Research on Dangerous Driving Crime

Content Summary: In the past two years, vicious traffic accidents caused by drunk driving and drag racing have occurred one after another in Chengdu, Nanjing, Hangzhou and other cities in China. Some drivers have been punished for "traffic accident crime", and some drivers have been sentenced for "crime of endangering public safety". Due to the great difference between the two crimes, it has caused a lot of controversy in the society. The Criminal Law Amendment (VIII) added the crime of dangerous driving (Article 133 of the Criminal Law), and this paper attempts to analyze the specific application of the crime on the basis of interpreting the legislative intent of this article.

Key words:The scope of conviction for dangerous driving is chasing and driving drunk driving.

An interpretation of the legislative background and legislative intent

In recent years, drunken driving, drag racing and other dangerous driving causing serious injuries and deaths have occurred frequently, which has caused extremely bad social impact. The people are also extremely angry and demand severe punishment of the perpetrators. With the acceleration of my country's urbanization process and the substantial increase in the number of cars owned, traffic accidents caused by various dangerous driving behaviors have increased sharply. Under the framework of my country's current criminal law, simple dangerous driving behaviors that do not cause actual harm are generally not Recognized as a crime. In judicial practice, the practice of convicting only dangerous driving behaviors that cause actual harm can no longer meet the people's psychological requirements for punishing such behaviors. It is against this background that based on the consideration of protecting people's livelihood and increasing the punishment for acts that seriously endanger the safety of the people, the Criminal Law Amendment (VIII) criminalizes dangerous driving.

As stated in the "Explanation on the (VIII) Amendment to the Criminal Law (Draft)": "The harm to some society is serious, and the people have a strong response. The illegal acts that were originally adjusted by administrative or civil means are recommended to be crimes. Mainly drunk driving, drag racing and other dangerous driving behavior ......" The multiple, serious social harm of dangerous driving and the strong response of the public caused by it are the realistic basis for the amendment to consider the separate criminalization of this kind of behavior, and the necessity of bringing this kind of behavior into the field of criminal law adjustment.[①]

In fact, the idea of a separate crime for dangerous driving has long been mentioned in both academic and practical circles, but the ways and reasons for incrimination are not the same, and there are two main categories: one is based on the consideration of sentencing, which holds that the crime of causing death and injury by dangerous driving is convicted according to the crime of causing traffic accidents, which is too light to be accepted by the public; however, due to the subjective and objective restrictions, it is not reasonable to characterize this kind of behavior as the crime of endangering public safety by dangerous methods in judicial practice, and it is considered that the crime of causing death and injury by dangerous driving should be added as a transitional crime between the crime of causing traffic accidents and the crime of endangering public safety by dangerous methods. The other is based on the perspective of crime prevention. It is considered that the provisions of my country's criminal law that cause harm to the result of conviction are unreasonable, and there is a lack of risk evaluation of dangerous driving behaviors such as drunk driving and drag racing. Therefore, it advocates the addition of dangerous driving crimes to realize the right Early protection of legal interests.

Obviously, the legislative model in the amendment is more inclined to the latter. It focuses on the general preventive function of penalties, and moderately expands the scope of criminal law in the field of public security, that is, the serious violations in the field of transportation that were originally adjusted by administrative means are adjusted by criminal means, and the purpose of deterring potential criminals is achieved by highlighting the inevitability of penalties rather than the severity of penalties.

Two Dangerous Driving Conviction Scope and Dangerous Driving Crime Determination

(I) range of convictions for dangerous driving

Throughout the legislation of various countries, the provisions on the types of dangerous driving behaviors include not only drunk driving and drag racing, but also driving after taking drugs or narcotics, driving without driving skills and other equally dangerous driving behaviors. "the People's Republic of China Criminal Law Amendment (VIII)") Article 22 stipulates that an article is added after Article 133 of the Criminal Law as one of Article 133: "Driving a motor vehicle on the road to chase and race, if the circumstances are bad, or driving a motor vehicle while drunk on the road, shall be sentenced to criminal detention and a fine." The Supreme People's Court, the Supreme People's Procuratorate on the implementation.<中华人民共和国刑法>The (V) of Supplementary Provisions for the Determination of Offences supplements the offence of dangerous driving. According to the provisions of the Criminal Law Amendment, the crime of dangerous driving stipulated in our country mainly adjusts two types of behaviors: one is driving, chasing and driving, and the circumstances are bad; the other is drunk driving. In fact, the extension of dangerous driving behavior itself is much broader than this. It is precisely because of the high risk of dangerous driving behavior and the extremely high possibility of endangering social public safety that people consider using the most mandatory Criminal means to regulate it.

