신호위반 범칙금을 납부한 자에 대한업무상 과실치상죄로의 처벌가능성 - 대상판결: 대법원 2007. 4. 12. 선고 2006도4322판결 - (The possibility of the punishment of professional negligence resulting in bodily injury againstthe payer who paid a signal ticket penalty)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 34권 / 2호 / 119 ~ 140페이지
· 저자명 : 김형준, 옥별

초록

The court ruling showed that the punishment of professional negligence resulting in bodily injury against to the payer who caused the traffic accident, received notice(Notification Disposition) and paid the penalty does not run counter to the prohibition of Double jeopardy of the Road Traffic Act. There are, however, differences of opinion on an improper judgment. There statement is based on placing the act of a traffic violation and the act of professional negligence in the same category.
I consider that the court's decision is valid eventhough that is not perfectly logical.
First, the court's ruling should be imposed on crimes, and once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. Therefore, avoiding punishment on the basis of the res judicata for the illegal act without the court's decision is not valid.
Stretching the scope of the objects that are not able to be punished to 'the crime' on the basis of the clause runs counter appropriate interpreting because the clause of the Road Traffic Act stated that the scope of an illegal act is defined for the payer who paid money penalty already and can avoid of punishment Second, the certain illegal act is the crime by the Road Traffic Act, but where there is a payer who received notice and paid the penalty, the penalty means the administrative punishment. Thus, multiply imposition the criminal penalty on the administrative punishment does not run counter the principal of prohibition of Double jeopardy.
Third, as the consequence of professional negligence resulting in bodily injury occurred with closely connected with time and place in the case of the court ruling, I admit that basic fact is equal. However, it is not valid to apply the res judicata for the payer who paid the money penalty on the basis of identity so that the punishment of professional negligence resulting in bodily injury against the payer does not run counter the principal of prohibition of Double jeopardy.

영어초록

The court ruling showed that the punishment of professional negligence resulting in bodily injury against to the payer who caused the traffic accident, received notice(Notification Disposition) and paid the penalty does not run counter to the prohibition of Double jeopardy of the Road Traffic Act. There are, however, differences of opinion on an improper judgment. There statement is based on placing the act of a traffic violation and the act of professional negligence in the same category.
I consider that the court's decision is valid eventhough that is not perfectly logical.
First, the court's ruling should be imposed on crimes, and once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. Therefore, avoiding punishment on the basis of the res judicata for the illegal act without the court's decision is not valid.
Stretching the scope of the objects that are not able to be punished to 'the crime' on the basis of the clause runs counter appropriate interpreting because the clause of the Road Traffic Act stated that the scope of an illegal act is defined for the payer who paid money penalty already and can avoid of punishment Second, the certain illegal act is the crime by the Road Traffic Act, but where there is a payer who received notice and paid the penalty, the penalty means the administrative punishment. Thus, multiply imposition the criminal penalty on the administrative punishment does not run counter the principal of prohibition of Double jeopardy.
Third, as the consequence of professional negligence resulting in bodily injury occurred with closely connected with time and place in the case of the court ruling, I admit that basic fact is equal. However, it is not valid to apply the res judicata for the payer who paid the money penalty on the basis of identity so that the punishment of professional negligence resulting in bodily injury against the payer does not run counter the principal of prohibition of Double jeopardy.

참고자료

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