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| <Image: http://k-law4u.blogspot.com/> |
Case 1) Michael T. Stapleton, a 21-year-old U.S. Citizen residing in Seoul was in a hurry to the party with his friends to celebrate the new year of 2023; and got involved in a traffic accident by hitting a S60 Volvo which got damaged on its left side (let's assume no passenger in the car was injured). In accordance with Korean law, what criminal punishment would Michael expect?
a. In Principle, Michael is subject to imprisoment for two-year or less, or penalty up to 5M
- [Road Traffic Act]
| Article 151 (Penalty Provisions) | |
Where the driver of any motor vehicle or tram damages the building or goods of any other person due to negligent disregard or gross negligence, he or she shall be punished by imprisonment without labor for not more than two years or by a penalty not exceeding five million won. <Amended on Mar. 27, 2018>
[This Article Wholly Amended on Jun. 8, 2011]
b. What about Michael is Insured with Collective Insurance?
However, Michael might not be subject to the above punishment when he has a collective insurance (*) as far as his accident was not out of 12 (twelve) gross negligence stipulated in the [Act on Special Cases Concerning the Settlement of Traffic Accidents] (**)
| Article 3 (Special Cases for Punishment) | |
| (2) | Due to traffic of vehicles, a driver who commits a crime by inflicting bodily injury due to occupational or gross negligence of crimes relating to traffic accidents mentioned in paragraph (1) or a crime of Article 151 of the Road Traffic Act shall not be prosecuted against the express will of the victim: Provided, That this shall not apply in cases where a driver of a vehicle who commits a crime of inflicting bodily injury due tooccupational or gross negligence of crimes relating to traffic accidents mentioned in paragraph (1), leaves the scene of an accident without taking measures including those necessary to render aid to a victim provided for in Article 54 (1) of the Road Traffic Act or leaves the scene of the accident after moving the victim from the site of an accident and abandoning the victim, in cases where a driver of a vehicle commits aforesaid crimes and refuses to take a sobriety test in violation of Article 44 (2) of the Road Traffic Act (excluding the case when a driver of a vehicle requests for or agrees to a blood sample test) and in cases where a driver of a vehicle commits such crime caused by an act falling under any of the following subparagraphs: <Amended by Act No. 13829, Jan. 27, 2016; Act No. 14277, Dec. 2, 2016>
| Article 4 (Special Cases for Insurance Coverage, etc.) | |
| 1. | In cases of falling under the proviso to Article 3 (2); |
| 2. | In cases where there occurs a life-threatening danger caused by the bodily injury of the victim, a disability, an incurable or a very difficult state of cure; |
| 3. | In cases where the obligation of an insurance company, a mutual aid association or a mutual aid manager to pay insurance money or deducted amount does not exist any longer due to the reasons that an insurance contract or a mutual aid contract becomes void or early terminated, the contract concerned has an exemption clause or other reasons. |
| (2) | The "insurance or mutual aid" mentioned in paragraph (1), shall refer to insurance or mutual aid for which the insurance company mentioned in the Insurance Business Act or the mutual aid association or mutual aid manager mentioned in the Passenger Transport Service Act or the Trucking Transport Business Act, according to a clause of insurance authorized or a clause of mutual aid approved, notwithstanding whether or not the agreement of compensation for damages exists between the insured or partner of mutual aid association and the victim, in substitution for the insured or partner of mutual aid association pays the total amount of ordinary expenses for medical fees of victim and standard amount of payment determined in a clause of insurance or mutual aid for other damages in advance, in accordance with provisions of Presidential Decree, ultimately compensates the total amount of the compensation for damages by a final and conclusive judgment and other title of debt corresponding to such judgment, due to a traffic accident that involves the insured or partner of a mutual aid association. |
| (3) | The fact that there is insurance or mutual aid coverage mentioned in paragraph (1) shall be certified in writing by the insurance company, the mutual aid association or the mutual aid manager which states the purport of paragraph (2). |
[This Article Wholly Amended by Act No. 10575, Apr. 12, 2011]
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(*) There are two types of traffic accident insurance: liability insurance (책임보험) which covers limited amount of damages up to KRW 150,000,000 for personal death/injury & KRW 20,000,000 for property damage v. collective insurance which covers whole damages for personal death/injury & the amount stipulated in the presidential decree for property damage.
(**)
| 1. | In cases of operating a vehicle in violation of signals provided for in Article 5 of the Road Traffic Act, signals given by a traffic police officer or other directions of safety signals for prohibition of traffic or temporary suspension; |
| 4. | In cases of operating a vehicle in violation of the methods, time of prohibition and location of prohibition of passing or prohibition of intervening as provided for in Articles 21 (1), 22, and 23 or operating a vehicle in violation of a method of passing on highways under 60 (2) of the Road Traffic Act; |
| 7. | In cases of operating of a vehicle without obtaining a driver's license or a construction machinery operating license or without holding an in- ternational driver's license in violation of the provisions of Article 43 (1) of the Road Traffic Act, Article 26 of the Construction Machinery Management Act or Article 96 of the Road Traffic Act. In such cases, the case of suspension of a driver's license or a construction machinery operating license or the case of prohibition of operation of a vehicle shall be deemed as not having obtained a driver's license or a construction machinery operating license or not holding an international driver's license; |
c. Conclusion
Therefore, a foreigner residing in Korea needs to firstly check his/her insurance status whether it is a collective(or full) coverage insurance. In case you are not insured with the full coverage insurance, or want to make sure you do not get any criminal punishment in case you have the insurance; please contact Seo Yun Jung (syjung@nhanyang.com) for any further queries; a K-Laywer4U at New Hanyang Law Firm ((nhylaw.co.kr).
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Next posting would handle a below case:
Case 2) The driver in S60 Volvo (hereinafter, referred to as a "Victim") had been transferred to an ER nearby, however, eventually passed away. In accordance with Korean law, what criminal punishment would Michael expect?
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