Negligent Homicide: Elements, Types, Negligence, and Occupational Punishment

What Is Negligent Homicide?

Negligent homicide is the crime of causing a person's death through negligence.

Article 267 of the Korean Criminal Act, which governs negligent homicide, reads as follows.

Article 267 (Negligent Homicide) A person who causes the death of another through negligence shall be punished by imprisonment without labor for not more than 2 years or by a criminal fine not exceeding KRW 7 million.

Types of Negligent Homicide

The types of negligent homicide are as follows.

Negligent homicide

Occupational negligent homicide, gross negligent homicide

Elements of Negligent Homicide

Negligence in negligent homicide is governed by Article 14 of the Korean Criminal Act. The elements of negligent homicide are

1. There must be a situation caused by negligence

2. It must cause the death of a person

Article 14 (Negligence) An act that fails to recognize the facts constituting the elements of a crime due to a failure to exercise the care (注意) normally required is punishable only when there is a special provision in the statute.

The elements of a negligence offense are

1. Breach of an objective duty of care

2. Failure to recognize the elements constituting the crime

3. Occurrence of a result

Breach of the Objective Duty of Care in a Negligence Offense

A breach of the objective duty of care in a negligence offense occurs when the actor, by failing to exercise the duty of care required in social life, brings about a foreseeable and avoidable result.

For example, in a case such as someone jumping in front of a moving train, even if the engineer had exercised care and spotted the person jumping in, the result would not have changed; therefore, the engineer is not punished as a negligence offender.

In addition, the duty of care required in social life is assessed by the standard of an objective ordinary person, and if the actor possesses specialized knowledge, that too becomes a factor to be considered.

Intent in Negligent Homicide

Whether intent is recognized in negligent homicide, and in which respect it is or is not recognized, determines the applicable punishment. If a person commits assault and thereby kills another, and intent to commit the assault is recognized, the offense is not negligent homicide but assault resulting in death; and if intent to kill the person is recognized, the actor may be punished for the crime of murder.

Occupational Negligent Homicide

Occupational negligent homicide occurs when a person charged with an occupational duty of care fails to fulfill that duty of care, resulting in a death.

Because a person charged with an occupational duty of care bears a greater duty of care than an ordinary person, this serves as a factor for aggravated punishment, so a finding of occupational negligent homicide results in a heavier sentence than simple negligent homicide.

Occupational negligent homicide is defined in Article 268 of the Korean Criminal Act.

Article 268 (Death or Injury Caused by Occupational or Gross Negligence) A person who causes the death of or injury to another through occupational negligence or gross negligence shall be punished by imprisonment without labor for not more than 5 years or by a criminal fine not exceeding KRW 20 million.

The "Occupation" in Occupational Negligent Homicide

The "occupation" in occupational negligent homicide refers to work that a person continuously engages in as a single position in the sphere of their social life.

This includes not only cases where the duties performed are themselves dangerous, so that the content of the duty is to exercise care for safety, but also work whose duty is to prevent dangers to the life or body of a person.

(Supreme Court 2017. 12. 5. Decision 2016Do16738 Judgment )

Sentencing Standards for Negligent Homicide

According to the materials of the Sentencing Commission, the sentencing standards for negligent homicide are as follows.

Type	Category	Mitigated	Basic	Aggravated
1	Negligent homicide	~ 8 months	6 months ~ 1 year	8 months ~ 2 years
2	Injury caused by occupational or gross negligence	~ 6 months	4 months ~ 10 months	8 months ~ 2 years
3	Death caused by occupational or gross negligence	4 months ~ 10 months	8 months ~ 2 years	1 year ~ 3 years

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