[News Terms] The 'Sangsangjeok Competition' Applied to the Backward Running Accident at Sicheong Station

Competition of Multiple Crimes Arising from a Single Act

Following the reverse driving accident at Seoul City Hall Station last month, which resulted in 16 casualties, the driver at fault, Mr. Cha (68), was detained and indicted on the 20th. Legal experts are divided over the severity of Cha's punishment. The prosecution applied charges of professional negligence causing death or injury under the Special Act on the Treatment of Traffic Accidents, based on the concept of ‘fictitious concurrence.’ Under the current Special Act on the Treatment of Traffic Accidents, the crime of professional negligence causing death or injury is punishable by imprisonment for up to five years or a fine of up to 20 million won.

To understand what fictitious concurrence means, one must first understand the concept of 'concurrent crimes.' Article 37 of the Criminal Act (Concurrent Crimes) defines concurrent crimes as multiple offenses for which judgments have not been finalized, or crimes for which judgments involving imprisonment or heavier sentences have been finalized, and offenses committed before the finalization of those judgments. Concurrent crimes are divided into ‘fictitious concurrence’ and ‘real concurrence.’ Fictitious concurrence occurs when multiple crimes arise from a single act. Real concurrence occurs when multiple crimes arise from multiple acts.

Driver Cha Mo involved in the reverse driving accident at Seoul City Hall Station

For example, consider unlicensed driving and drunk driving. An unlicensed driver is caught in a police crackdown on drunk driving. In this case, two crimes are established simultaneously from one driving act: unlicensed driving and drunk driving. These two crimes are considered to be in a ‘fictitious concurrence’ relationship. However, if this unlicensed drunk driver refuses a breathalyzer test at the scene, is booked by the police, and then the drunk driving is confirmed, the refusal to take the breathalyzer test is a separate and independent act from the prior driving act. Therefore, the ‘refusal to take a breathalyzer test’ is in a ‘real concurrence’ relationship with the previous crimes.

The reason for distinguishing concurrent crimes lies in the difference in how sentences are determined. There are cases where an individual violates the same law multiple times through one or multiple acts, and cases where different laws are violated separately. In these cases, the sentence is determined by considering the elements of the crimes, sentencing guidelines, and the relationships between the violations.

Sentencing for fictitious concurrence is straightforward. According to Article 40 of the Criminal Act (Fictitious Concurrence), punishment is based on the ‘absorption principle.’ The absorption principle means that the heavier sentence ‘absorbs’ the lighter one. Only the sentence for the heaviest crime among multiple offenses is applied. For example, the unlicensed drunk driver mentioned earlier would be punished according to the heavier sentence between unlicensed driving and drunk driving. Ultimately, only one result is punished.

Key Figure in the 'Terra·Luna' Crash Incident, Do-hyung Kwon, CEO of Terraform Labs
[Photo by Yonhap News]

On the other hand, real concurrence adopts the ‘aggravation principle.’ Under domestic law, the sentence for the heaviest crime is increased by 1.5 times. Suppose the unlicensed drunk driver who refused the breathalyzer test received actual prison sentences of ▲1 year for unlicensed driving ▲3 years for drunk driving ▲2 years for refusal to take the breathalyzer test. In this case, the maximum sentence that can be imposed is 4 years and 6 months, which is 1.5 times the 3-year sentence. However, the aggravation principle also aims to prevent excessively harsh punishments. If Korea adopted the ‘cumulative principle,’ the total sentence could be the sum of all three sentences, amounting to 6 years.

The United States follows the cumulative principle. This is why criminals can receive sentences ranging from decades to hundreds of years or life imprisonment. This is also why Kwon Do-hyung (33), CEO of Terraform Labs and the main culprit behind the $45 billion (approximately 61 trillion won) damage caused by the ‘virtual currency Terra and Luna crash,’ has repeatedly expressed his desire to be tried in Korea.