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헌재 2017. 12. 28. 선고 2016헌바254 결정문 [도로교통법 제82조 제2항 제4호 위헌소원]
[결정문]
Cases

2016HunBa254 Road Traffic Act(Article 82(2)4)

Claimant

○○

Law Firm Sok, Attorney Sok

Attorney Yellow-gu et al., Counsel for the plaintiff-appellant

relevant case

Seoul Administrative Court 2016Guhap53753 Action Demanding revocation of Disposition rejecting Application for Examination

Date of Declaration

December 28, 2017

Text

Article 82 (2) 4 of the Road Traffic Act (Amended by Act No. 13458, Aug. 11, 2015) shall not violate the Constitution.

Reasons

1. Summary of the case;

A. On September 7, 2014, while driving a motor vehicle on September 7, 2014, the claimant took the victim’s left part of the part of the victim’s left part of the road, coming to the right side of the motor vehicle, beyond the direction of the right side of the motor vehicle. The claimant, by negligence on duty, did not immediately stop the victim, and take necessary measures, such as providing relief to the victim, even though he/she suffered a necessary injury for about three weeks of medical treatment.

On December 23 of the same year, the Daegu District Court was prosecuted for committing a crime that runs away as it is and sentenced to a fine of KRW 4 million (200,000) as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in the resident support of the Daegu District Court (2014 High Court 205), and the above judgment was finalized on the 31st of the same month.

B. On the other hand, on November 10, 2014, the Seoul Local Police Agency revoked the applicant’s driver’s license on the grounds that the claimant did not take necessary measures and report under Article 54(1) and (2) of the Road Traffic Act after killing or injuring a person due to a traffic accident.

C. On November 23, 2015, the applicant sought to accept the application for a driver’s license at the place of the Dowing Test under the jurisdiction of the Road Traffic Authority, but the Road Traffic Authority refused to accept the application on the ground that the applicant has not passed four years since the revocation date of the license, namely, the disqualified period for a driver’s license under Article 82(2)4 of the Road Traffic Act.

D. On February 5, 2016, the claimant filed a lawsuit seeking the revocation of the above rejection disposition (Seoul Administrative Court 2016Guhap53753), and filed an application for adjudication on the constitutionality of Article 82(2)4 of the Road Traffic Act during the proceeding of the lawsuit (Seoul Administrative Court 2016Guhap10194), but, on June 15, 2016, the petition for revocation of the above rejection disposition and the petition for adjudication on constitutionality were all dismissed, the claimant filed a constitutional complaint on June 24, 2016.

2. Object of adjudication;

The subject of the instant adjudication is whether Article 82(2)4 of the Road Traffic Act (amended by Act No. 13458, Aug. 11, 2015; hereinafter “Act”) (hereinafter “the subject of the instant adjudication”) violates the Constitution.

The details of the provisions and related provisions subject to adjudication shall be as follows:

【Provisions Subject to Adjudication】

Road Traffic Act (Amended by Act No. 13458, Aug. 11, 2015)

(2) No person who falls under any of the following cases shall obtain a driver's license unless the period prescribed in any of the following subparagraphs elapses: Provided, That where a punishment less than a fine becomes final or a judgment of suspended sentence becomes final on the grounds of the following subparagraphs, or where a decision of suspension of indictment or a decision of protective disposition under Article 32 of the Juvenile Act is made, a driver's license may be obtained even during the period prescribed in any of the following subparagraphs:

4. Where a person fails to take measures or report under Article 54 (1) and (2) after killing or injuring any other person on grounds other than those under Articles 43 through 46, four years from the date the driver's license is revoked;

[Related Provisions]

former Road Traffic Act (Amended by Act No. 10790, Jun. 8, 2011; Act No. 12343, Jan. 28, 2014)