Determination of the Crime of (II) Dangerous Driving

The crime of dangerous driving refers to the behavior of driving a motor vehicle on the road to chase and race, the circumstances are bad, or driving a motor vehicle while drunk on the road. From the point of view of the subjective elements of the crime, the crime of dangerous driving emphasizes the subjective intention of the parties, and the form of the crime is intentional, not negligent crime.

1Identification of Driving Chasing Race Driving Behavior

Generally speaking, chasing and racing refers to the dangerous driving behavior of the actor driving at high speed and speeding on the road, chasing and overtaking other vehicles at will, merging frequently and suddenly, and driving into other vehicles at close range.

According to the provisions of the Criminal Law Amendment, for the behavior of driving chasing and racing, the circumstances are bad as the elements of conviction and punishment. The basic criterion for judging the bad circumstances is the public danger of the pursuit of competitive driving, and the intentional pursuit of competitive driving based on any purpose and motive should be punished as long as it creates an abstract public danger and the circumstances are bad. The "bad circumstances" here is the provision of the limit of the degree of the crime. On the one hand, it clarifies the objective characteristics of the behavior, which is conducive to conviction; on the other hand, it excludes the minor driving chase and race driving behavior from the field of criminal law adjustment, so as to prevent the excessive expansion of criminalization. In other words, as long as the pursuit of competitive driving is abstract and dangerous, and the circumstances are bad, it constitutes a crime.

To judge whether the circumstances are bad, we should make a comprehensive judgment based on the number of vehicles and pedestrians on the road, the section and time of driving, and the speed and mode of driving. The act of chasing and racing on a wilderness road where there are no other vehicles or pedestrians shall not be regarded as aggravating.

It should be pointed out that chasing and racing is different from "drag racing". Chasing and racing is based on the premise of high-speed and speeding with certain risks. However, pure high-speed driving or speeding does not directly establish this crime. This crime cannot be equated with the crime of speeding abroad. Subjectively, the actor did not deliberately pursue to surpass other motor vehicles, but due to the fast speed, the state of "chasing and racing" of overtaking was objectively formed, which seemed to meet the objective constitutive requirements of this crime. However, due to the lack of subjective intention and the environment did not cause urgent danger to other legal interests, it is generally not suitable to be regarded as a crime.

2Identification of drunk driving

Drunk driving refers to the behavior of driving a motor vehicle on the road in a drunken state. Deliberately driving a motor vehicle in a drunken state constitutes a crime in accordance with this crime. This crime is an abstract dangerous crime, and it is not necessary to specifically judge whether the drunken behavior is a public danger when convicted.

Drunk driving is an intentional crime. The perpetrator must realize that he is driving a motor vehicle in a drunk state. However, the understanding of the drunk state does not need to be very specific (there is no need to recognize the specific alcohol content in the blood), as long as there is a general understanding. Generally speaking, as long as the actor knows that he has drunk a certain amount of alcohol, in fact, he has reached a state of drunkenness, and drives a motor vehicle, he can be determined to have the intention of drunk driving. The justification of thinking that he is only drunk driving and not drunk driving cannot be ruled out as intentional. Even if the perpetrator does not take the initiative to drink alcohol (the drink is mixed with alcohol by others), if he realizes that he has drunk before or at the time of driving a motor vehicle, he shall also be deemed to have the intention of drunk driving. If you do not take the initiative to drink, and do not realize that they have been drinking, exclude the establishment of intentional, not recognized as a crime..

III Horizontal Comparison of Dangerous Driving and Other Charges

The crime of dangerous driving is a crime established by the legislator based on the consideration of the pre-protection of legal interests. Dangerous driving behavior can constitute a crime without causing actual harm, but in theory it seems to have caused such a contradiction: dangerous driving is the crime of dangerous driving that does not cause actual harm, and the crime of causing traffic accidents that causes actual harm, while the former is an intentional crime and the latter is a negligent crime, the occurrence of the result of the actual harm actually makes the subjective aspect of the perpetrator change from intentional to negligent. Furthermore, how to draw a clear line between the crime of dangerous driving and the crime of endangering public safety by dangerous means? Only by solving these problems can we truly understand the connotation of the crime of dangerous driving and accurately apply this crime in judicial practice.

Comparison of (I) Dangerous Driving Crime and Traffic Accident Crime

The crime of dangerous driving and the crime of causing traffic accidents are not absolutely independent categories, and they are closely related: dangerous driving behavior is undoubtedly a violation of traffic and transportation management laws and regulations, and if a major traffic accident occurs as a result, causing serious injury, death or causing heavy losses to public and private property, there is no doubt that the crime of causing traffic accidents should be convicted.

