2006Do4322 Violation of the Act on Special Cases concerning the Settlement of Traffic Accidents

by the Supreme Court of Korea

Justices Kim Hwang-sik(Presiding Justice), Kim Young-ran, Lee Hong-hun, Ahn Dae-hee(Justice in charge)

Main Issues

1. Whether a non-punishment clause is effective as to a separate criminal act committed at the same time and place as the prior violation act for which the violation fine was already paid(negative)
2. Whether the grounds for exceptions such as a violation of traffic signal, etc., stipulated under the items of Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accident are the elements of the crime of violation stipulated under Article 3(1) of the same Act, or merely constitute the grounds for submitting the indictment(=the grounds for submitting the indictment)
3. Whether a person who receives a violation notice and pays the fine for causing a traffic accident by violating a traffic signal can be punished again as to a crime of causing an injury by negligence on the job or a crime of causing an injury by gross negligence under the Act on Special Cases concerning the Settlement of Traffic Accidents(affirmative)

Summary of Decision

1. As Article 119 (3) of the Road Traffic Act (wholly amended by Law No.7545 of May 31 of 2005) stipulates that a person who receives a notice to pay a fine and then pays the fine shall not be punished for the same act again, under the content and purport of the provisions of the same Act about notices and payments of fines, in the event where a person receives a notice of fine from the chief of a police station and then pays the fine and not get punished again shall be limited to acts that are recognized as identical to the original act as well as the act itself that is recorded as the reason for the notice of the fine, therefore, even if an act is conducted at the same time and in the same place as the original act, the non-punishment effect due to the payment of the fine shall not cover an act of crime that is separate from the original act.
2. The grounds for exceptions such as a violation of traffic signal, etc., stipulated in the items of Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accident that permits a driver who causes a traffic accident and commits a crime of causing injury to someone, while on the job, through negligence or through gross negligence to bring a suit against a victim's expression of opinions are not the elements of the crime of violation stipulated under Article 3(1) of the same Act but merely constitute the grounds for submitting the indictment.
3. The crimes of violation as stipulated in Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accident such as an act of violating a traffic signal, as stipulated in Article 3(2) of the Act, shall be deemed as a separate act of crime that shall not be recognized as identical, due to the significant difference in the content, degree of crime and the legal interest of the victims of the act, therefore, even though a person receives a violation notice and pays the fine for causing a traffic accident by violating a traffic signal, which constitutes an exception stipulated in Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accident, punishing him for a crime of violation as stipulated in Article 3(1) of the same Act as to a crime of causing an injury by negligence on the job or a crime of causing an injury by gross negligence shall not be deemed to constitute a double punishment, which is prohibited under Article 119(3) of the Road Traffic Act.

Reference Provisons

1. Article 119(3)of the Road Traffic Act(wholly amended by Law No.7545 of May 31 of 2005)(refer to Article 164(3) of the current Act), Article 119(3)of the Road Traffic Act(refer to Article 164(3) of the current Act)
2. Articles 3(1) and 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accidents
3. Articles 3(1) and 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accidents, main provision and proviso/Article 117(2)2 of the Road Traffic Act(refer to Article 162(2) of the current Act), Article 119(3)of the Road Traffic Act(refer to Article 164(3) of the current Act)

Article 117 of the Road Traffic Act (Common Provisions)

(1) For the purpose of this Chapter, the term "act of offense" means the violating acts falling under the crimes under each subparagraph of Article 113 or 114, and the definite scope thereof shall be prescribed by the Presidential Decree.

(2) For the purpose of this Chapter, the term "offender" means a person who has committed an act of offense, but who does not fall under any of the following subparagraphs:

1. A driver of a motor vehicle, etc. who has been unable to present his driver's license at the time of an act of offense;
2. A person who has caused a traffic accident by an act of offense: Provided, That such persons shall be excluded as have come not to be punished, pursuant to Articles 3 (2) and 4 of the Act on Special Cases concerning the Settlement of Traffic Accidents, for the crime of an accidental infliction of injury by professional negligence, an accidental infliction of injury by gross negligence, or the crime under Article 108 of this Act;

Article 119 of the Road Traffic Act (Payment of Penalty)

(1) Any person who has received a written notice of penalty payment under the provisions of Article 118, shall pay it within 10 days to the national revenue bank as designated by the Commissioner of the National Police Agency, or its branch or agent, or a post office: Provided, That when it is impossible to pay the penalty within a specified period owing to natural disasters or other inevitable reasons, he shall pay it within 5 days from the day on which the said reasons disappeared.

