Decision

A. 1. In case the traffic accident victim suffers serious injury due to negligence in driver's duties or gross negligence

The Instant Provision, given the increase in the number of cars and self-driving, intends to encourage drivers to subscribe to general insurance and thereby cover the damage of traffic accident victims promptly and adequately as well as to prevent the increase in the number of repeat offenders involved in traffic accidents. This serves the legitimate purpose and satisfies the suitability of the means

In case the victim's life is endangered, or the victim becomes disabled or develops intractable or incurable diseases resulting from a

traffic accident, that is, when there is an infliction of severe injury (refer to Article 258 Sections 1 and 2 of the Criminal Act), various actions such as summary indictment or stay of prosecution other than regular prosecution should be also available depending on the causes of accident, particularity of the victim (elderly, etc.), whether the victim is responsible for negligence and, if so, the degree thereof. However, nevertheless providing unconditional immunity to drivers for having subscribed to general insurance, etc. unless applicable to the Proviso of Article 3 Section 2, Act on Special Cases Concerning the Settlement of Traffic Accidents (hereinafter, "the Proviso") violates the rule of the least restrictive means.

The traffic accident rate in Korea is very high compared to other OECD members, and it is hard to find laws in advanced countries that prevent the filing of prosecution against the drivers responsible for accidents just because their cars are insured. The offenders are likely to think lightly of the violation of traffic regulations and neglect the duty of safe driving. It is also undeniable that, even in traffic accidents involving serious injury, drivers tend to place the responsibility of accident management, such as payment of insurance money, on the insurance company and not take sufficient care for the actual recovery of the damage inflicted on the victim. Given all the above, the fact that a seriously-injured victim is fundamentally prevented from exercising his/her right to make a statement during proceedings of a trial in accordance with the Instant Provision undermines the balance of interests as public interests - prompt management of traffic accidents and prevention of the rise in the number of recidivists - are being upheld at the great expense of the victim's private interests.

Therefore, the Instant Provision violates the rule against excessive restriction and infringes on the right to make a statement of the victim who suffered severe injury in a traffic accident caused by negligence in driver's duties or gross negligence.

2.In case the traffic accident victim suffers non-serious injury due to negligence in driver's duties or gross negligence

However, with respect to cases where the driver at fault is exempt

from prosecution for subscribing to general insurance, etc. in case the traffic accident concerned leads just to non-serious injury as provided by the Instant Provision, there is a great level of balance between the public interest pursued by the provision, herein to foster prompt recovery of traffic accident damages and to promote convenience of the public, and the victim's right to make a statement during proceedings of a trial that is violated by the provision. Also, considering that drivers causing traffic accidents not applicable to the Proviso are mostly not highly likely to be accused for neglect of care and that there is a global tendency for countries around the world not to impose criminal punishment on offenders of small traffic accidents, the Instant Provision serves the legitimate purpose, adequate means, least restrictive means and balance of interests and is thus not in violation of the rule against excessive restriction.

B.1.In the event of traffic accident victim suffers serious injury due to negligence in driver's duties or gross negligence

The discrimination between the severely-injured victims of traffic accidents inapplicable to the Proviso and the severely-injured victims and dead victims involved in accidents applicable to the Proviso will determine whether the victim's constitutional right to statement can be exercised depending on whether the drivers responsible for traffic accidents are prosecuted. As this discriminatory treatment consequently poses a major restriction to the exercise of basic rights, a strict standard of review shall be applied.

In this case, a severely injured victim of a traffic accident not applicable to the Proviso will not be able to exercise any right to make a statement during criminal proceedings of a trial because of an incidental circumstance that the type of traffic accident he/she was involved in was not applicable to the Proviso. This, in contrast with an also incidental happenstance that a severely-injured victim involved in a traffic accident applicable to the Proviso is entitled to exercise his/her right to make a statement during proceedings of a trial, amounts to discrimination without reasonable grounds.

Yet, in the case of victims who fall into a vegetative state or have to endure severe disability or incurable diseases for lifetime as a result

of serious injury, the resulting illegitimacy would by no means be smaller than that caused by a traffic accident leading to death. Therefore, the restriction of the victim's right to make a statement during proceedings of a trial by not prosecuting the driver responsible for inflicting serious injury is, unlike when the traffic accident results in death, as good as discrimination without reasonable grounds.

Therefore, the distinguished treatment of the exercise of the right to statement depending on whether the type of the traffic accident applies to the Proviso or not would infringe on the equality rights of victims who suffered serious injury from accidents not applicable to the Proviso.

2.In the event of traffic accident victim suffers non-serious injury due to negligence in driver's duties or gross negligence

In case a traffic accident simply results in the victim's minor injury instead of a serious one by negligence in driver's duties or gross negligence, there is legitimate reason to differentiate the minor-injury case from one involving serious injury in the exercise of the right to statement as mentioned above. Therefore, such discrimination is not in conflict with the principle of equality in protecting the victims and penalizing the responsible drivers.

C.The state's duty of protection of life and personal safety is fulfilled through a mixture of various preliminary and ex post facto measures, including, in the case of traffic offenders, not only the punishment of violation by negligence related to traffic accidents but also the overhaul of overall traffic regulations such as those related to obtaining driving licenses, continued enlightenment and education for the public, maintenance and expansion of traffic safety facilities and compensation system for traffic accident victims. In this case, criminal punishment is just one of many effective and appropriate measures available to the state but cannot be an ultimate and only way to protect legal interests. Therefore, the Instant Provision does not appear to violate the principle of prohibition of insufficient protection.

