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The judgment of the court below is reversed.
The prosecution of this case is dismissed.
Reasons
1. The gist of the grounds of appeal is that the crime of this case cannot be prosecuted against the clearly expressed will of the victim. The defendant submitted a written agreement with the victim, which states that the victim would not be punished, prior to the pronouncement of the original judgment, the prosecution of this case shall be dismissed.
Nevertheless, the court below found the Defendant guilty of the facts charged of this case. The court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.
2. Determination
A. The proviso of Article 4(1)2 of the Act on Special Cases Concerning the Settlement of Traffic Accidents stipulates that the special provision on punishment for cases where a victim purchases an insurance policy or a mutual aid agreement under the main sentence of Article 4(1) does not apply to the case where the victim's bodily injury has caused danger to his/her life or has caused a incurable or incurable disease. On the other hand, Article 3(2) of the same Act provides that the crime of injury by occupational negligence caused by traffic of a vehicle shall be a crime of non-compliance with intent, but does not stipulate that "the victim has caused danger to his/her life or has caused a incurable or incurable disease" as the exception to the crime of non-compliance with intent.
In light of the above relevant provisions, in a case where the driver of a vehicle commits a crime of injury by occupational negligence due to a traffic accident and the victim suffers a danger of life or a imprisony or incurable disease, the driver of the vehicle can be punished regardless of whether the vehicle which caused the traffic accident is covered by the insurance or mutual aid under Article 4(1) of the Act on Special Cases Concerning the Settlement of Traffic Accidents. However, even in such a case, the crime of injury by occupational negligence due to traffic of the vehicle is still an offense of failing to prosecute the victim against the explicit will of the victim.
B. The instant case.