(2) Any person who has failed to pay the penalty within the payment period under the provisions of paragraph (1), shall pay the amount obtained by adding 20/100 of the notified penalty to the said penalty, within 20 days from the day next to that on which the payment period is expired.

(3) Any person who has paid the penalty pursuant to the provisions of paragraph (1) or (2) shall not be punished again for the said act of offense.

Article 3 of the Act on Special Cases concerning the Settlement of Traffic Accidents (Special Cases for Punishment)

(1) A driver of a vehicle who commits a crime provided in Article 268 of the Criminal Act by reason of a traffic accident shall be punished by imprisonment without prison labor for not more than five years or by a fine not exceeding 20 million won.

(2) Due to traffic of vehicles, a driver who commits a crime by inflicting bodily injury through occupational or gross negligence of the crimes relating to traffic accidents mentioned in paragraph (1) or a crime of Article 108 of the Road Traffic Act shall not be prosecuted against the express objection of the victim: Provided, That this shall not apply in cases where a driver of a vehicle who commits a crime of inflicting bodily injury through occupational or gross negligence of the crimes relating to traffic accidents mentioned in paragraph (1), leaves the scene of the accident not taking the measures including those necessary for the relief of the victim as provided in Article 50 (1) of the Road Traffic Act or leaves the scene of the accident abandoning the need to move the victim from the site of the accident, and in cases where a driver of a vehicle commits such crime caused by an act falling under any of the following subparagraphs.

1. In case of operating a vehicle in violation of signals as provided in Article 5 of the Road Traffic Act, signals given by a traffic policemen or other directions of safety signals for prohibition of traffic or temporary suspension;
2. In case of crossing a median line of the road in violation of the provisions of Article 12 (3) of the Road Traffic Act, or of crossing, making U-turns or driving backward in violation of the provisions of Article 57 of the same Act;
3. In case of operating a vehicle in excess of the speed limit by 20 kilometers or more per hour as provided in Article 15 (1) or (2) of the Road Traffic Act;
4. In case of operating a vehicle in violation of the methods, time of prohibition and location of prohibition of passing or prohibition of intervening as provided in Articles 19 (1), 20 through 20-3 and 56 (2) of the Road Traffic Act;
5. In case of operating a vehicle in violation of the method of passing a crossing as provided in Article 21 of the Road Traffic Act;
6. In case of operating a vehicle by neglecting to observe the duty of protecting pedestrians on a crosswalk as provided in Article 24 (1) of the Road Traffic Act;
7. In case of operating of a vehicle without obtaining a driver's license or a construction machinery operating license or without holding an international driver's license in violation of the provisions of Article 40 (1) of the Road Traffic Act, Article 26 of the Construction Machinery Management Act or Article 80 of the Road Traffic Act. In such cases, the case of suspension of a driver's license or a construction machinery operating license or the case of prohibition of operation of a vehicle shall be regarded as not having obtained a driver's license or a construction machinery operating license or not holding an international driver's license;
8. In case of operating a vehicle while under the influence of alcohol in violation of the provisions of Article 41 (1) of the Road Traffic Act or while normal operation is deemed difficult due to influence of drugs in violation of the provisions of Article 42 of the same Act;
9. In case of operating a vehicle in violation of pavements of roads as provided in Article 12 (1) of the Road Traffic Act or in violation of the method of crossing pavements as provided in Article 12 (2) of the same Act; and
10. In case of operating of a vehicle and hence violating the obligation on preventing passengers from falling off as provided in Article 35 of the Road Traffic Act.

Reference Cases

1. Supreme Court Decision 83Do1296 delivered on July 12, 1983(Gong1983, 1220), Supreme Court Decision 2001Do849 delivered on Nov.22, 2002(Gong2003Sang, 267)
2. Supreme Court Decision 2004Do4693 delivered on Nov. 26, 2004(Gong2005Sang, 61)
3. Supreme Court Decision 83Do1296 delivered on July 12, 1983(Gong1983, 1220), Supreme Court Decision 2001Do849 delivered on Nov.22, 2002(Gong2003Sang, 267)

• Defendant: Defendant

• Appellant: Defendant

• Counsel: Attorney Ahn Tae-yoon

• Judgment of the court below: Inchon District Court Decision 2006No514 delivered on June 9, 2006

Disposition

The appeal shall be dismissed.