(1) In the event that any traffic accident occurs, such as driving of a motor vehicle, etc. causes death or injury to any human being or damage to goods (hereinafter referred to as "traffic accident"), the driver and other crew members of the relevant motor vehicle (hereinafter referred to as "driver, etc.") shall immediately stop the motor vehicle and take necessary measures, such as providing assistance to casualties.

former Road Traffic Act (Amended by Act No. 10790, Jun. 8, 2011; Act No. 14356, Dec. 2, 2016)

(2) In cases falling under paragraph (1), the driver, etc. of the relevant motor vehicle shall be assigned to the police officer when the police officer is present at the scene, and to the nearest national police officer (including district police units, police boxes and branch offices; hereinafter the same shall apply) when the police officer is present at the scene

The matters shall be reported without delay: Provided, That the same shall not apply where it is evident that only a vehicle in operation has been damaged and measures necessary for preventing danger on the road and for smooth communication.

1. The place where an accident has occurred;

2. The number of casualties and degree of injury;

3. Items damaged and the extent of such damage;

4. Other measures, etc. taken.

3. The claimant's assertion;

A. The subject matter of adjudication does not distinguish the degree of damage or the degree of sentence if a necessary measure is not taken after killing or injuring a person due to a traffic accident, and uniformly prevents an applicant for a driver’s license test for four years without distinguishing the degree of damage or the degree of sentence. However, the purpose of legislation can be sufficiently achieved even if the final punishment is imprisonment or a fine is imposed, and the disqualified period of a driver’s license is separately determined depending on whether the relevant person is sentenced to imprisonment. As a driver is obliged to take relief measures through criminal punishment provisions, it is excessive to prevent the driver from acquiring a driver’s license for four years. Therefore, the subject matter of adjudication infringes on the applicant’s general freedom of action contrary to the excessive prohibition principle.

B. Even in cases where necessary measures and reports are not made after killing or injuring a person due to traffic accidents, the degree of illegality is essentially different depending on matters such as the degree of damage and severity of sentence. A clause subject to adjudication is dealing with both the escapeing vehicle driver who has caused death of a person, the escapeing vehicle driver who has been sentenced to imprisonment with prison labor by causing injury to the person, and the escape vehicle driver who has been sentenced to a fine by causing injury to the person, and is also in violation

4. Determination

(a) A system for disqualified period for acquisition of driver's licenses;

In order to ensure the safe and smooth flow of traffic by preventing and removing any danger to the lives or bodies of the people that occur in road traffic, drivers are required to have the responsibility awareness and safety awareness above a certain level of standards for the safety of road traffic and compliance with traffic regulations, and any person who fails to meet such requirements shall not obtain a driver's license to ensure the safety of road traffic.

Therefore, Article 82 (2) of the Act provides that the driver's license shall not be acquired for a certain period against a person who is judged to be unfit for driving in an objective and general manner by committing a serious traffic offense to cause danger to the life or body of the people or by committing an act which is highly likely to cause such danger.

(b) History and details of the provisions of the case subject to adjudication;

(1) History of the provision subject to adjudication

At the time when the Road Traffic Act was enacted by Act No. 941 on December 31, 1961, the Road Traffic Act only stipulates that a person in whose case one year has not passed from the date of the cancellation of the driver's license or who is subject to the disposition of the suspension of the driver's license shall not be eligible for the driver's license (Article 57 subparagraph 5), and there was no legal provision stipulating the disqualified period for the driver's license classified by type according

After that, when amended by Act No. 4872 of January 5, 1995, the requirements for the disqualified period of driver's license are subdivided and improved (Article 70(2)) and Article 70(2)3 of the Act provides that a person shall be punished by a fine or a heavier penalty for violating necessary measures and duty to report, after killing or injuring a person on the grounds other than non-license, drinking, or use of drug uniforms.

In the event that the driver's license of the person who was sentenced to the judgment is revoked, the current provision of the judgment and its form and contents are similar to those of the judgment.

