교통사고발생시 미조치죄에 대한 소고 - 손괴 후 미조치죄의 조치의무에 대한 판례분석을 중심으로 -

If a driver destroys an object in a traffic accident and does not perform his or her duty of action prescribed in Article 54, Clause 1 of Road Traffic Act, he or she will be punished for not taking an action after destruction(Article 148 of Road Traffic Act). Article 54, Clause 1 is applicable to accidents involving both person and property damage, but the content of duty of action is different between the two types of accidents due to their characteristics. There is no question that the core of charge for no action taken after destruction is the action of eliminating obstacles after an accident(action of securing safety), but there is a controversy over whether the driver that caused the accident should identify him or herself(action of identification) to people involved in the accident including the victim and police officer. The action of identification holds important significance in relation to a claim for damages on the part of the victim. Others argue that the action of identification is not required since the charge for no action taken after destruction is not to protect the property damage of the victim. The action of identification is, however, a basic action to specify the driver that caused the accident and does not pursue only the purpose of compensation for property damage. The stipulation method of Article 54, Clause 1 offers no reason to exclude it from the duty of action. It is also a question whether to apply the charge for no action taken after destruction to a driver that has left the site of accident without identifying him or herself when there was no need to take an action of securing safety due to the slight nature of accident and absence of accident debris at the site. If a driver leaves the accident site without identifying him or herself, there will be a car chasing him or her that seems to escape from the site. It can cause another risk and obstacle on the road. Even the possibility of chase driving will lead to the same conclusion as the actual case of chase driving. The possibility of chase driving should take all elements into consideration before judgment including the degree of destruction to the victim's vehicle, the location of the victim's vehicle, the number of offender's vehicle, and the traffic situations at the time of accident. Both the property damage charge in accidents(Article 151 of Road Traffic Act) and the charge for no action taken after destruction(Article 148) will be applicable to a driver that caused a property damage accident and left the site without performing the duty of action. Unlike the violation of Article 151, the violation of Article 148 is not defined as the case of no punishment against will in Article 3, Clause 2 of Act on Special Cases concerning the Settlement of Traffic Accidents. It is independent from the violation of Article 151 and cannot be regarded as the case of no punishment against will since the provision is not to facilitate compensation for damage or solution of dispute.