D.The decision of 90Hun-Ma110 etc. (January 16, 1997) that,

unlike the ruling of this case, found Article 4 Section 1 of the former Act on Special Cases Concerning the Settlement of Traffic Accidents (later revised by Act No. 3744, Aug. 4, 1984 and Act No. 5480, Aug. 30, 1997) not unconstitutional shall be overruled to the extent that it is contrary to the decision of this case.

Dissenting Opinion of Justice Cho Dae-hyen and Justice Min Hyeong-ki

1.In a precedent to this case, "90Hun-Ka110·136 (consolidated), the Constitutional Court ruled on January 16, 1997 that Article 4 Section 1 of the former Act on Special Traffic Accident Cases is not in violation of the Constitution. This conclusion appears to be legitimate and lack the conditions or necessity for overruling.

2.The legislative purpose of the Instant Provision is to promote prompt recovery of damage caused by traffic accidents and convenience of the public by inducing drivers to subscribe to general insurance, etc. and, as another major objective, to allow the avoidance of criminal punishment in case the responsible driver did not commit gross negligence. It cannot be denied that it is an appropriate means to serve the legislative purpose to prohibit the prosecution of drivers in case they have subscribed to general insurance, etc. unless they violate major duty applicable to the Proviso.

If the scope of punishment through filing of prosecution of the driver responsible for a traffic accident is expanded as the majority opinion holds, it is not unlikely that other big and small consequences such as the victim pressuring the responsible driver to pay more compensation while threatening punishment may occur although the driver, subscribing to general insurance, etc., already has a warranty against the estimated, overall damage. In addition, although a seriously-injured victim of a traffic accident inapplicable to the Proviso is given the right to statement in trial proceedings, this in practice would hardly guarantee the recovery of damage except for satisfying the victim's grudges. It is better advised to manage prompt recovery of damage from traffic accidents through civil means, particularly

through coverage of general insurance, etc., instead of through criminal punishment of responsible drivers. In this sense, it is speculated that the movement to expand the scope of criminal punishment of traffic accident offenders is against the trend of the times that separates criminal and civil responsibilities while stressing the latter.

3.If a driver can be prosecuted for inflicting serious injury even if the traffic accident concerned is not applicable to the Proviso as stated by the majority opinion, it would be difficult to decide clearly whether the degree of injury is severe. Also, because the degree of injury from a traffic accident is not proportionate to the level of the driver's negligence but varies by incidental circumstances such as age, sex, part of injury and physical particularity, it would be difficult to secure the predictability and consistency of law application.

4.The right of the victim to make statements presupposes the filing of prosecution of the offender, so the traffic accident victim who has received an order of non-prosecution for reasons of having general insurance, etc. should be considered as not having the right to statement. Therefore, restricting indictment requirements by preventing the filing of prosecution in case the driver has general insurance, etc. does not necessarily violate the victim's right to make statements.

--------------------------------------

Parties

Complainants

1. Cho ○-joo (2005Hun-Ma764)

Court-appointed counsel: Moon Han-shik

2. Song ○-moon and one other (2008Hun-Ma118)

Representative: Sekwang Law Firm

Attorney in charge: Choi Kyu-ho

Holding

The portion of the main sentence of Article 4 Section 1 of the Act on Special Cases Concerning the Settlement of Traffic Accidents (revised by Act No. 6891 on May 29, 2003) which provides that a driver who commits a crime by inflicting bodily injury through negligence in driver's duties or gross negligence in traffic accidents shall not be prosecuted is in violation of the Constitution.

Reasoning

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

1. 2005Hun-Ma764

The complainant is a university student who, while crossing the three-lane road in front of unit E of Tower Palace located in 467 Dogok-Dong, Gangnam-Gu, Seoul on September 5, 2004 at 12:59, was hit by the left front fender and windshield of a car driven by Lee ○-joo and suffered closed fracture of the cranial vault requiring 12 months of treatment, etc. Since the accident, the complainant has suffered from severe side effects, including hemiparesis and facial paralysis, which eventually led him to quit school as well.

The prosecutor in charge of the accident found on December 13, 2004 that, pursuant to Article 4 Section 1 of the Act on Special Cases Concerning the Settlement of Traffic Accidents, the offender cannot be prosecuted. In response, the complainant filed this constitutional complaint on August 16, 2005, arguing that the said provision violates the principle of prohibition of insufficient protection, right to equality, and the right to make a statement during proceedings of a trial.

2. 2008Hun-Ma118

The complainant Song ○-moon was driving his Sonata along thethree-lane road from Chuncheon-Si to Daegu-Si direction at the 271.2 kmpoint of Central Expressway located in Pojeon-Ri, Geumseong-Myeon, Jecheon-Si on December 14, 2007 at around 12:50 p.m. with his wife Hwang ○-hee, his friend who is one of the complainants, Kim ○-kyung, and Kim's wife Jung ○-shin in the car, when the trailing Son ○-won driving a five-ton truck rear-ended the Sonata by drowsy driving. As a result, Hwang ○-hee and Jung ○-shin both died from open mandibular fracture or skull fracture, complainant Song ○-moon suffered from herniated disc in neck, parietal scalp laceration, etc., and complainant Kim ○-kyung suffered from rib fracture, multiple scalp laceration, etc. Since the accident, the complainants have sustained severe aftereffects such as post-traumatic stress syndrome or insomnia.

