Behavior of the guilt of drunken driving evaluation of the incident - from the cause of the Theories of Liberty

Paper Keywords: drunk driving cause of the accident the free exercise of reasonable punishment for the sin of subjective
Abstract: In act drunk driving accident evaluation of guilt, now both theorists and practitioners there is a big controversy. Given the current from the three main theoretical perspectives are not circumspect in behavior of the drunken driving accident evaluation of guilt The author then used to build up drunk crime modeled the theory of free exercise of reason, trying to pursue the issue of a proper solution. I made sin for drunk driving are subjective judgments, it should be no obligation to distinguish between trapped in the capabilities and limitations Responsibility both cases; the same time, combined with changes to the judicial interpretation of the drunk driving accident in order to achieve a reasonable punishment behavior.

I. Introduction
The past two years, cases of malignant drunken driving accident occurred one after another, causing widespread concern all sectors of society. Around the judicial practice in the conviction and sentencing practices vary gap. Strong social repercussions, and not uniform in the practical operation led to academic community for the acts of drunk driving accident guilt extensive discussion of evaluation. Supreme Court after the sentencing in the Sun Weiming on September 11, 2009 issued a <<Supreme Court on the Application of drunk driving Criminal Law views>> (hereinafter referred to as <<view>>), but various theoretical disputes, disagreements and disappeared bait. the focus of controversy - how to evaluate the Criminal Code should be driving drunk again after the accident gave the driver behavior, some scholars support the Court's approach to risk convicted and punished the crime of endangering public safety practices: Some scholars believe that in such cases the perpetrator was still a violation of driving under the influence of the traffic regulations, resulting in a traffic accident, it should only traffic crime; there are some scholars follow the practice in Japan, added in the Criminal Code the crime of dangerous driving killed or injured people. In addition to these three mainstream sound, there is a relatively weak voice of reason in the free exercise claim should be drunk for the Analysis of the theory of the nature of the behavior of the incident.

I do not think that the view from the three major theoretical solution to drunk driving accident circumspect behavior evaluation of guilt, and for the perfection of our Criminal Law system did not benefit. And modeled using to build up drunk crime free because behavior, then the problem may be to seek a proper solution.

Second, the reasons for the theory of free exercise perspective Evaluation offense drunken driving accident the country responsible behavior
Drunk driving accident in China's behavior problems are caused by the guilt of such a broad evaluation of the controversy, mainly due to the court in the evaluation of this behavior is to ignore the behavior of drunk people identification and control of the objective fact that barriers are, in this case Under the simple negligence for intentional and is itself unscientific judgments. modern medicine that a drunken man with mild control has weakened, people who drink moderate ability to identify and control are reduced by a high degree of intoxicated people a certain degree of disturbance of consciousness. Health is, in the drunk driving drunk driving accident, it does not have the full responsibility skills. According to the modern Criminal "responsibility and act with the" spirit, our present, for drink driving accident There is a serious guilt evaluation system of the problem. Husak American jurist of the section of description and criminal legislation, judicial situation is very fit, "a criminal defendant in a drunken state when its actions on grounds of lack of mens rea defense of the general . he sheepishly claimed that its discretion under the damage, and his control has been reduced, if he is more sober, not the implementation of this criminal act. If these statements are true, then whether the defendant has a valid defense, the presence of mens rea or its behavior? Court almost unanimously that the defendant's defense was invalid. However, they are how (or whether) to make the results of the orthodox theory of mens rea requirements of criminal Law to maintain the same, but do not know. " Professor Hu Sake pointed out that this problem is not the negative of such cases can be fine, in fact, given such a drunk driving accident cases reflect the strong anti-social personality, in order to protect public safety, "if the Law caught in its own mind loss or Jingshenhaoruo case, any penalty or reduce its claims do not, there will be no order to maintain social order, in the criminal policy which should be from non-. "prompted him to here the information is - in theory, a blank or a lack of theoretical guidance criminal justice is perilous. investigated the accident caused by drunken guilt evaluation of the causes of difficulties, the first is the free exercise of the reasons for the provisions of the Criminal Law on the imperfections.

