參與發生交通事故逃逸罪之刑責──評最高法院112年度台上字第623號刑事判決

Criminal Liability for Participating in a Hit and Run: A Review on Supreme Court Criminal Judgement 112 Tai- Shang-Zi No. 623 (2023)

刑法第185 條之4 發生交通事故逃逸罪於2021 年修法後，以發生交通事故致人死傷程度科處不同刑罰。依修法理由與多數實務見解，認為本罪保護的法益是即時救護、維護交通安全與釐清事故責任。然多元法益保護遭致學界批評，即時救護屬個人法益，卻規定在公共危險罪章中，出現體系錯置現象。為了維護交通安全與釐清事故責任，要求事故當事人有通知警察機關的作為義務，違反不自證己罪原則，且由「逃逸」文義無法得出事故當事人負有多重的作為義務，有違法律明確性原則。本罪的行為是逃逸，「逃逸」係指自發生交通事故現場離開而逸走，行為人逃離肇事現場，犯罪即既遂。「發生交通事故」要件要素屬行為情狀，行為人必須有所認識。至於事故導致何種傷亡結果，則屬客觀可罰性要件，逃逸者無須認識。由於本罪的行為主體限於駕駛動力交通工具發生交通事故者，故本罪正犯須本人親自為之，才能成立犯罪，他人僅可成立教唆或幫助犯。當正犯逃離現場成立本罪既遂後，他人再開車載其離開， 不成立本罪的幫助犯，而是使犯人隱避罪。

After the amendment of Article 185-4 of the Criminal Law in 2021, the crime of fleeing in a traffic accident will be subject to different penalties according to the degree of death and injury caused by the traffic accident. According to the legislative explanation for the amendment and most practical opinions, the legal interests protected by this crime are immediate ambulance, maintenance of traffic safety and clarification of responsibility for the accident. However, the protection of multiple legal interests has been criticized by the academic community, as immediate ambulance is a personal legal interest, but it is stipulated in the chapter of offenses against public safety, which is a misplaced system. In order to maintain traffic safety and clarify the responsibility for the accident, the parties involved in the accident are required to have the obligation to notify the police, which violates the principle of non-self-incrimination. Moreover, it cannot be concluded from the meaning of “fleeing” that the parties involved in the accident have multiple obligations, which is against the principle of legal certainty. The act of this crime is “fleeing”, it means leaving the scene of a traffic accident. When the perpetrator flees the scene, the crime is accomplished. The element of “traffic accident” is a behavioral condition that the perpetrator has to know. As for what kind of injury or death result caused by the accident, it is an objective criminality condition that the perpetrator does not need to know. Because the subject of this crime is limited to those who drive a motor vehicle and cause a traffic accident, the principal offender of this crime must commit the crime himself, and others can only be a solicitor or accessory. When the principal offender f led the scene and consummate of offense, others drove him away, not constitute an accessory, but constitute the offense of concealment of offenders.