The prosecutor in charge, according to Article 4 Section 1 of the Act on Special Cases Concerning the Settlement of Traffic Accidents, found on December 28, 2007 that it was impossible to prosecute the responsible driver (arrest and prosecution for causing death was executed on the same day), and the complainants filed the constitutional complaint in this case on January 24, 2008, arguing that the said provision violates the principle of prohibition of insufficient protection, right to equality, and the right to make a statement during proceedings of a trial.

B. Subject Matter of Review

1.The subject matter of review is whether the portion of the main sentence of Article 4 Section 1 of the Act on Special Cases Concerning the Settlement of Traffic Accidents (revised by Act No. 6891, May 29, 2003, hereinafter "Act on Special Traffic Accident Cases") which stipulates that a driver who commits a crime by inflicting bodily injury through driving or gross negligence (excluding the crime prescribed by Article 151, Road Traffic Act) shall not be prosecuted (hereinafter, the "Instant Provision") violates the complainants' basic rights.

2.While explicitly challenging the constitutionality of the entire Instant Provision, the complainants contest that the portion of the

provision which stipulates that "a driver who commits a crime by inflicting bodily injury through gross negligence of crimes relating to traffic accidents" is in violation of their basic rights, such as the right to make a statement during proceedings of a trial.

However, Article 268 of the Criminal Act cited in Article 3 Section 1 of the Act on Special Traffic Accident Cases Act provides that "A person who causes the death or injury of another by negligence in driver's duties or gross negligence, shall be punished by imprisonment for not more than five years or by a fine not exceeding twenty million won", which does not distinguish the negligence in driver's duties from gross negligence. In addition, the main sentence of Article 3 Section 2 of the Act on Special Traffic Accident Cases stipulates that "Due to traffic of vehicles, a driver who commits a crime by inflicting bodily injury through negligence in driver's duties or gross negligence of crimes relating to traffic accidents mentioned in Section 1 …… shall not be prosecuted against the express will of the victim", thereby enumerating the negligence in driver's duties and gross negligence together. Under the regulations of the Criminal Act, it does neither appear that gross negligence is fixed as an aggravated condition to the negligence in driver's duties nor that the degree of the two types of negligence is deemed markedly different. Therefore, the entire Instant Provision that prevents prosecution of drivers inflicting injury by negligence in driver's duties or gross negligence will be subjected to review in this case.

3.The text of subject provision of review and relevant provisions are as follows:

[Subject Provision of Review]

Act On Special Cases Concerning The Settlement Of Traffic Accidents (revised by Act No. 6891, May 29, 2003)

Article 4 (Special Cases concerning Insurance Coverage, etc.)

(1) In case where a vehicle which has caused a traffic accident, is covered by insurance or mutual aid association in accordance with the provisions of Articles 4 Insurance Business Act and 126 through 128 of the Insurance Business Act, Article 8 of the Land Transportation Promotion Act, or Article 51 of the Trucking Transport Business Act,

the driver who commits a crime provided in main sentence of Article 3 (2) shall not be prosecuted: Provided, That this shall not apply in case falling under the Proviso of Article 3 (2), or in cases where the insurer or mutual aid manager is not liable to pay the amount insured or mutual aid money because of the contract of insurance or mutual aid being null and void or rescinded for the future or an exemption clause of the contract.

[Relevant Provisions]

Act on Special Cases Concerning the Settlement of Traffic Accidents (later revised by Act No. 6891, May 29, 2003; Act No. 7545, May 31, 2005)

Article 3 (Special Cases concerning Punishment)

(1) A driver of a vehicle who commits a crime provided in Article 268 of the Criminal Act by reason of a traffic accident shall be punished by imprisonment without prison labor for not more than five years or by a fine not exceeding 20 million won.

(2) Due to traffic of vehicles, a driver who commits a crime by inflicting bodily injury through negligence in driver's duties or gross negligence of crimes relating to traffic accidents mentioned in Section 1 or a crime of Article 151 of the Road Traffic Act shall not be prosecuted against the express will of the victim: Provided, That this shall not apply in cases where a driver of a vehicle who commits a crime of inflicting bodily injury through negligence in driver's duties or gross negligence of crimes relating to traffic accidents mentioned in Section 1, leaves the scene of an accident without taking measures including those necessary to render aid to a victim provided in Article 54 (1) of the Road Traffic Act or leaves the scene of the accident after moving the victim from the site of an accident and abandoning the victim, and in cases where a driver of a vehicle commits such crime caused by an act falling under any of the following subparagraphs:

1. In case of operating a vehicle in violation of signals provided in Article 5 of the Road Traffic Act, signals given by a traffic policemen or other directions of safety signals for prohibition of traffic or temporary suspension;

2. In case of crossing a median line of the road in violation of the

provisions of Article 13 (3) of the Road Traffic Act, or of crossing, making U-turns or driving backward in violation of the provisions of Article 62 of the same Act;

3. In case of operating a vehicle in excess of the speed limit by 20 kilometers or more per hour as provided in Article 17 (1) or (2) of the Road Traffic Act;

4. In case of operating a vehicle in violation of the methods, time of prohibition and location of prohibition of passing or prohibition of intervening as provided in Article 21 (1), Articles 22 and, 23 Article 60 (2) of the Road Traffic Act;

5. In case of operating a vehicle in violation of the method of passing a crossing provided in Article 24 of the Road Traffic Act;

6. In case of operating a vehicle by neglecting to observe the duty of protecting pedestrians on a crosswalk as provided in Article 27 (1) of the Road Traffic Act;