If the act of "violating traffic and transportation management laws and regulations" that constitutes the crime of causing traffic accidents in an objective aspect is convicted separately, and combined with the crime of causing traffic accidents, it will actually violate the principle of non-repeated evaluation of behavior. Repeated evaluation of driving behavior. Dangerous driving behavior not only violates the crime of dangerous driving, but also violates the crime of causing traffic accidents. Choose a felony and be punished as the crime of causing traffic accidents, rather than multiple crimes.[②]

Do the similarities and differences between the subjective aspects of the crime of dangerous driving and the crime of causing traffic accidents indicate that the subjective aspects of the perpetrator have changed before and after the result of the actual harm caused by dangerous driving? The answer is clearly in the negative, and this misunderstanding is due to the lack of distinction between the subjective aspects of the respective charges. As a kind of dangerous crime, the crime of dangerous driving does not take the occurrence of the actual harmful result as the constituent element in the objective aspect, but according to the intentional regulation function of the objective constituent element, the intentional content is determined by the content of the objective constituent element, so the intentional of the crime of dangerous driving does not point to the occurrence of the actual harmful result, but only refers to the attitude towards the dangerous state or dangerous result caused by the dangerous driving behavior. In the same way, the negligence of the traffic accident crime refers to the attitude towards the occurrence of the actual harm result. Therefore, the intention and negligence of the two crimes are aimed at different contents. In the case of dangerous driving causing actual harm, the subjective difference between the two crimes will not lead to contradiction in the characterization of the behavior.[3]

Comparison between the crime of (II) dangerous driving and the crime of endangering public safety by dangerous means

Although there are many similarities between the crime of dangerous driving and the crime of endangering public safety by dangerous methods in the characteristics of crime constitution, subjectively they are all intentional, and the object of infringement is public safety, the difference is also obvious, mainly in the aspect of objective behavior characteristics: dangerous driving behavior itself has certain danger as well as acts such as arson, breaking water and explosion, however, it does not have the obvious "harmfulness" of arson, water breaking, explosion and other behaviors, such as arson, water breaking, explosion and other behaviors point to a certain legal benefit and pose a threat to it from the beginning of implementation, while dangerous driving behavior generally does not have the characteristics of "harmfulness", and its danger comes from the behavior itself rather than "harmfulness", therefore, dangerous driving behavior cannot be regarded as a dangerous method equivalent to arson and explosion. This is also the main reason why the academic circles opposed the simple dangerous driving behavior as the crime of endangering public safety by dangerous methods. However, if the perpetrator deliberately chases racing and drunken driving for the purpose of retaliating against the society and venting his anger, and rampages in the field of public transportation without regard to the safety of the lives and property of the unspecified majority of pedestrians, the perpetrator has at least a laissez-faire intention to endanger public safety, and its behavior has a clear direction of infringing certain legal interests, thus having obvious "harmfulness" and should constitute the crime of endangering public safety by dangerous methods. In this case of dangerous driving as a criminal method, the criminal law no longer evaluates the dangerous driving behavior itself, but only evaluates the crime committed by the perpetrator using dangerous driving, and is punished as the crime of endangering public safety by dangerous methods.

From the perspective of the nature of the crime, both are dangerous crimes, but the difference is that the crime of endangering public safety by dangerous methods is a specific dangerous crime, and the crime of dangerous driving is an abstract dangerous crime. The former refers to the danger that has caused the object of criminal law protection in individual cases, and this dangerous state can be perceived empirically. The latter refers to the legislative assumption that a particular mode of conduct is accompanied by a dangerous state. The significance of this distinction is that for the crime of endangering public safety by dangerous means, the dangerous result is part of the constituent elements, and various elements in the case should be considered to confirm whether it is dangerous to the legal interests. For the crime of dangerous driving, if a specific dangerous driving behavior occurs, the legislation will presume that the dangerous result has already occurred, and there is no need to judge objectively whether danger occurs on a case-by-case basis.

Four Conclusion

The provisions of the the People's Republic of China Criminal Law Amendment (VIII) on the crime of dangerous driving, the provisions of<中华人民共和国刑法>The determination of the offence of dangerous driving in the "(V) of Supplementary Provisions for the Determination of the Offense" has put an end to the academic debate. In judicial practice, dangerous driving behavior should be accurately convicted and punished, so that neither the scope of punishment can be expanded to lead to the generalization of the criminal law, nor should its scope be reduced, leading to connivance of crimes and the consequences of harming the overall interests of society, so as to give full play to the criminal law. General preventive function.

This article won the second prize of Jinan lawyer's business paper selection in 2011

[①]Xiao Zhonghua, Wang Haiqiao. Criminal Law Definition of Dangerous Driving Crime [J]]. Law Forum, 2009(11).

[②]Lim Dong-mao. An intellectual theory of criminal law thinking [M]. Version 3 of the update. Beijing: China Renmin University Press, 2009:79-80.

[3]Chen Xingliang. The value structure of criminal law [M]. Version 2. Beijing: China Renmin University Press, 2006:337.