일본 형법상 위험운전치사상죄의 제문제 (Several Problems regarding the Fatal Driving Style Penalty in Japanese Criminal Law)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 32권 / 1호 / 5 ~ 32페이지
· 저자명 : 김형준

초록

In Japan, because the people who caused fatal accidents by driving while intoxicated could have had only been sentenced around 3 years, it had been criticized largely. Finally, in 2001, the fatal driving style penalty, which focuses on heavily punishing the people who cause fatal accidents by driving dangerously and riskily, was created under the penal code 208-2. According to this, the offender who fatally harms a person can be sentenced up to 15 years, more than a year up to 20 years for fatally killing and up to 30 years for the chain offender.
However, this penalty has several problems applying and explaining legislation.
Firstly, because it does not target all the risky driving styles but the few such as drunk driving, there is definitely unfairness between them.
Secondly, because when the offender kills a person he does not do it intentionally, charging him with murdering or injuring a person cannot really be agreed with 'Schuldprinzip' and should be charged with weaker penalty.
Thirdly, Japanese courts do not blame the one being chain offender consequently for the entire consequences and it completes a fundamental offense even for the result that was not anticipated thereby adding difficulty for ranging fundamental offence.
Fourthly, the risky driving styles with no intention to murder or harm are being charged with murdering and injuring, sometimes with even heavier charges. Moreover, two offenders with the same driving style can be charged differently depending on the case, again bringing unfairness.
Lastly, because this penalty looks for a standard which requires value judgment such as ‘unable to drive properly’, there has been an unbalance between the courts due to giving different explanations.
All these problems can be used to implicate the application of Korean fatal driving style penalty which started in 2007.

영어초록

In Japan, because the people who caused fatal accidents by driving while intoxicated could have had only been sentenced around 3 years, it had been criticized largely. Finally, in 2001, the fatal driving style penalty, which focuses on heavily punishing the people who cause fatal accidents by driving dangerously and riskily, was created under the penal code 208-2. According to this, the offender who fatally harms a person can be sentenced up to 15 years, more than a year up to 20 years for fatally killing and up to 30 years for the chain offender.
However, this penalty has several problems applying and explaining legislation.
Firstly, because it does not target all the risky driving styles but the few such as drunk driving, there is definitely unfairness between them.
Secondly, because when the offender kills a person he does not do it intentionally, charging him with murdering or injuring a person cannot really be agreed with 'Schuldprinzip' and should be charged with weaker penalty.
Thirdly, Japanese courts do not blame the one being chain offender consequently for the entire consequences and it completes a fundamental offense even for the result that was not anticipated thereby adding difficulty for ranging fundamental offence.
Fourthly, the risky driving styles with no intention to murder or harm are being charged with murdering and injuring, sometimes with even heavier charges. Moreover, two offenders with the same driving style can be charged differently depending on the case, again bringing unfairness.
Lastly, because this penalty looks for a standard which requires value judgment such as ‘unable to drive properly’, there has been an unbalance between the courts due to giving different explanations.
All these problems can be used to implicate the application of Korean fatal driving style penalty which started in 2007.

참고자료

· 없음