7. In case of operating of a vehicle without obtaining a driver's license or a construction machinery operating license or without holding an international driver's license in violation of the provisions of Article 43 (1) of the Road Traffic Act, Article 26 of the Construction Machinery Management Act, or Article 96 of the Road Traffic Act. In such cases, the case of suspension of a driver's license or a construction machinery operating license or the case of prohibition of operation of a vehicle shall be regarded as not having obtained a driver's license or a construction machinery operating license or not holding an international driver's license;

8. In case of operating a vehicle while under the influence of alcohol in violation of the provisions of Article 44 (1) of the Road Traffic Act or while normal operation is deemed difficult due to influence of drugs in violation of the provisions of Article 45 of the Road Traffic Act;

9. In case of operating a vehicle upon a sidewalk in violation of Article 13 (1) of the Road Traffic Act or in violation of the method of crossing sidewalks as provided in Article 13 (2) of the same Act;

10. In case of operating a vehicle in violation of the obligation on preventing passengers from falling off as provided in Article 39 (2) of the Road Traffic Act;

Article 258 (Aggravated Bodily Injury on Other or on Lineal Ascendant)

(1) A person who inflicts bodily injury upon another, thereby endangering one's life, shall be punished by imprisonment for not less than one year or more than ten years.

(2) The preceding section shall apply to a person who, in consequence of injuring another, causes one to be crippled or incurably or hopelessly diseased.

Article 268 (Death and Injury by Negligence in Driver's Duties or Gross Negligence)

A person who causes the death or injury of another by negligence in driver's duties or gross negligence, shall be punished by imprisonment for not more than five years or by a fine not exceeding twenty million won.

II. Arguments of Complainants and Relevant Authorities

(intentionally omitted)

III. Review on Justiciability Requirements

A. Self-relatedness, Presentness and Directness

The Instant Provision provides that, with the exception of the accident specified in the Proviso of Article 3 Section 2 of the Act on Special Traffic Accident Cases (hereinafter, the "Proviso"), the driver who commits a crime provided in the main sentence of Article 3 Section 2 of the Act shall not be prosecuted in case where a vehicle which has caused a traffic accident is covered by insurance or mutual aid association (hereinafter, "general insurance, etc.") in accordance with the provisions of Articles 4 and 126 through 128 of the Insurance Business Act, Article 8 of the Land Transportation Promotion Act or Article 36 of the Trucking Transport Business Act. Consequently, the prosecutor's office ordered non-prosecution for the driver at fault, which results from automatic application of the Instant Provision without discretion, and therefore all three requirements for

justiciability of the complaint - whether the alleged infringement of a basic right is self-related, indicating the relatedness to ones' own rights, present at the time of the complaint and not merely a potential of future infringement, and whether the infringement is a direct consequence of the challenged provision(hereinafter, "self-relatedness, presentness, and directness") - are fulfilled.

B. Justiciable Interest

1.Article 47 Section 2 of the Constitutional Court Act provides that "Any statute or provision thereof decided as unconstitutional shall lose its effect from the day on which the decision is made: Provided, That the statutes or provisions thereof relating to criminal penalties shall lose their effect retroactively". However, as the Instant Provision provides for exceptional cases exempt from punishment although it concerns criminal penalties, recognizing the retroactive effect of the decision ruling the provision unconstitutional would rather bring criminal disadvantage to those who had previously not been subjected to criminal punishment pursuant to the provision. For this reason, including the exceptional cases of the Proviso also in the application scope of the Proviso of Article 47 Section 2 of the Constitutional Court Act contradicts the purpose of the Proviso as the inclusion greatly harms legal stability and legitimate expectation of the already exempted offenders, which is contrary to the original purpose of the provision.

Since the retroactive effect of the decision that rules the Instant Provision unconstitutional is not acknowledged, the non-prosecution order for offenders cannot be cancelled and they are thus unpunishable. Therefore, the complaint in this case does not meet the subjective justiciable interest.

2.Yet, a constitutional complaint not only functions as a subjective legal remedy for individuals but also as a objective safeguard of the constitutional order. Therefore, even if it does not contribute to the subjective redemption of rights, the legitimate interest sought from the complaint may be acknowledged as justiciable in case the infringement concerned is likely to repeat itself or the resolution of the dispute

concerned is critical to the protection and preservation of the constitutional order and thus involves huge constitutional significance. In that sense, if a constitutional resolution is not made for reasons of lacking subjective justiciable interest even when the Instant Provision appears unconstitutional, traffic accident victims will not be able to file a constitutional complaint in the future, and it is a cause for concern that the disposition of non-prosecution may be ordered repeatedly based on an unconstitutional provision. Therefore, it is necessary to acknowledge exceptional justiciable interest in review of the Instant Provision.

IV. Review on Merits

A. Relevant Basic Rights

The issue of this case is whether the Instant Provision infringes on the complainants' right to make a statement during proceedings of a trial, the right to equality, and the state's duty to protect life and personal safety of citizens. In judging whether each of the basic rights has been infringed, the following two categories will be applied: cases where the victims suffered severe injury in accidents caused by driving or gross negligence and those where the victim did not.

