“음주”에 대한 독일 연방대법원 판결 - BGH, Beschluss vom 24. Juli 2017- GSSt 3/17을 중심으로 -

Unlike drunk driving, in cases where a person commits a criminal offense due to drinking, the degree of responsibility is a difficult question to answer in relation to the principle of responsibility in criminal law. Drinking clearly reduces a person’s ability, but if this leads to a state of mental incapacity or mental weakness, it becomes a situation where responsibility cannot be imposed or should be imposed less according to the principle of responsibility in criminal law. If the criminal exploits this situation, the problem arises of how quickly and accurately the criminal’s blood alcohol concentration can be measured and how the criminal’s original thoughts should be understood. If this part is neglected during the investigation stage, countermeasures should be prepared through legislation or judicial precedent on how to judge the criminal. Unlike the Road Traffic Act, the criminal law does not have specific standards for blood alcohol concentration. This is the same in the Korean Supreme Court’s sentencing guidelines. The current Supreme Court sentencing guidelines exclude mental incapacity from the beginning and deny mental weakness, and use the concept of drunkennessn, which needs to be compared with German judicial precedent. Germany established a principle after a debate in the Federal Supreme Court in 2017. The Third Division of the Federal Supreme Court ruled that even if the capacity for responsibility is reduced as a result of drinking, the total amount of responsibility increases simply because the drinking itself has increased, and the remaining First, Second, Fourth, and Fifth Divisions recognized a reduction in responsibility for drinking itself, but denied a reduction in responsibility only in cases where the drinker anticipated the risk of crime or had a history of past drunk accidents. In the end, the full bench of the Supreme Court concluded that the judgment of the Third Division was correct. In calculating the total amount of responsibility, drinking is a higher factor that increases responsibility, and although the capacity for responsibility may be reduced due to drinking, it should be evaluated relatively lower compared to the increased responsibility due to drinking itself. I e., in general cases, drinking itself is not a reason for a reduction in responsibility, and a reduced sentence is not recognized. The current Korean sentencing standards for manslaughter should be changed as follows: ▷ In the case of a crime committed while drunkenness by alcohol or drugs (hereinafter referred to as “due to drinking”), no responsibility is imposed, unless there is special legislation. Drunkenness is based on a blood alcohol concentration of 0.33 percent, and can be increased or decreased depending on the specific case. The same applies to drugs. ① In the case of a state of mental weakness due to drinking, it is not reflected as any mitigating factor. It is possible to reflect it as an aggravating factor depending on the case. ② In general cases where a state of mental weakness due to drinking is not reached, the same applies as above. ③The defendant’s past drunk crime registration is applied as an aggravating factor. The same applies even if the defendant is aware that he or she is oversensitive to drinking.