The above provision was amended by Act No. 7545 on May 31, 2005 and added a common risk of driving, other than driving without a license, drinking, drug clothes, etc., on the grounds of exclusion from the whole amendment by Act No. 82(2)3. On June 8, 2011, the above provision was moved to No. 4 at the time of amendment by Act No. 10790 on June 8, 201.

(2) Details of the article to be tried

Articles 43 through 46 of the Act provide for non-licensed driving (Article 43), drunk driving (Article 44), driving under the influence of alcohol (Article 45), driving under the influence of overwork, disease, medicine, etc. (Article 45), and joint dangerous driving using more than two motor vehicles (Article 46). The provisions subject to adjudication shall apply to cases where persons are killed or injured by general driving without such reasons.

On the other hand, Article 54(1) and (2) of the Act requires that the same be violated at the same time. Therefore, even if the person performed relief measures pursuant to Article 54(1) of the Act, it does not constitute a provision subject to adjudication even if he/she violated the duty to report pursuant to Article 54(2). However, even if he/she violated the duty to report, it cannot be said that it falls under the provision subject to adjudication even

In addition, the disqualified period of a driver's license under the provisions to be tried shall be counted from the date the driver's license is revoked, so the driver's license should be revoked in violation of the duty to take measures after thought. Furthermore, even if the above requirements are met, a sentence below a fine is finalized, a judgment of suspended sentence becomes final, or a decision of suspension of indictment

(c) Restricted fundamental rights;

Since the clause in question is prohibited from obtaining a driver's license for a long period of four years from the cancellation date of the license, the freedom of general behavior is restricted.

On the other hand, the subject clause of adjudication has the effect of making it impossible to continue to maintain a certain occupation with respect to those who are essential elements for driving motor vehicles, etc. among them, or of making it impossible to select such occupation in the future. Therefore, even if the subject clause of adjudication does not directly restrict the freedom of the claimant's occupation, it is effective to restrict the freedom of occupation to those who are engaged in a certain occupation group, and therefore, it also needs to be examined as to whether it infringes on the freedom of occupation.

Although the claimant asserts that the clause violates the principle of equality, it is an excessive restriction to apply the clause to some of the several cases (for example, the driver of an escape vehicle who is sentenced to a fine as a result of an injury caused by a traffic accident) subject to the adjudication, so as to judge whether it infringes on the freedom of general action and freedom of occupation in light of the principle of excessive prohibition, it shall not be judged separately.

D. Whether general freedom of action and freedom of occupation are infringed

(1) The legitimacy of legislative purpose and the suitability of the means

In order to protect the lives and bodies of people and to secure public safety related to road traffic at the same time as a four-year disqualified period of driver's license, the subject clause of adjudication intends to achieve a precautionary effect in order to ensure the performance of obligation to take relief measures and obligation to report in the event of a traffic accident through strict sanctions such as protecting the lives and bodies of people and securing public safety related to road traffic by prohibiting a person who violates the duty to provide relief measures and obligation to report

The legislative purpose is legitimate and the suitability of the means is also recognized (see Constitutional Court Decision 2004HunBa65, Apr. 28, 2005).

(2) The minimum of the infringement

In light of its nature, the driving of motor vehicles, etc. has the risk of undermining the lives, bodies, and property of citizens and public safety. Accordingly, in order to acquire a driver's license that can be engaged in driving motor vehicles, it is required as a basic qualification to observe the traffic-related laws and regulations and the attitude of responsibility at the time of the occurrence of an accident. However, it is difficult to evaluate whether such awareness and attitude are appropriate through a driver's license test. Therefore, the evaluation of whether a driver's license is satisfied should be conducted by excluding those who expressed that they did not meet such qualification from traffic control among those who acquire a driver's license and actually participate in driving (see Constitutional Court Decision 2004Hun-Ba65, Apr. 28, 2005).