B. Violation of the Right to Make a Statement in Proceedings

1.Cases involving severe injury caused by negligence in driver's duties or gross negligence

Under the current criminal procedure system which fully excludes the possibility of private prosecution, such as those by victims, and gives prosecutors the exclusive right to criminal prosecution, the victim's right to make a statement in the proceedings of a criminal case as prescribed by Article 27 Section 5 of the Constitution offers the victim an opportunity to make a statement in a criminal case in addition to testifying at a criminal proceeding involving this case, thereby protecting the right to statement as a basic right in order to

obtain the procedural adequacy of the criminal justice(see1 KCCR 31, 37, 88Hun-Ma3, Apr. 17, 1989; 5-1 KCCR 121, 129, 92Hun-Ma48, Mar. 11, 1993, etc.).

In case the victim's life is endangered, or the victim becomes disabled or develops intractable or incurable diseases resulting from a traffic accident, that is, when there is an infliction of severe injury (refer to Article 258 Sections 1 and 2 of the Criminal Act), and yet the traffic accident concerned is not applicable to the Proviso, the prosecutor has no choice but to order non-prosecution for the driver at fault as the Instant Provision provides for automatic exclusion of the responsible driver from prosecution. In this case, the victim who suffered serious injury may lose one's normal basis of living, such as losing one's job or quitting one's study, and greatly suffer physically and psychologically for having to live with disability or suffer from diseases during his lifetime, and the mental and financial suffering that the family members and surrounding persons of the victim have to undergo are so enormous as to be comparable to that of the victim's death. Nevertheless, the Instant Provision takes away even the opportunity to make a statement concerning the aforementioned damage at the criminal proceeding.

Therefore, it will be reviewed whether the exemption of the driver from prosecution for the victims' serious injury caused by negligence in driver's duties or gross negligence as provided in the Instant Provision violates the rule against excessive restriction and thus the right to make a statement during proceedings of a trial.

(A) Legitimate purpose and suitable means

The purpose of this Act is to facilitate a prompt recovery of damages caused by traffic accidents and to promote convenience for people's everyday life by providing special cases on criminal punishment for drivers involved in traffic accidents through negligence in driver's duties or gross negligence (Article 1, Act on Special Cases Concerning the Settlement of Traffic Accidents).

In particular, the Instant Provision, given the increase in the number of cars and self-driving, intends to encourage drivers to subscribe to general insurance and thereby cover the damage of traffic accident

victims promptly and adequately as well as to prevent the increase in the number of repeat offenders involved in traffic accidents, which serves the legitimate purpose. In addition, considering that the general car insurance subscription rate increased steadily to 87 percent of the total number of registered cars and that the rate of prosecution for traffic accident cases as of 2005 was a mere 34.2 percent, the Instant Provision is found to have served the legislative purpose and therefore also satisfies the suitability of the means.

(B) The least restrictive means and balance of interest

However, even in cases involving serious injury from a traffic accident, various actions such as summary indictment or stay of prosecution other than regular prosecution are also available depending on the causes of accident, particularity of the victim (elderly, etc.), whether the victim is responsible for negligence and, if so, the degree thereof. Also, the victims are entitled to the right to make a statement during proceedings of a trial in case of regular prosecution, but nevertheless providing unconditional immunity to drivers for having subscribed to general insurance, etc. unless applicable to the Proviso is in violation of the rule of the least restrictive means.

Meanwhile, various statistics indicate that the traffic accident rate in Korea is very high even for international standards. As of 2004, among OECD countries, Korea ranked sixth with 459.1 following Japan (745.7), United States (647), Austria (521.8), Canada (437.3), and Belgium (468.2) in the number of traffic accidents per 100,000 population. Korea topped the list in terms of the number of traffic accidents per 100,000 cars with 119.3 and also in terms the rate of death while walking in traffic accidents at 39.3 percent ("Comparison of Traffic Accidents among OECD Countries", Road Traffic Authority, 2006).

Despite such a serious traffic accident rate, offenders of traffic accidents are unconditionally exempt from criminal punishment unless the accident leads to death or is applicable to the Proviso. Yet, it is hard to find laws in advanced countries that prevent the filing of prosecution against the drivers responsible for accidents just because their cars are insured. In addition, since most of the relevant parties

to a traffic accident tend to resolve issues by informing only the insurance companies of the accident and not reporting it to the police, there is a marked gap between the statistics of insurance companies and that of the police, and some still maintain that the number of traffic accidents is rising even as we speak.

Unless in violation of the negligence prescribed by the Proviso, the offender may avoid punishment by subscribing to general insurance, etc. and therefore think lightly of the violation of traffic regulations and neglect the duty of safe driving. It is also undeniable that, even in traffic accidents involving serious injury, drivers tend to place the responsibility of accident management, such as payment of insurance money, on the insurance company and not take sufficient care for the actual recovery of the damage inflicted on the victim.

In that sense, as the victim who suffered serious injury is fundamentally prevented from exercising his/her right to make a statement during proceedings of a trial as prescribed by the Instant Provision, the public interest - prompt management of traffic accidents and prevention of the rise in the number of recidivists - is being upheld at the great expense of the victim's private interest. Therefore, this undermines the balance of interests.

2. Infliction of non-serious injury by negligence in driver's duties or gross negligence

However, with respect to cases where the driver at fault is exempt from prosecution for subscribing to general insurance, etc. in case the traffic accident concerned leads just to non-serious injury as provided by the Instant Provision, there is a great level of balance between the public interest pursued by the provision, herein to foster prompt recovery of traffic accident damages and to promote convenience of the public, and the victim's right to make a statement during proceedings of a trial that is violated by the provision. Also, considering that drivers causing traffic accidents not applicable to the Proviso are mostly not highly likely to be accused for neglect of care and that there is a global tendency for countries around the world not to impose criminal punishment on offenders of small traffic accidents, the Instant Provision serves the legitimate purpose, adequate means,

least restrictive means and balance of interests and is thus not in violation of the rule against excessive restriction or rule of proportionality.

