Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents (hereinafter ‘Traffic Special Act’) provides that “A driver of a vehicle who commits a crime provided for 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”. This regulates Non-real Status Crime, and ‘traffic’ stipulated herein is interpreted as objective circumstances of conduct. Additionally, driver stipulated in the Traffic Special Act seems to be defined as ‘a person driving or who has driven.’ This stems from legislator’s preference for compressed expression in terms of legislative technical efficiency. It is understood to be the result of preference for ’driver’, which is a compressed expression, rather than the descriptive phrase such as “anyone who is under the circumstances of operating a vehicle or driving” (Article 3(1) of the Traffic Special Act, Article 151 of the Road Traffic Act is identical) or “anyone who is driving or have driven” (Article 3(1) & 4(1) of the Traffic Special Act).
The background of the subject judgment corresponds to [Case 2] where a non-driver (different occupation), who is a person lacking status, collaborates with an ‘occupational’ driver, who is a person with status. In this case non-driver, who lacks the status as an ‘occupational’ driver, has a status for a different occupation, and consequently shall be punished according to the statutory penalty for Co-principals of Traffic Special Act along with the person with status as ‘occupational’ driver (Article 33 of the Criminal Act). The reason is that the person lacking status has its own unique occupational negligence derived from the different occupation apart from the occupational driver, being guilty as Co-Principals of Bodily Injury by Negligence of the Criminal Act - Article 3 of the Traffic Special Act supercede Article 268 of the Criminal Act based on the existence of special relation. As regards to the contravention of Article 3(1) of the Traffic Special Act, where ‘traffic’ situation, which is the condition of punishment, and 12 exception clauses, which are the conditions of prosecution, exist only in respect of occupational driver, the person lacking such status also is inevitably guilty for Co-Principals of Traffic Special Act.
As an inevitable outcome, Article 3(2) of the Traffic Special Act, which is a special case of non-prosecution against the clearly expressed intention of the victim, also applies to the person lacking such status. However, since the Principle regarding the Indivisibility of Criminal Complaint does not apply to an offence which cannot be prosecuted against the clearly expressed intention of the victim, declaration of an injured party of his/her intention not to prosecute two or more Co-Principals does not take effect in respect to the other accomplices.
Therefore, Article 4(1) of the Traffic Special Act, stipulating special cases of comprehensive insurance coverage, is interpreted to limit the scope of personal application to only ‘driver’ according to its literal reading. “Exceptions must be interpreted narrowly”(ingularia non sunt extendenda), which is a principle of limitation, must apply to the above.
The subject judgment is evaluated to confirm the non-application of the special cases of insurance to non-driver, i.e. comprehensive insurance coverage not taking effect to non-driver. This point is at least considered to be in line with the established precedent that the principle of Subjective Indivisibility of Criminal Complaint shall not apply mutatis mutandis to offence which cannot be prosecuted against the clearly expressed intention of the victim. Nonetheless, it is extremely regrettable that the subject judgment only declares such purport without any detailed grounds.

[대상판결] 대법원 2017. 5. 31. 선고 2016도21034 판결[업무상과실치상]
  [사실관계]
  [공소사실의 요지]
  [사건의 경과]
  [대법원 판결요지] (피고인 甲에 대한 부분)
 Ⅰ. 들어가는 말
 Ⅱ. 교특법위반죄의 법적 성격
  1. ‘운전자’의 법적 성격
  2. ‘교통’ 상황의 법적 성격
 Ⅲ. 운전과 관련된 과실범의 공동정범
  1. 과실범의 공동정범
  2. 운전과 관련된 판례 사례
  3. 신분(운전의 ‘업무자’)이 공동정범의 성립·과형에 미치는 영향
 Ⅳ. 처벌특례의 인적 적용범위
  1. 특례의 내용
  2. 특례의 인적 적용범위
 Ⅴ. 대상판결의 검토
  1. ‘운전자’에 대한 부분
  2. ‘운전자 아닌 자’에 대한 부분
 Ⅵ. 결론
 [참고문헌]
 [Abstract]

• 이주원(고려대학교 법학전문대학원) | Rhee Joo-Won (School of Law, Korea University)