The ruling that declared the restriction of right of arraignment according to exemption law is unconstitutional in case of grieve bodily harm regardless of light/heavy negligence poses several
problems. This is especially the case in heavy negligence, but it is in overall problematic in execution levels if negligence is not considered. Even though heavy negligence is not seen as a weighing factor of professional negligence and instead either is seen as a weighing factor of normal negligence in criminal law, the ruling completely ignores this. It is also problematic in that heavy negligence is not a solid concept and leaves much to the judgement of the jury. In addition, the fact that decision of heavy negligence depends on doctor's opinion is also a problem. The unconstitutional declaration saw the exemption law as a violation of the equality rights, but it actually helps the people's convenience by speeding up the process of compensation, and the differentiation of death and heavy negligence is according to their inherent differences. The exemption law serves its purpose by transferring the loss of property of victims to the car insurance and preventing the mass production of ex-convicts.

[대상판결] 2009. 2. 26. 2005헌마764, 2008헌마118(병합) 전원재판부
  사건 개요
  주 문
  판시사항
  결정요지
  재판관 민형기 재판관 조대현의 반대의견
 〔연구〕
  I. 서 언
  II. 교통사고의 특성에 따른 입법정책
  III. 업무상 과실행위와 교통사고
  IV. 특례법의 입법취지에 비추어본 법리적 쟁점
  V. 특례법의 내용과 관련된 합헌적 근거
  VI. 업무상과실 중과실의 형법적 평가
  VII. 결 론
  [참고문헌]
  [Abstract]

• 오경식(강릉 원주대 법학과 교수) | Oh, Kyung Sik