3. Sub-conclusion

Therefore, the Instant Provision is found to have violated the rule against excessive restriction and thus infringed on the right to statement of a severely-injured victim involved in a traffic accident caused by negligence in driver's duties or gross negligence.

C. Infringement of Equality Rights

Discrimination occurs in the exercise of victims' rights to make a statement during proceedings of a trial according to whether the traffic accident concerned lead to death and whether it is applicable to the Proviso, and it is at issue whether such discrimination can be constitutionally justified.

1. Cases involving serious injury caused by negligence in driver's duties or gross negligence

It shall be reviewed whether it is in violation of the equality right to discriminate against those who suffered serious injury in an accident inapplicable to the Proviso in the exercise of the victim's right to make a statement during proceedings of a trial.

(A) Standard of Review

The rational standard is applied in general when judging the legitimacy of the discrimination. However, in cases where the Constitution particularly requires equality or where discriminatory treatment leads to significant restriction on the relevant basic rights, the right to legislation will be reduced and, therefore, a strict standard of review will be applied (11-2 KCCR 771, 787-789, 98Hun-Ma363, December 23, 1999; 11-2 KCCR 732, 749, 98Hun-Ba33, December 23, 1999; 12-2 KCCR 167, 181, 97Hun-Ka12, August 31, 2000).

As the rational standard only reviews if there are reasonable grounds for discrimination, the review extends no further than finding and confirming the factual differences or legislative purpose (purpose of discrimination) between comparable cases. In case of proportionality review, however, not only the reasonableness but also the correlation between the reason for justifying discrimination and the discrimination itself will be reviewed. In other words, the proportionality review will be focused on whether the adequate level of balance is met between the nature and extent of the factual difference between the comparable cases or the significance and extent of discrimination of the legislative, or discriminatory purpose (13-1 KCCR 386, 403, 2000Hun-Ma25, February 22, 2001)

The people's right to life and personal safety is the premise of all basic rights and immediately relates to the dignity of human beings, so it is appropriate that a stricter review is imposed to see if there is proportionality between the legislative purpose and discrimination, instead of simply identifying whether the discrimination against victims involved in accidents applicable to the Proviso as opposed to accidents inapplicable to the Proviso as well as those leading to death was arbitrary. Also, whether the victim's constitutional right to statement can be exercised is determined by whether the drivers responsible for traffic accidents are prosecuted, which consequently poses a major restriction to the exercise of basic rights. Therefore, in this case, a strict standard of review will be applied with reference to the precedents which have changed since the decisions of cases such as 90Hun-Ma110 (January 16, 1997).

(B) Review

Pursuant to the Instant Provision, even in cases where the victim is seriously injured in a traffic accident, whether the offender will be prosecuted depends on what type of duty the responsible driver violated. In other words, accountable drivers will be prosecuted in the case of traffic accidents applicable to the Proviso and, in the case of accidents not applicable to the Proviso, will be exempted from prosecution on condition of subscription to general insurance, etc. In this case, a severely injured victim of a traffic accident not applicable

to the Proviso will not be able to exercise any right to make a statement during criminal proceedings of a trial merely because of an incidental circumstance that the type of traffic accident he/she was involved in was not applicable to the Proviso. This, in contrast with an also incidental happenstance that a severly-injured victim involved in a traffic accident applicable to the Proviso is entitled to exercise his/her right to make a statement during proceedings of a trial, amounts to discrimination without reasonable grounds.

At the same time, the Act on Special Traffic Accident Cases provides that a person who causes death of another by negligence in driver's duties or gross negligence shall be prosecuted regardless of whether or not the accident is applicable to the Proviso (refer to Article 3 Section 1, Act on Special Traffic Accident Cases and Article 268, Criminal Act), which is due to the huge illegal nature of the invasion of the right to life irrespective of the degree or type of the neglect of duty on the part of those related to the accident. Yet, even the victims who fall into a vegetative state or have to endure severe disability or incurable diseases for lifetime as a result of serious injury do not have their right to life violated but suffer a comparable physical and mental pain.

As normal life consequently becomes impossible, the mental and financial problems of people around them, including their families, would also be inconceivable, and the resulting illegitimacy would by no means be smaller than that caused by an accident leading to death. Therefore, the restriction of the victim's right to make a statement during proceedings of a trial by not prosecuting the driver responsible for inflicting serious injury is, unlike when the traffic accident results in death, as good as discrimination without reasonable grounds.

Also, the discrimination among the severely injured victims and that between the seriously injured and the dead victims as mentioned above tantamount to a distinguished treatment of the exercise of the right to statement depending solely on whether the type of an accident applies to the Proviso irrespective of the extent of duty violation and the resulting degree of illegitimacy. In this sense, even in light of the legislative purpose of the Instant Provision to promptly recover damages, it is difficult to say that appropriate balance is reached in the degree of discrimination.

2. Cases involving non-serious injury by negligence in driver's duties or gross negligence

In case a traffic accident simply results in the victim's minor injury instead of a serious one by negligence in driver's duties or gross negligence, for the same reason stated in the aforementioned (2) of B, there is legitimate reason to differentiate the minor-injury case from one involving serious injury in the exercise of the right to statement. Therefore, such discrimination is not in conflict with the principle of equality in terms of protecting victims and penalizing the responsible drivers.