In addition, the subject clause of adjudication forms part of the qualification system as grounds for disqualification of driver's license. It is not easy to consider the individual nature and characteristics of the person who intends to obtain a driver's license in the same condition according to certain standards in reality. Therefore, it is inevitable to uniformly regulate to a certain extent.

Meanwhile, Article 82(2) of the Act provides for different periods of license disqualification from one to five years according to the contents of the illegal act specified in each subparagraph along with the provision subject to adjudication (see, e.g., Constitutional Court Decision 2005Hun-Ma1107, Dec. 27, 2007); and Article 82(2) of the Act provides for the revocation of driver’s license and the determination of a fine or heavier punishment by an administrative agency even in cases where a person violates relief measures and duty to report after thought.

Therefore, the Act provides that the violation of the duty to take relief measures or duty to report after thought shall be a reason for voluntary revocation of a driver's license (Article 93(1)6), and the Enforcement Rule of the Act provides that the driver's license shall be imposed without cancelling the driver's license when a voluntary report is filed within a certain period of time (Article 91(1) and attached Table 28). Thus, where the commissioner of a district police agency, who is an administrative agency, issues a disposition to suspend a driver's license, taking into account the driver's voluntary report, it shall not fall under the subject of adjudication, and the case where the prosecutor in charge of individual cases suspends the prosecution, or where the court decides a protective disposition under the Juvenile Act, takes into account the fact that the judgment of suspension of sentence or a protective disposition under the Juvenile Act does not meet the requirements of Article 93(1)6, the relevant legal provisions including the subject of adjudication, including the subject of adjudication, may also be considered in terms of the individual nature of the specific case (see Constitutional Court Decision 2005HunBa6564, Apr. 28, 20005).

In full view of these circumstances, the clause to be tried does not violate the minimum principle of infringement.

(3) Balance of legal interests

The driving of motor vehicles always has the risk of causing serious harm to the lives and bodies of citizens, and in order to prevent such danger from realizing, the State takes various preventive measures in advance and after death. In particular, providing relief to victims in the event of occurrence of human damage by causing a traffic accident and reporting to a police office constitutes a fundamental duty imposed by the Road Traffic Act as an act to protect the lives and bodies of citizens and to ensure the safety of traffic. Such a driver’s basic duty violates the basic duty of the driver.

The public interest of the clause in the adjudication is very serious (see Constitutional Court Decision 2004HunBa65, Apr. 28, 2005) in order to ensure public safety by prohibiting a person who has caused danger and injury to traffic from continuing to participate in traffic and to achieve preventive effects that restrain such act.

Examining the number of accidents, the number of accidents, the number of injured and the number of accidents, the number of accidents, and the number of injured and the number of accidents that deviate from the duty to rescue after traffic accidents, 23,410 cases (198), the number of dead and wounded (1996), the number of injured and 811 persons (196), the number of injured and 31,386 persons (2001) were recorded in the last half of 1980s. However, the number of accidents in the main body of the accident after traffic accidents is rapidly decreasing before and after 200, 9,513 cases in 200, the number of dead and 157 cases in 200, the number of injured and 14,38 persons in 19, the number of injured and the number of injured and the number of injured. Considering the increase in the number of automobiles from 200 to 20,000 to 100,000 rubber as a result, the number of these increases is more.

This is presumed due to the following: (a) the subdivided and rearrangement of the disqualified period of driver’s license in 1995 and strengthening punishment and sanctions for traffic accidents; (b) the enhancement of awareness of rescue measures and duty to report through various campaignss; and (c) the arrest rate has sharply increased due to the development of various visual equipment, such as vision and black boxes, and the development of investigation techniques (from 31.7% in 190 to 96.4% in 2015). Therefore, the probability that the provision subject to adjudication contributes to the achievement of the above important public interest can also be sufficiently recognized.

On the other hand, the subject clause of adjudication provides for the disqualification of a driver's license for four years as a legal effect, which not only limits the freedom of general behavior to drive a motor vehicle, but also causes deprivation of occupation to a person who performs an occupation which requires a resolution not to drive a motor vehicle. This is meaningful to restrict the means of living of the person in question.