The so-called cause of liberty, is the result of intentional or negligent acts of others allowed itself to fall into unconsciousness or act out of control of the state, then no liability in this capacity or ability to limit liability against the state of implementation of the legal interests protected by criminal behavior. Which , ability to make ourselves into no obligation or limitation of liability with the ability of "the causes of behavior"; in this state against the implementation of the legal interests protected by criminal acts as "the results of behavior." So why act required in the implementation of hazard does not have full responsibility with the ability of people to assume full liability, because the responsibility of Liberty is based on trying to solve this problem.

(A) the basis because the responsibility of Liberty
Responsibility for the cause of liberty based scholars from various countries put forward different views, The principle of responsibility of the author's insistence on the extent of the position of scholars from various countries will be divided into three: "1) The principle of responsibility to adhere to. By reason, said front, uniform behavior said that the theories of indirect perpetrator, because the free exercise to reconcile the doctrine of conflict and responsibility. (2) The principle of weakening of responsibility. by reason of strict liability to resolve the basis of the free exercise of the responsibility for the problem. (3) The principle of liability claims exception. will cause of Liberty as a "responsibility and act with the" principle of an exception. Due to space limitations and take into account the domestic and foreign scholars have discussed this issue more deeply, the author does not dwell on this specific content of each theory, I only held to clarify point of view.

I support the exception to that view. To say that the cause of Liberty The punishment is the "responsibility of a joint caused by an act of a principle," an exception. Cause Free criminal liability, not the doctrine of denial of responsibility, but responsibility the existence of Marxist temporary separation of behavior and responsibility. Specifically, for reasons of liberty, does not require that the perpetrator act with the responsibility of committing crimes against capacity, as long as the behavior of people trapped in sin due to their own ability or limitation of liability no responsibility for the state capacity , while the implementation of the criminal law against acts prohibited and dangerous consequences for the perpetrator to avoid the possibility of have a look, then the perpetrator can be held full responsibility. I agree with the exception that the reason why the view of the specific reasons are as follows:
First, analysis of the core substance of responsibility, accountability and results of capacity to act may not exist as necessary. Responsibility for acts of criticism is the possibility of Responsibility, guilt, only whether the conduct was inferred based on the possibility of censure, not responsibility itself. Therefore, even if the reasons for the results in the free exercise behavior is not fully responsible for the ability to, but based on the results of behavior depends on the behavior of the responsibility of capacity in the meaning of attitude and condemn the perpetrators of criminal law based on the subjective , it is the perpetrator of the harm caused by the results of the psychological attitudes held. it acts in the subjective aspect is the possibility of a condemnation, so when other aspects of behavior also found when the constituent elements of crime and hold the perpetrator's complete criminal responsibility is a theoretical basis.

Second, the principle of criminal law doctrine from the responsibility of the value of choice analysis, Responsibility and the results may not be to act as necessary to exist. "Doctrine that there is a responsibility of the responsibility from the classical Marxist doctrine to the modern responsibilities change. Classical Marxism is a responsibility and the concept of the responsibility associated with retribution doctrine, and doctrine is a modern responsibilities associated with the concept of responsibility for the prevention doctrine. "effective prevention should be based on the results of harm on the basis of the reasons behind. to families at the penalty, in addition to responsibilities outside policy elements should also be considered as a policy factor, should pay attention to general prevention, but also for special precautionary attention. So when other aspects of behavior consistent with circumstances of a crime while at the same time and hold the perpetrator's criminal liability is entirely realistic value .

(B) the use of the theoretical analysis of the reasons for the free exercise of acts of drunk driving accident Subjective Fault
The distinction between intentional and negligent, the key is the perpetrator against the results for the subjective state of mind. Implement because Liberty is the perpetrator should be combined with behavior in the causes of the harmful results of the subjective state of mind and behavior in the results against the results of the subjective state of mind on the specific analysis. However, with the single acts of different types, trapped in the no obligation ability to state the reasons for Liberty and trapped in limiting the liability capacity by reason of liberty, based on the earlier paper for the cause of free exercise as a duty-based analysis, and its subjective mentality inspection different focus. The former causes intentional or negligent act shall be the result of damage to determine the subjective state of mind, which is mainly based on the results of an actor who acts against the results of the subjective state of mind to determine.

This theory will be specific to the behavior of drunk driving accident, that drunk driving is the intentional or negligent those judgments, should distinguish between two situations: (1) intentional or negligent acts of others is no obligation to remain trapped in the capacity of the state, and then drunk driving accident. At this point, intentional or negligent acts of others should be drunk act endangering public safety on the final results of the subjective state of mind the hazards identified. (2) intentional or negligent acts of others remain trapped in limiting the liability capacity in the state, and then drunk driving accident. At this point , intentional or negligent acts of others should be based on drunken driving and its follow-up act on the final results of endangering public safety hazards to determine the subjective state of mind.


1. Trapped in the capacity of state no responsibility for acts of drunk driving accident guilt
Since this case, intentionally or negligently, shall act in drunken behavior on the results of endangering public safety hazards to determine the subjective state of mind, then, in addition to a few actors for revenge on society, to vent their anger and other purposes, deliberately drunk way driving situation danger to society, the vast majority of people in the drunken behavior of behavior, only to recognize their subsequent acts of drunken driving is a violation of the traffic regulations, but for the final results of endangering public safety subjectively is clearly negative attitude. Thus, no understanding that the will of the capacities of drunk driving as a subjective fault of the perpetrators, and punished by a traffic accident, is in line with legal principles, the mixed system can be avoided on.

However, despite the identification of this fault line with legal, but if their behavior is indeed drunk driving accident resulted in serious harm results, but according to the Crime of the light sentences, pArticularly for offenders who would not achieve the purpose of preventing people in terms of social, emotional and justice can not meet their basic requirements of retribution. In order to solve the real problem, Professor Yu Zhigang to amend <<Supreme Court hearing traffic accident on the Application of Laws in Criminal Cases of issues of interpretation)) (hereinafter referred to as <"Intepretive>>) in the fourth, adding in pArticularly bad cases of drunken driving case of motor vehicles in order to achieve the severe penalties for drunken driving. I was in favor of this solution, the drunken driving treatment as punishment fits the crime, either do not break the dual system of China as a new offense will be punished, but also can be incorporated into the evaluation system of criminal law, criminal policy to meet the requirements. reposted elsewhere in the Research Papers Download http:/ / www.hi138.com draw on the ideas, the second after the accident for drunken collision problem, I believe that you can modify <"Intepretive>> Article on" escape and cause death, "the restrictive interpretation of" in the escape the process of causing death by negligence "into" Causing death "situations.

2 trapped in the limited capacity of state responsibility for acts of guilt drunk driving accident
This case, the intentional or negligent acts of others should be based on drunken driving and its follow-up act on the final results of endangering public safety hazards to determine the subjective state of mind, then the discussion will return to the perpetrators of the criminal law to determine the subjective guilt of the general approach that is based on "subjective dominant objective, subjective and objective reflection of" the basic principles, combined with the specific circumstances of the case identified. to drunken driving offense is concerned, whether the perpetrator should be combined with driving ability, normal driving, speed speed, the driving How vehicle in the vehicle, how the road conditions and visibility, the number of vehicles and pedestrians location where the crime, the performance after the incident in terms of a comprehensive analysis found. If it is determined is indirect intention, the establishment of a dangerous crime of endangering the public safety: the case of negligence, then consider how the Crime reasonable under the sentencing. According to the author presented above on the <"Intepretive>> changes, in this case drunk driving accident on the behavior of subjects in an appropriate penalty, is basically completed .

(C) general provisions on the Chinese to the provisions of the reasons for replacing the free exercise of the <<Penal Code>> Paragraph Four of Article XVIII of the regulation blade
Drunk driving accident in the guilt of evaluation, the use of the theory of free exercise because most scholars put forward, it should be general provisions in the Criminal Code provides that "acts of people were drinking, taking narcotics, stimulants, etc., intentionally or negligently caught no obligation to ability of state capacity or limitation of liability, and in this state, the results caused harm to society should be held criminally responsible, may not reduce or exemption from criminal responsibility. "to replace the existing <<Penal Code>> the provisions of Paragraph Four of Article XVIII.

However, from the level it should be, from the sound system, considerations of criminal legislation, in the general provisions on the free exercise of reason is to make the general requirement is necessary. There are two reasons: first, through the General Terms and Conditions, the object of punishment is a clear reason Liberty, which is based on the free exercise of consistency reasons, relevance, then I proposed in this paper the reasons for the previous free exercise of subjective criteria is a matter of course sin, a matter of course. Despite the dominant view of criminal law are recognized by industry because the Theory of Liberty , but after all it is only a doctrine, did not rise to the Legislative height, citing the time of the dispute, I felt shallow roots, its limitations. Second, "<Penal Code>> only to the provisions of Paragraph Four of Article XVIII "An intoxicated person who commits a crime shall bear criminal responsibility." In fact, it is not due to intentional or negligent acts of others trapped in the subjective responsibility of ability or limitation of liability no ability to state the case is also included in the case of criminal responsibility in, and this is clearly a substantive violation of the requirements of responsibility doctrine. Therefore, in the general provisions to the provisions of the reasons for replacing the free exercise of the Criminal Code Paragraph Four of Article XVIII, theoretically, it should be.

However, the Real level point of view, there are two issues worth considering, first, whether the current General Criminal Code has been amended to the best time? Second, in the general provisions on the free exercise of the reasons for the need to make a general requirement is very urgent ? On the first question, China's first <<Penal Code>> developed in 1979, followed by a comprehensive revision in 1997, and 97 <<Penal Code>> has also been revised several times, and its main form of amendments to the amendments has so far adopted seven amendments to the Criminal Law Amendment may be noted in all seven of the general provisions of the changes involved. In fact, the Criminal Law Amendment has been adopted in ways <<Penal Code>> be modified and improved this approach is mainly considered better able to maintain the basic principles of the Criminal Code and the main structure, the stability of the contents of the revised .1997 less than ten years ago, stability and cost of legislation from the criminal point of view, at present not The best time to amend the Criminal Code General. Next, for the second question, although I ought to demonstrate the level of need for change, but I believe that this is not very urgent necessity. True, "a drunken man a crime shall bear criminal responsibility. "Because the provisions of the non-intentional or negligent acts of others trapped in the subjective responsibility of ability or limitation of liability without the abilities of the case are also included in the case of criminal responsibility being, but this situation in real life is very small, a large number of judicial practice are due to face full responsibility for their own sin is not limited to the ability of the state of the situation. For this vast majority of cases, the provisions of Paragraph Four of Article XVIII is in the legal base circumspect in . And, as I mentioned above, the dominant view of criminal law are recognized by industry because the free exercise of the theory, then even for those rare cases, liability can also be compensated for the Application of Marxist principles.

So, given the current General Criminal Law Amendment is not the best time at the same time, "<Penal Code>> the provisions of Paragraph Four of Article XVIII is basic to the practice of positive local solutions vast majority of cases, the author does not advocate in the last couple of stage, the general provisions to the provisions of the reasons for replacing the free exercise of the <<Penal Code>> the provisions of Paragraph Four of Article XVIII.

Third, the conclusion
Acts against drunken driving accident guilt evaluation, the author used the theory to analyze the free exercise of reason, made sin for drunk driving are subjective judgments, should distinguish between two situations: (1) intentional or negligent acts of others remain trapped in no obligation to capacity state, and then drunk driving accident. At this point, intentional or negligent acts of others should be drunk act endangering public safety on the final results of the subjective state of mind the hazards identified. (2) intentional or negligent acts of others remain trapped in limiting the liability capacity in the state, and drunk driving accident. At this point, intentional or negligent acts of others should follow-up behavior of drunken driving and endangering public safety when the final results of the subjective state of mind the hazards identified. At the same time, supplemented by <"Intepretive>> changes in order to achieve drunk driving accident on the behavior of reasonable sentencing.

Japan's largest criminal law scholar, Professor Ren married once said: "In the criminal law to solve the problem, we should carefully observe the social reality, proposed solutions to meet the social reality, that is, criminal law theory must be able to appropriate the results of community realistic theory of criminal law. 'kiss whether the position can be taken to maintain the stability and integrity of our criminal law system, under the premise is more appropriate to blame for drunk driving accident be evaluated, it is this attempt to explore. I as capacity limited, some views will inevitably be defective, but I believe that the guilt of the drunk driving accident risk assessment as the general driving behavior of the entry point, is a representative of significance and practical value. reposted elsewhere in the Research Papers Download http:// www.hi138.com