3. Sub-conclusion

Distinct treatment in the exercise of the right to statement - discrimination between the victims who suffer from serious injury resulting from accidents not applicable to the Proviso and the severely-injured victims and dead victims involved in accidents applicable to the Proviso - would violate the equality rights of victims suffering from serious injury caused by traffic accidents not applicable to the Proviso.

D. Violation of the Duty to Protect Basic Rights

1. Significance and standard of review

The duty for protection of basic rights refers to the state's duty to protect people's legal interest as part of the basic rights from illegal violation or the risk thereof by private persons entitled to basic rights, and problems mostly stem from the damage done to life or body of individuals by third parties who are mostly private persons. In this case, such a duty for protection of basic rights applies only when legal interests, such as body or life of individuals, become irrelevant without the state's obligation for protection.

In this case, the issue is whether the state has to employ the ultimate measure of criminal punishment in order to most efficiently

protect the right to life and personal liberty of the people despite other protective measures that prevent traffic accidents. If the state abandoned its authority over criminal punishment although it is the only way to most efficiently protect legal interests, the state would have, by violating its duty for protection of basic rights, infringed on major basic rights of the complainants such as the life and personal safety.

Although the state takes responsibility for protecting people's life and personal safety, the issue of how the legislators or their authorized executioners will fulfill their state duty for protection, in principle, falls under the scope of responsibility of legislators who are, according to the principle of separation of powers and democracy, given the democratic legitimacy directly by the people and hold political responsibility for their own decisions. Therefore, the Constitutional Court can review, to just a limited extent, whether the duty of protection by legislators or their designated executioners has been fulfilled (9-1 KCCR 90, 121, 90Hun-Ma110, etc., January 16, 1997; 142 KCCR 1146, 1149, 2006Hun-Ma711, July 31, 2007).

For this reason, when reviewing whether the state fulfilled its duty to protect people's life and personal safety, the Constitutional Court can, according to whether the state at least took the minimum protective measure that is appropriate and efficient - compliance with the rule against excessive restriction - find the state to have violated its protective duty limited to cases in which the state did not take any protective measure despite the need for one to protect people's life and safety or in which the measure taken by the state was entirely inadequate or evidently insufficient for protecting legal interests (9-1 KCCR 90, 122, 90Hun-Ma110, etc., January 16, 1997).

2. Violation of the principle against excessive non-protection

The state's duty of protection of life and personal safety is fulfilled through a mixture of various preliminary and ex post facto measures, including not only the punishment of violation by negligence related to traffic accidents but also the overhaul of overall traffic regulations such as those related to obtaining driving licenses, continuous enlightenment and education for the public, maintenance and expansion

of traffic safety facilities and compensation system for traffic accident victims. In this case, the issue is whether the state has to take the ultimate measure of criminal punishment despite other protective measures that can prevent traffic accidents in order to protect the right to life and personal liberty most efficiently. In case criminal punishment is the most efficient and only way to protect legal interests, the state abandoning its power over criminal punishment would violate its duty of protection.

However, expansion of the scope of the state's authority over criminal punishment of offenders who committed traffic-related negligence does not immediately lead to clear and efficient protection of legal interests. Even when considering the general preventive and deterrence effect of criminal punishment, the effect of criminal punishment to protect the legal interests of life and personal safety is not very clear, and, in this case, criminal punishment is just one of many viable and appropriate means available to the state, not the final and sole means to protect legal interests effectively and appropriately.

3.Therefore, as for the Instant Provision, it is not that the state did not take any measure to appropriately and effectively protect the life and body of the people from the overall danger of road traffic by not exercising the authority over criminal punishment for certain crimes related to traffic accidents, neither that the state evidently violated its duty of protection as its existing measures are clearly inadequate or insufficient.

V. Conclusion

For the aforementioned reasons, the portion of the Instant Provision that prevents prosecution of drivers who inflict serious injury by causing traffic accidents due to negligence in drivers' duties or gross negligence infringes on the complainants' right to make a statement during proceedings of a trial and equality rights, and is thus unconstitutional. In that sense, it shall be ruled as follows: the decision of 90Hun-Ma110 (January 16, 1997), etc. that, unlike the ruling of this case, found Article 4 Section 1 of the former Act on Special Cases Concerning the Settlement of Traffic Accidents (later

amended by Act No. 3744, Aug. 4, 1984 and Act No. 5480, Aug. 30, 1997) not unconstitutional shall be overruled to the extent that it is contrary to the decision of this case, and hence the holding.

This decision was agreed by all Justices other than Justice Cho Dae-hyen and Justice Min Hyeong-ki who stated dissenting opinions holding the Instant Provision constitutional as in the VI. below.

VI. Dissenting Opinion of Justice Cho Dae-hyen and Justice Min Hyeong-ki

We believe that, unlike the majority opinion, the Instant Provision appears not to be in violation of the Constitution and state the following opinion:

A.In a precedent to this case, "90Hun-Ka110·136 (consolidated), a constitutional complaint over Article 4, Act on Special Cases Concerning the Settlement of Traffic Accidents, etc., the Constitutional Court ruled on January 16, 1997 that Article 4 Section 1 of the former Act on Special Traffic Accident Cases does not violate the equality right, the right to make a statement during proceedings of a trial and the state's duty to protect basic rights, and therefore that the provision is not in violation of the Constitution. This conclusion appears to be legitimate and lack the conditions or necessity for modification, so the rationale for the decision shall be quoted in this case in its entirety, except that, this aside, the following reasons will be added.

