주취운전의 형사책임 - 원인에 있어서 자유로운 행위를 중심으로 -

Abstract

In this article, I have reviewed the issues about the liability of drunken driving including theories and judicial precedents. According to legislator and case, traffic accidents by drunken driving should be regarded as the case which is not remissive for criminal responsibility. For exemple, when it can be applied to the crime of fugitive from drunken driving or the crime of fatal driving style, it is not accepted by the clause ‘actio libera in causa’ in Criminal Act. Futhermore, even if someone is not drunken, he does not consent to test of alcohol, he will be punished as the crime of refusal balloon test. 102) In general Driving While Intoxicated is regarded as the behavior of prohibition. So many strong legislation is made to prevent drunken driving. But it may lead to the revival of the Volstead Act if drivers are punished of drinking though he can drive without abnormal mental state. I think that strengthening the criminal responsibility of Driving While Intoxicated is only one of the measure, it will not be used for shrinking the sound drinking culture and leading to limited interpretation that mentally or physically incompetence is not applied to Drunken driving.