Therefore, it cannot be said that there is little influence on private interest.

However, since an occupation consisting of a non-exclusive driver’s license is an occupation that is ordinarily in charge of driving automobiles, etc., if a person falling under the clause subject to adjudication newly acquires a driver’s license or continues to engage in the previous occupation, the effect on public safety is greater than that on other occupations. Therefore, in cases where a person meeting the requirements of the clause subject to adjudication intends to newly acquire such occupation in the future or to continue to maintain the previous occupation, the necessity for exclusion from traffic intervention or the public interest is greater than that on other drivers. Therefore, the restriction of fundamental rights under the provision subject to adjudication may be deemed to exist, beyond the extent corresponding to the limited private interest (see, e.g., Constitutional Court Decision 2004Hun-Ba65, Apr. 28, 2005).

In full view of the above, it is true that the private interest restricted by the provision of the object to be tried is not easy, but the public interest that can be achieved by restricting such private interest is also serious. Therefore, the provision of the object to be tried also complies with the principle of balance of legal interests.

(4) Sub-determination

Therefore, the clause can not be said to infringe on the freedom of general behavior and the freedom of occupation.

5. Conclusion

Therefore, the clause to be tried is not in violation of the Constitution, and it is so decided as per Disposition. This decision is in accordance with the assent of all participating Justices, except there is a dissenting opinion of the Justice Lee Jae-soo and Justice Min Nam-Nam as of June below.

6. Dissenting Opinion by Justice Lee Dong-soo and Justice Kim Yong-Nam

We do not have a theory that, even if a traffic accident intrudes another person's life or body, and thereby, a person who has violated the driver's duty to rescue the victim and remove traffic danger and injury shall continue to be involved in traffic, thereby protecting the lives and bodies of the people and securing public safety related to road traffic. However, even if the purpose can be achieved by means of less cutting off the disqualified period of driver's license or limiting the basic rights, such as allowing an administrative agency to take discretionary measures within a certain period of time, the clause prescribing the disqualified period of driver's license uniformly violates the Constitution by infringing on the freedom of occupation and freedom of general action, and thus, I express my dissenting opinion as follows.

A. If the legislators decided to impose an administrative sanction within the legislative discretion, determination of the degree or period of such sanction also belongs to the legislative discretion. However, if it is remarkably unreasonable or arbitrary exercise of legislative discretion, such as in violation of the excessive prohibition principle or the evaluation of violation of the equality principle between other violators and other violators, it would be beyond the legislative discretion (see, e.g., Constitutional Court Decision 2007Hun-Ga22, Mar. 26, 2009).

Article 43 through 46 of the Act provides that a person may not obtain a driver's license for four years from the date the driver's license is revoked if he/she fails to take necessary relief measures or to report after killing or injuring any other person on grounds other than grounds under Articles 43 through 46 of the Act. Thus, even if he/she fails to take necessary relief measures or to report after killing or injuring any other person due to a traffic accident, the form of such act is very diverse and the degree of infringement of legal interests (traffic safety and safety of the victim) is broad. First, Article 82(2)1 proviso and 3 of the Act is broad.

When driving without a license (Article 43) or driving under the influence of alcohol (Article 44), driving under the influence of drugs (Article 45), etc. (Article 45), and driving under the joint risk (Article 46) with respect to the necessary relief measures and failure to report after killing or injuring any person due to an illegal act. In such a case, the illegal act of a driver who killed or injured a person due to a traffic accident and the risks of traffic safety resulting therefrom are serious and standardized. However, the subject matter of adjudication covers all the cases where a person is killed or injured for reasons other than driving without a license, driving under the influence of alcohol or drugs, and driving under the influence of a person due to reasons other than joint driving under the influence of a motor vehicle accident, the form of the act causing a traffic accident, the degree of illegal act, and the degree of risk of traffic safety resulting therefrom, but it is not distinguished.