Reasoning

This is to examine the Reasons for Appeal.

As Article 119 (3) of the Road Traffic Act (before it was amended in its entirety on May 31, 2005 into Act number 7545) stipulates that a person who receives a notice to pay a fine and then pays the fine shall not be punished for the same act again, under the content and purport of the provisions of the same Act about notices and payments of fines, in the event where a person receives a notice of fine from the chief of a police station and then pays the fine and not get punished again shall be limited to acts that are recognized as identical to the original act as well as the act itself that is recorded as the reason for the notice of the fine, therefore, even if an act is conducted at the same time and in the same place as the original act, the non-punishment effect due to the payment of the fine shall not cover an act of crime that is separate from the original act (refer to Supreme Court Decision 83Do1296 delivered on July 12, 1983, Supreme Court Decision 2001Do849 delivered on November 22, 2002 et al.).

Meanwhile, the reasons for exceptions such as a violation of traffic signal, etc., stipulated in Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accident that permits a driver who causes a traffic accident and commits a crime of causing injury to someone, while on the job, through negligence or through gross negligence to bring a suit against a victim's expression of opinions are not the elements of the crime of violation stipulated in Article 3(1) of the same Act but merely constitute the grounds to bring the suit (refer to the Supreme Court Decision 2004Do4693 delivered on November 26, 2004), and Article 117(2)2 of the Road Traffic Act stipulates that a person who causes a traffic accident by violating a rule shall be excluded from the status that could receive a notice of fine, in the event that he is punished for the crime of violation as stipulated in Article 3(1) of the same Act in accordance with the provision of Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accident, and according to the contents and purports of such relevant laws and regulations, the crimes of violation as stipulated in Article 3(1) of the same Act such as an act of violating a traffic signal, as stipulated in Article 3(2) of the Act, shall be deemed as a separate act of crime that shall not be recognized as identical, due to the significant difference in the content, degree of crime and the legal interest of the victims of the act, therefore, even though a person receives a notice and pays the fine for causing a traffic accident by violating a traffic signal, which constitutes an exception stipulated in Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accident, punishing him for a crime of violation as stipulated in Article 3(1) of the same Act shall not be deemed to constitute a double punishment, which is prohibited under Article 119(3) of the Road Traffic Act.

According to the record, the defendant received a notice to pay a fine for violating a traffic signal on August 26, 2005 at around 22:05 at the address of 515-9 Hyo Sung Dong, Keyang Gu, Incheon, while driving a city bus whose license plate number is Incheon 70 Ba 2626, and the defendant committed a crime of violation as stipulated in the Act on Special Cases concerning the Settlement of Traffic Accident in this case, on the same date and in the same place as above, while driving the above bus at the speed of about 30km per hour, went from the former intersection in Hyo Sung Dong toward the Anaji junction, and when he reached the intersection that has traffic lights located in 515-9 Hyo Sung Dong, Keyang Gu, Incheon, ignored a stop sign and drove straight through, which constitutes negligence on the job, which resulted in crashing into the left part of a motorcycle registered in Incheon and driven by Person 1 who is not a party in this suit which was already in the above intersection, and consequently brought the bus to a sudden stop, whose impact caused eleven (11) people on board including Person 2 who is not a party in this suit injuries such as sprain of the right knee joint, which calls for about two (2) weeks of medical treatment, and according to the above mentioned legal reasoning, even if the above traffic signal violation and the act of crime in this case are proximate in time and place, they shall be deemed as separate acts that are not recognized as identical, so even though the defendant received a notice for the traffic violation from the chief of the police station and paid the fine, it shall not influence the punishment of the defendant for a crime of violation in accordance with the Act on Special Cases concerning the Settlement of Traffic Accident, which shall not be deemed as double punishment.

Therefore, the court below is justified in recognizing the defendant as guilty as it viewed that the effect of the above fine payment by the defendant shall not cover the suit in this case, and is not in violation of laws by misunderstanding the legal principle as to the effect of a payment of the fine.

Therefore, the appeals shall all be dismissed, and this decision is delivered with the assent of all Supreme Court Justices who reviewed the appeal.

Source

• Supreme Court Decision 2006Do4322 delivered on April 12, 2007, Supreme Court Library of Korea