According to the Constitutional Court's decision of the Constitutional Court's 'Yun Chang-ho Act' (formerly Article 148-2 Paragraph 1 of the Road Traffic Act) in November of last year, the Supreme Court is successively overturning the aggravated punishment that was given to the defendants for drunk driving up to the second trial.

The 3rd part of the Supreme Court overturned the sentence of one year in prison by the lower court in the appeal of Mr. A, who was recently charged with violating the Road Traffic Act (drunk driving and driving without a license), and returned the case to the Daejeon District Court.

A was charged with driving a car and driving about 11 km in a drunken state with a blood alcohol concentration of 0.146% in May of last year.

It was investigated that Mr. A had a history of being sentenced to a fine in 2012 and 2014 for drunk driving, and in 2016 was convicted of refusing to take a breathalyzer and sentenced to 8 months in prison and 2 years of probation.

The prosecution, who saw Mr. A's criminal record, applied Article 148-2 (1) of the Road Traffic Act, which imposes a sentence of 2 to 5 years in prison or a fine of 10 million to 20 million won on those caught twice or more for drunk driving or refusal to have a breathalyzer test. .

The first trial said, "Even though he already had 4 prior convictions for drunk driving (including refusal to measure alcohol) and 4 prior convictions for driving without a license, he repeatedly committed the same crime before 5 years had elapsed from the date of the previous crime, so the will to open a war seems very insufficient." He was sentenced to a year in prison, and the second trial maintained the same judgment.

However, the situation changed with the Constitutional Court's decision to unconstitutional the Yun Chang-ho Act, which came out a month after the second trial was sentenced.

The Supreme Court said, "In the first instance, the procedure for changing the indictment to avoid the unconstitutional consequences of the application of Article 44 (1) of Article 148-2 (1) of the Road Traffic Act twice or more is unconstitutional, etc. We should have had a hearing and judgment on the necessity of

Although the subject of the Constitutional Court's decision to be unconstitutional is limited to the 'Old Road Traffic Act' (the Road Traffic Act amended in December 2018 and before it was amended in June 2020), the aggravated punishment clause that is unconstitutional is also included in the Road Traffic Act revised in June 2020. As it is in effect, it should be treated equally as null and void according to the principle of proportionality between liability and punishment.

The reason why the Constitutional Court only considered the 'Old Road Traffic Act' is that those who filed a constitutional complaint at the time were people who were re-examined for drunk driving before the 2020 law was revised and were being prosecuted under the old law and being tried.

However, as the Supreme Court decided to apply the unconstitutional purpose of the Constitutional Court not only to the old Road Traffic Act but also to the Road Traffic Act revised in June 2020, cases such as Mr. A are coming out one after another.

On the day that Mr. A's sentence of imprisonment was overturned, the Supreme Court decided on Mr. B's case (2021) in which he was charged with violating the Act on the Aggravated Punishment of Specific Crimes (Dangerous Driving) and Violating the Road Traffic Act (Drunk Driving) and sentenced to a fine of 12 million won. In February, the second trial) was sent back to the second trial for the same purpose.

(Photo = Yonhap News)