Even if it is necessary to impose administrative sanctions that restrict the acquisition of a driver's license for an act of not taking necessary relief measures and reporting after killing or injuring a person due to the tension of traffic safety, the purpose can be sufficiently achieved in such a way as to further simplify the disqualified period for a driver's license corresponding to the illegal act and liability of the driver, or to restrict the administrative agency's discretionary disposition within a certain period of time, by taking into account all the circumstances, such as the form of the act causing a traffic accident, the degree of illegality, the degree of risk caused by the illegal act, and whether a penalty imposed is imprisonment or a fine.

However, the clause subject to adjudication provides that a driver’s license shall not be acquired for a period of four years only if it falls under the requirements, thereby significantly reducing the room for considering the degree of risk to traffic safety resulting from the illegal act committed in a specific case. This is difficult to impose sanctions corresponding to the degree of responsibility for a specific offense, which leads to a case where the act of breach of duty and sanctions against the act of violation of duty significantly lose balance. This also violates the equity among the violators.

result in the result.

Article 93(1)6 of the Enforcement Rule of the Act provides for a disqualified period of a driver's license as a requirement for the cancellation of a driver's license, and the violation of a duty to take relief measures or duty to report after thought constitutes a reason for voluntary revocation of a driver's license (Article 93(1)6 of the Act), but the Enforcement Rule of the Act, in principle, cancels a driver's license, but imposes a driver's license only when he/she files a voluntary report within a certain period of time without cancelling the driver's license (Article 91(1) and attached Table 28 of the Enforcement Rule of the Act). According to the current Act and subordinate statutes, the driver's license is revoked

If so, without making efforts to achieve the legislative purpose by less than the degree of infringement of fundamental rights, the clause on the subject of adjudication, which stipulates the period of four-year disqualified under the law immediately, violates the minimum principle of infringement.

B. In the modern society, motor vehicle driving is not limited to a tool that enables prompt movement, but is an indispensable means of living to expand the area of all activities of individuals to function as a human being. A clause to be tried is to prevent a license necessary to operate a motor vehicle, which is an essential means in the modern society, home, and economic life, from acquiring a license, and to restrict the freedom of occupation and of general behavior, and, inasmuch as the disqualified period for not obtaining a license is four years, a citizen who directly uses a motor vehicle as a means to directly operate a motor vehicle, is subject to a prolonged restriction to the extent that it would cause trouble to his/her livelihood.

In the event of infringing on another person's life or body due to a traffic accident, the person who has violated the driver's duty to rescue the victim and to eliminate traffic danger and injury shall be prohibited from continuing to participate in traffic, thereby protecting the lives and bodies of the people and securing public safety related to road traffic.

Although there is no framework for the most important public interest, to prevent an individual who runs a business by driving a motor vehicle from obtaining a long-term driver’s license due to the occurrence of a serious hazard to his/her livelihood, and such infringement of private interests cannot be deemed to be negligible. A clause subject to adjudication does not take into account the form of an act causing a traffic accident, the degree of illegality, the degree of risk to traffic safety resulting therefrom, and the degree of seriousness of the imposed punishment for various offenses, without considering the individual nature and characteristics of the specific case, thereby preventing the acquisition of a driver’s license for four years uniformly even if the degree of illegality and the degree of infringement of public interest is considerably low. This is contrary to the principle of balance of legal interests.

C. Ultimately, the clause subject to adjudication is in violation of the Constitution because it violates the principle of excessive prohibition, thereby infringing on the freedom of occupation and the freedom of general action.

Judges

Justices Lee Jin-bok

Justices Kim Jong-soo

Justices Kim Chang-soo

Military Justice Cho Chang-ho

Justices Kang Jong-won

Clerks' Office

Justices Cho Yong-ho

Justices Lee Lee-soo

Military Justice Jo Nam-nam