The Constitutional Court ruled that a driver should be indicted if a pedestrian is hit by a car while passing slightly away from a crosswalk.
The Constitutional Court said on the 26th that on the 21st it granted, in a unanimous decision by all justices, a constitutional complaint filed by a person surnamed Kim seeking to overturn prosecutors' decision not to indict a driver surnamed Park.
On Jan. 31, 2024, at about 2:15 p.m., Park was driving in Seocho-gu, Seoul, in the fourth lane of a four-lane one-way road and made a right turn. There was an unlighted crosswalk there. Park turned right without stopping at the crosswalk or at the stop line and struck Kim, who was crossing the road, causing fractures requiring six weeks of treatment.
Under the Road Traffic Act, drivers must come to a temporary stop before a crosswalk to avoid endangering pedestrians. Under the Act on Special Cases Concerning the Settlement of Traffic Accidents, hitting a pedestrian who is using a crosswalk constitutes one of the 12 gross negligence offenses and is punishable by up to five years in prison or a fine of up to 20 million won. If an accident occurs while a pedestrian is crossing a road other than on a crosswalk, the driver is, in principle, not subject to criminal punishment due to "no right of prosecution."
After prosecutors checked the dashcam footage from Park's car, they found that the point where Kim was hit was slightly outside the crosswalk. The Seoul Central District Prosecutors' Office in April 2024 declined to indict Park, saying it was difficult to view Kim as a "pedestrian at a crosswalk."
Kim then filed a constitutional complaint, saying the decision violated Kim's rights to equality and the pursuit of happiness and should be canceled. Kim argued that, because Kim had been standing in front of the crosswalk to use it just before the accident, Kim should be considered a "pedestrian at a crosswalk" even if not inside the crosswalk at the moment of the collision.
The Constitutional Court found that Kim appeared to have been standing in front of the crosswalk before crossing and intended to go straight across on a crosswalk installed not perpendicular to the centerline. Although the accident occurred at a point slightly outside the crosswalk, this was not an unusual situation, so Kim was a "pedestrian at a crosswalk."
The Constitutional Court said the legislative intent of the 2022 amendment to the Road Traffic Act was to provide greater protection for pedestrians. It added, "The prosecutors' nonindictment was an exercise of prosecutorial power that misconstrued the legal principles of the Road Traffic Act and reached an incorrect conclusion, thereby infringing Kim's right to equality and right to be heard in judicial proceedings."