ㆍ발행기관 : 한국형사정책연구원ㆍ수록지정보 : 연구총서 / 2010권 / 31호 / 1 ~ 119 페이지 ㆍ저자명 : 강우예 ( Wu Ye Kang ) , 신양균 ( Yang Kyun Shin )
A variety of traffic policies are demanded to lessen automobile fatalities caused by traffic accidents, and regulation under criminal law (형법적 규율) that is a legal counteraction (규법적 대응) is said to play an important role. The automobile fatalities by drunken driving had no additional punishment in the past. In 2007, revision of the Act on Additional Punishment of Special Crimes (특가법) could punish automobile fatalities of drunken drivers additionally who committed death or injury crime while driving a car under drunken or drug. This paper examined incorporation of automobile fatalities of the crime of fatal driving style into the Penal Code (형법전). The laws and regulations on the crime of fatal driving style were enacted in accordance with the Act on Additional Punishment of Special Crimes (특가법) in 2007 not to discuss incorporation into the Penal Code (형법전) yet: Someone suggested incorporation of the laws and regulations into the Penal Code to revise all of the special criminal law (형사특별법) and to reflect the laws and regulations to the Criminal Act. However, incorporation of types of the crimes not included in the Criminal Act into the Penal Code (형법전) needs to inspect from point of view of criminal policy, and it shall consider problems at application to the special criminal law as well. And, the incorporation into the Penal Code (형법 전) needs to inspect relations with types of the crimes that have different theories. In California State and Michigan State in the United States, a drunken driver shall be criminally responsible for critical accidents caused by drunk driving without definite evidencing of either mistakes or causal relationship that is minimum level of responsible requirement (책임요건). Since then, the court of the State of California revised the responsibility in detour to apply legal interpretation based on traditional responsibility to drunk driving homicide. The causal relationship can be made between drunk driving and death subject to negligence (과실) to let an actor (행위자) responsible for his or her will (의사 상태). However, Michigan State and others have not drawn responsibility between drunk driving and death from not only traditional subjective requirement (mens rea) and causation. The drunk driving homicide was overheated in the 1980s, and it has currently reached a conclusion that it requires either negligence (과 실) or gross negligence (중과실). The state legislation of drunk driving homicide sometimes is not based on traditional responsibility theory to be in dispute. There already existed strict liability of the United States, in other words, criminal requirements being close to liability without negligence (무과실 책임) at felony murder so that responsibility of the drunk driving homicide was not admitted easily to deviate from traditional standards. In Japan, the 153rd term Congress passed enactment of Article 208-2 of the crime of fatal driving style by revising a part of the Criminal Act on November 28, 2001 that was publicly announced to be No.138 of the Act on December 5, 2001 to be valid and effective starting from December 25, 2001. The crime of fatal driving style that the Criminal Act newly enacted was included not in injury through negligence of Article 28 of the Criminal Act that regulated professional negligence resulting in injury and death (Article 211 of the Criminal Act of Japan) but in injury crime of Article 27 of the Criminal Act that regulated ``deliberate offense (고의범)`` such as injury crime (Article 204 of the Act) and violence crime (Article 208 of the Act). The professional negligence resulting in death and injury (업무상과실치사상 죄) shall be sentenced to be ``either 5-years or less in prison or 500,000 Yen or less fine``, while the injury crime of fatal driving style shall be done ``10-years or less in prison`` and the homicide crime of fatal driving style shall be done ``1-year or more in prison`` without monetary penalty. The Japanese law has not regulation that can punish such a crime of fatal driving style. So, malicious traffic regulation violator was thought to have negligence resulting in death and injury and to be thought to violate the Road Traffic Act as an administrative law violator. As Korea did, so Japan applied professional negligence resulting in death and injury before the year of 2001 when a driver killed or injured a person while driving a car, and it gave statutory penalty of 5-years or less in prison, imprisonment and fine regardless of death or injury. Even if a driver kills some of persons because of remarkable negligence (과실행위) while driving a car, he or she has committed a crime of the punishment (과형상일죄) to be given maximum sentence of 5-years in prison. When not only the crime of the punishment (과형상일죄) but also drunken driving crime (Upper limit of statutory penalty of drunken driving crime was revised from 2-years or less in prison to 3-years or less in prison in accordance with revision of Article 117-2-1 of the Road Traffic Act in 2007.), upper limit of the sentence shall be 7 years and 6 months in prison (7 years in prison before revision). As a matter of fact, it is true that assessment from point of view of the Criminal Act (형법 적평가) has a blank, and that punishment regulation of the crime of fatal driving style fills the blank. The one who has committed the crime can be severely punished to let him or her be in prison for a long time and to alleviate a victim`s psychological pains temporarily or to lessen anger and hatred against an assailant: But, such an action cannot compensate for a victim`s losses and damages fundamentally. The trend of severe punishment (형벌적극주의 경향) was made to protect safety of citizens` life: The request of the safety can be made through either media or politics and administrative bodies to be a subject of either politics or administration. However, knowledge and opinions that should be base of policy decision may be likely to belong to populism in modern society that has been extremely specialized to have special technology. In other words, national decision-making in the area of criminal policy can be made by citizens and common intellectuals who have not special knowledge to have binarity thought; In particular, crime problem can ask for so called ``miracle remedy`` continuously that can be very much effective. The thought that severe punishment (엄격한 형벌) can control antisocial actions in the future is certain to be a kind of utilitarianism, and it is said to be irrationalism having no interest in empirical evidence to be utilitarianism that can exist with theorie der Vergeltungssatrafe (응보형론), and the punishment can keep balance between actions, in other words, desirable actions and undesirable actions in the society. The introduction of crime of fatal driving style cab bring the fear to the Criminal Act that should be considered carefully. In particular, drunk driving resulting in death and injury only can expand scope of the punishment to lose balance of the punishment against common criminals because of negligence. When the crime of fatal driving style does not expand scope of applications by not only ertolgsqualifiziertes delikt but also requests of negligence, the crime of fatal driving style that belongs to basic crime needs to interpret in limited way. The ertolgsqualifiziertes delikt that can produce serious results of either death or injury has two types: The one type has object of basic actions such as roads, trains and waterworks in the society that can produce risks of basic actions against common and/or abstract persons. And, the other type has same object of basic action (기본행위) as that of the crime of bodily injury resulting in death (상해치사죄) (Article 259-1) and the crime of robbery resulting in injury and death (강도치사상죄) (Article 337 and Article 338). As the case of general negligence (개괄적 고의) has shown, the crimes have a certain degree of scope. The latter type can produce additional result (가중결과) from basic action of an individual in much limited scope, and the risk of additional result (기중결 과) can be related not to common and/or abstract person but to individual and/or concrete person from point of view of limited scope. The fatal driving of the crime of fatal driving style is not an independent crime but the crime that can be punished at occurrence of either death or injury, so that it is thought to be similar to the latter type at basic crime. The crime of fatal driving style punishes not fatal driving in general but driving having ``substantial risk`` (실질적위험) that has been connected with death and injury, so that risks having no connection with death and injury had better be excluded from the crime of fatal driving style. Therefore, individual and/or concrete person shall have risks ``within range of fire`` (사정범위내) of fatal driving either at present or in the future. The crime of fatal driving style can be made subject to not only fatal driving and death and/or injury but also ``risks against life and body of individual and/or concrete person in limited scope.