Abstract
Due to the occurrence of an accident that Yun Chang-ho died in a drunk driving vehicle in 2018 and to the reflection of the public's opinion about which the punishment for habitual drunk driving should be strengthened, Article 148-2 Paragraph 1 of the Road Traffic Law was partially revised into the contents as saying that“a person who violates Article 44 Paragraph 1 or 2 more than twice(it shall be limited to those who have driven a car, etc. or a streetcar) shall be sentenced to the imprisonment for not less than two years and not more than five years or be fined not less than 10 million won and not more than 20 million won.” But soon after, the Constitutional Courtmade an unconstitutional decision that the section pertinent to“a person who violates Article 44 Paragraph 1 more than twice” out of Article 148-2 Paragraph 1 of the Road Traffic Law, which was partially amended in the above, comes to violate the Constitution. The Constitutional Court decided that“the violation of Article 44 Paragraph 1 more than twice” is the case, and then mentioned that it violates the principle of proportionality between responsibility and punishment as what stipulated the excessive statutory sentence that deviates from the degree necessary for the original function of punishment by imposing the uniformly aggravated punishment even on drinking and driving as recidivism in a relatively light crime nature without putting any time limit between the violation of the past regulations prohibiting drunk driving, which becomes the aggravated requirements, and the violation of the prohibition regulations on the drunk driving as recidivism subject to punishment. Nevertheless, even if there is a difference in the severity of the action type and crime of the drunk driving, all can be seen as a homogeneous criminal act that is reasonably distinguished from other crimes with regard to the important half-value indicators of behavior called the repeated violation of the prohibition regulation for the drunk driving, thereby being unable to be concluded that it violates the punishment system required by the Constitution even though the punishment regulations were not further subdivided in consideration of individual behavioral aspects. Also, there is monetary penalty other than prison sentence in spite of being able to treat the case of drunk driving as recidivism that is not highly likely to be criticized the same way as the dangerous repetitive drunk driving, thereby being the section that a judge can sufficiently resolve it through sentencing with the fact judgment. As a result, the aggravated punishment standard of the provisions subject to judgment in this case cannot be considered as well to have significantly deviated from the legislative discretion. Accordingly, it is questionable whether the Constitutional Court's decision on the unconstitutionality in this case is appropriate. Especially, the number of violations in the Road Traffic Act(drunk driving) has not decreased yet even if the punishment provisions for habitual drunk drivers have been intensified. Among the people, the need to tighten the punishment for drunk driving is being still mentioned. Thus, it can be seen that there is even a change in the legal sentiment among the people who can conclude that the provisions subject to judgment in this case are unconstitutional. In this respect, if the Constitutional Court tried to make the same unconstitutional decision as the decision in this case, it would be said that the decision incompatible with the constitution is more consistent with the separation of powers as a means for respecting the right to form legislation and for ensuring the legal stability in consideration of various issues such as a legal void, not a decision on simple unconstitutionality, and as a retrial arising from the retroactive application according to the decision to unconstitutionalize the penal provisions.
Published Version
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