B.The Act on Special Traffic Accident Cases, taking into account that driving is an essential part of daily life, has been enacted with the purpose of promoting prompt recovery of damage caused by traffic accidents and convenience of the public by inducing drivers to subscribe to general insurance, etc. However, the legislative purpose of the Act, although not explicitly specified, includes a secondary yet important objective - allowing the avoidance of criminal punishment in case the responsible driver did not commit gross negligence, and this is as significant as the recovery of damage since all citizens are

potential offenders and victims of traffic accidents.

Of the aforementioned two legislative purposes of the Act, prompt and reliable recovery of damage for traffic accident victims should admittedly be given priority, which means it is not necessary to punish the responsible drivers within the given scope in case there is substantial and sufficient recovery of damage caused by traffic accidents inapplicable to the Proviso of the Act or when the victim does not wish for the responsible driver to be punished. Therefore, as far as the accountable driver does not violate major duty of care equivalent to those specified in the Proviso, preventing the prosecution of drivers subscribing to general insurance, etc. is an appropriate means to achieve the aforementioned legislative purpose.

On the contrary, as the majority opinion holds, if the scope of punishment through filing of prosecution of the driver responsible for a traffic accident is expanded, this may pose strong psychological pressure on the driver and therefore make him/her more committed to the recovery of damage of victims for reduction in punishment. Yet, it cannot be immediately concluded that the recovery of damage is, in general, more smooth and prompt. Rather, it is not unlikely that other big and small consequences may take place, such as the victim pressuring the responsible driver to pay more compensation while threatening punishment although the driver, subscribing to general insurance, etc., already has a warranty against the estimated, overall damage.

Also, even if the seriously-injured victim involved in a traffic accident not applicable to the Proviso is guaranteed the right to make a statement during proceedings of a trial, the statement would consist of a plea for generous order if the victim has received compensation, whereas the victim who has not will mostly complain of such circumstances and appeal for strict punishment. In that sense, the protection of the victim's right to statement in practice would not easily guarantee the recovery of damage except for satisfying the victim's grudges.

Eventually, unless for other special circumstances, it is better advised to manage prompt recovery of damage from traffic accidents through civil means, particularly through coverage of general insurance, etc., instead of through criminal punishment of responsible drivers that

appears to be a separate matter. For prompt and full recovery of damage of victims, it is undoubtedly critical that institutional rearrangement to extend the warranty against the victim's damage take place, such as raise in the insurance premium, remedies to the extra premium system for vehicles involved in traffic accidents and practicalization of the insurance money payment.

Nevertheless, attempting to expand the scope of criminal punishment of traffic accident offenders when there is victim's explicit intention of punishment or by allowing prosecution of offenders despite their subscription to general insurance, etc. in case of serious injury caused by a traffic accident caused by driver's or gross negligence as prescribed by Article 4 Section 1 of the Act on Special Traffic Accident Cases, which is what the majority opinion indicates, is against the aforementioned needs. Therefore, it is speculated that such measure provided in Article 4 Section 1 of the Act on Special Traffic Accident Cases is one that runs counter to the trend of the times that separates criminal and civil responsibilities while stressing the latter.

C.Also, in order to serve the abovementioned legislative purpose of the Act on Special Traffic Accident Cases, the requirements for filing of prosecution should be clear. If a driver can be prosecuted for inflicting serious injury even if the traffic accident concerned is not applicable to the Proviso as stated by the majority opinion, it would be difficult for the driver or the police to decide clearly whether the degree of injury is serious enough to qualify for prosecution when the victim is greatly injured from a traffic accident. Also, because the degree of injury from a traffic accident is not proportionate to the level of the driver's negligence but varies by incidental circumstances such as age, sex, part of injury and physical particularity, the investigation agency will be able to decide whether they will prosecute the offender only after the investigation and doctor's examination on the existence of negligence and its degree, and, even after the filing of the prosecution, legal assessment of the serious injury may eventually differ according to the opinion of judges.

After all, whether the requirement for filing prosecution of responsible drivers has been met will depend on the judgment of the prosecutors in charge and be finalized only after the completion of

criminal procedures, and it would thus be difficult to secure the predictability and consistency of law application.

D.A criminal victim can make a statement during proceedings of the relevant case as provided by law (Article 27 Section 5, Constitution); the court has to admit the victim as witness for examination upon receiving a petition by the victim of a crime (Article 294-2 Section 1, Criminal Procedure Act); and the court shall, whenever it examines a victim, give the victim an opportunity to make a statement on the degree and result of damage, his/her opinion concerning punishment of the defendant and other matters relating to the case at bar (Article 294-2 Section 2, Criminal Procedure Act). However, such right of the victim to make statements presupposes the filing of prosecution of the offender, so the traffic accident victim who has received an order of non-prosecution for reasons of having general insurance, etc. should be considered as not having the right to statement, in which case it would be impossible to demand the investigation agency to file prosecution just to guarantee the victim's right to statement.

Therefore, restricting indictment requirements by preventing the filing of prosecution in case the driver has general insurance, etc. does not necessarily violate the victim's right to make statements.

E.Therefore, the Instant Provision is not in violation of the Constitution.

Justice Lee Kang-kook(Presiding Justice), Lee Kong-hyun, Cho Dae-hyen, Kim Hee-ok, Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan