On the "crime of dangerous driving" should be aborted

Abstract: In recent years, with the major or fatal drink driving accidents caused by frequent, many people suggested the establishment of the Criminal Code dangerous driving in the crime, the Criminal Law Amendment VIII (the draft in such a context, the intention to enter a conviction for dangerous driving punishment. Based on the theoretical reserves of Criminal legislation, Criminal Law and judicial practice of Modesty operational point of view, the provisions of this legal analysis, that "the crime of dangerous driving" should be aborted.

Keywords: dangerous driving, Criminal legislation, Criminal Law, judicial action

Criminal Law Amendment eight (Draft Article 22: drunken driving motor vehicles on the road, or driving a motor vehicle on the road in pursuit of competitive driving, aggravated, at the prison, a fine response to this provision, the Criminal Code heated academic discussion, mixed. additional amendments to the Criminal Code the crime of dangerous driving against the backdrop of frequent occurrence in recent years, a vicious drunk driving accident cases such as drunk driving, Foshan Li View all 2 death caused by an injury case, drunk driving caused the Sanmenxia Wang Weibin 6 dead 7 injured cases, Nanjing Ming-Bao drunk driving caused five deaths and four injuries case, Chengdu Sun Weiming drunk driving resulting in four dead 1 injured case, Jixi Zhang Xijun drunk driving caused two dead 7 injured case, Anyang, Henan Wei method according to drunk driving caused 8 deaths and 3 injuries case, etc. So, in the Penal Code to establish the crime of dangerous driving, whether it is reasonable and necessary? While most scholars have called for setting the charges in the criminal Law, but this answer is negative, following the theory of reserves from the criminal legislation, Modesty criminal law and judicial practice of operational angles of the specific argument.

As we all know, the criminal legislation is a highly specialized and requires a high degree of rigor of the work. To establish a criminal offense must be a very serious degree of social harm behavior, and before setting the charges, must be fully the theory of reserves, otherwise, despite the establishment of this Criminal Code charges, they can not achieve good legal and social effects. in order to analyze the case, I believe, because of the dangerous driving behavior, the theory of conviction is not enough reserves, hastily in the Penal Code the crime of dangerous driving in the set is not appropriate in my opinion, there are many dangerous driving behavior does not solve major theoretical problems, mainly in the following aspects: First, what is dangerous driving? dangerous driving should include which of type of behavior? second, to dangerous driving conviction, then the sin is subjective, intentional or negligent or is it also contains both contain intentional fault? Third, the crime of dangerous driving should be set to Danger, or the result of guilty? if it is dangerous guilty, then they should be concrete or abstract Danger Danger? Fourth, the crime of dangerous driving and traffic offenses as well as endangering the public safety and how to coordinate the relationship between crime, etc. First, scholars discussed the current point of view, there of people to dangerous driving is stated as: "refers to the process of manufacturing a motor vehicle for the community are not allowed in traffic dangerous behavior, including driving without a license, speeding (including drag racing, drinking and driving (including drink driving, fatigue driving, taking drugs or driving after taking sedative drugs, overloading driving, which is clearly a security risk of a vehicle driving behavior ". ① Some people put the dangerous driving is defined as:" serious harm to public safety is a high risk of of driving, including drink driving, drunk driving, road racing, driving without a license, driving after drug use and other behavior "② It is clear that the scholars, by definition, dangerous driving, including specific types of behavior are not consistent the Criminal Code dangerous driving while under the amendment contains only two type of behavior. Second, if the dangerous driving to be convicted and punished, then the sins of the subjective aspects of crime may also have a great debate. academic view is that the crime of dangerous driving The subjective aspect is intentional, the other view is that the subjective aspects of the crime of dangerous driving hard all recognized as intentional. ③ The implication of the view that the subjective guilt of the crime of dangerous driving is both intentional fault is also included, which clear violation of the sins of our criminal law theory, I believe that, under the criminal law amendment, it seems that the crime of dangerous driving is the fault of the subjective sin again, and some scholars believe that the crime of dangerous driving should be set as the result of guilty, and Potential Damage that should be set to abstract, ④ Some scholars believe that the crime of dangerous driving should be set to the result of guilty. Obviously, dangerous driving, or the result of guilty is set to Danger, and for determining whether a crime or attempted crime has accomplished significant impact, unfortunately, not theorists now have a relatively consistent view. Finally, if the dangerous driving provisions of the crime, then it and the Crime and to the crime of endangering public safety issue has become how to reconcile the The view that, due to China's criminal law to the crime of endangering public safety and the Crime of the lack of a transition between the charges, it should follow the example of Japan and other countries to establish a convergence of charges, namely the crime of dangerous driving, another point of view that the judicial practice of dangerous driving behavior can in a dangerous way to the crime of endangering public safety and the Crime of the digestion, there is no need to set the charges in the criminal law. I believe that the Criminal Law Amendment To learn from foreign criminal law, the danger set to a separate driving offenses, the fundamental purpose is the protection of legal interests trying to advance regulation, but we should clearly see that the foreign law in the transport of dangerous driving provisions and administrative regulations in this offense, and that these countries are to offense under the penalty is a fine and imprisonment more, compared to China's Criminal Code provides that the narrower, provided only that those with very serious social harm behavior, the behavior of such dangerous driving is not appropriate to write the Penal Code, even if the provisions of this offense in the Penal Code, also in the theory is relatively mature, more adequate theory of reserves on the basis of which, as mentioned above, this conditions are not met, so I think in the establishment of such a criminal offense, can only say is a violation of criminal law legislation, and scientific requirements, or even a kitsch of the unwise.

Criminal law scholars recognized the role of criminal law is not a panacea, criminal law, because of its inherent severity and the magnitude of deprivation of legal interests, criminal law should be tightening its control range, the Criminal Code should be Modesty so-called criminal Modesty, generally refers to use other means of legal or social regulation of other regulatory actions, not criminal law as much as possible means to regulate. Links to free download http://www.hi138.com can be said that has long existed in ancient China to the criminal law important ideas, for example, the ancient 'prudent punishment "thought in our traditional criminal law to occupy an important position till modern times, the criminal law Modesty more unprecedented attention. famous Japanese criminal scientist Professor Long Ye Ping, said:" Modesty doctrine of criminal law contains three meanings, the first of the criminal law of complementary, even if the public safety issues, and only if other means, such as habits, moral sanctions that informal social control of regional or civil regulation is not sufficient to launch a criminal law, for example, traffic accidents of life, physical abuse, is a major social problem, the applicable penalty will have an effect, however, the driver and pedestrians by increasing the level of ethics and technology improve road and lighting equipment received will be even greater effect to prevent accidents. The second is the integrity of the criminal law is not if, as above that has the complementary nature of the criminal law, then launch a criminal case is naturally incomplete The third is the criminal law of tolerance, or respect for sexual freedom can be said that even if public safety violations, other means of control is not fully effective, there is no need for criminal punishment without omission in modern society, people are not more or less invasive of another can not survive, therefore, must be mutual tolerance of each other to some extent a violation if all the violations are prohibited, but is easy to impede the freedom of the individual activities. " ⑤ China's criminal law scholars of criminal law are also many expositions of Modesty, for example, Professor Chen Xingliang said: Modesty is the criminal law, "legislators should seek to minimize expenses - even less without penalty (but replaced with other penalties measures to maximize the social benefits - effective prevention and anti-crime ". ⑥ Obviously, Professor Chen Xingliang from a criminal point of view of criminal law legislation Modesty to be defined. Another scholar from the perspective of the criminal justice What point of view of criminal law criminal legislation Modesty were discussed, for example, Dr. Ye Huijuan said: "Modesty is essentially criminal law criminal law is based on the complementary nature of the intrinsic and economic provisions of the Criminal Code of the people involved in their own lives, fulfill the function of necessity, proportionality and effectiveness of a self-restraint and restriction mechanism, the criminal law and all relevant criminal behavior must follow the basic idea ". ⑦ I think, criminal law and criminal legislation Modesty is not just should be the basic norms of criminal justice. The Criminal Law of the specific content, although different scholars have different discussion, but now generally believed that the criminal law Modesty consists of three requirements, one is a limited criminal nature, the other is the forced nature of criminal law. The third is the criminal law tolerance accordance with the author's understanding of the limited nature of the so-called criminal law criminal law's reach is not too spread out, although adjustment of the Criminal Code with the greatest breadth of social relations, However, adjustment should be limited to only those with very severe degree of social harm behavior, from the point of view on the level of criminal legislation, criminal law amendment under the dangerous driving behavior is not yet meet this requirement so-called criminal law, forced sex, is as long as the exhausted all other legal means of control is still not enough to inhibit an act to protect the legal interests of a serious shortage of time, can consider using criminal means. From this perspective, I think, dangerous driving behavior, although a certain degree of social harm , but as long as the perfect transportation and administrative regulations, and increase the intensity of the administrative regulation to curb such behavior is entirely possible, if we gave the benefit of the law of administrative measures to protect the front is ill conceived. The author also believes that in criminal law provisions in the act of dangerous driving and give up administrative regulations to intercept the traffic administrative depArtments of the criminal law is the universal theory of ideas at play, is an irresponsible act of shirk, this is clearly not conducive to problem solving, will only lead to more social problem. criminal tolerance is even some degree of social harm has a serious behavior, criminal law should also be the attitude of tolerance, not as long as there have been acts of infringement of legal interests, in a hurry to use criminal means. I think, provisions in the Penal Code the crime of dangerous driving, it would improve traffic conditions, to increase driving safety and driving standards of ethics education more effective. In short, from the perspective of the Criminal Law, Criminal Law in additional crime of dangerous driving is not wise.

Now, let us briefly examine into the sentence if the crime of dangerous driving, whether judicial action on the convenience and feasibility in terms of the provisions of the Criminal Law Amendment, I will ask the following questions: First, what is drunk driving? drunken driving and no specific degree requirements? and drunk driving has a considerable degree of harmful drugs or drug taking calm after driving do? if interpreted as drunk driving, is there analogy to explain the suspect? Second, the pursuit of competitive driving a snack? whether it is necessary for an accomplice? third, from the perspective of evidence, evidence of how the pursuit of competitive drive to collect and fixed? fourth, such as dangerous driving causing serious harm of the real consequences of how treatment? is identified as the Crime or to the crime of endangering public safety? Thus, the specific operational from the judicial point of view, to establish in criminal law crime of dangerous driving industry has a considerable problem. In short, both from the criminal legislation rigor and internal requirements, or from the Criminal Law of the operation and to facilitate judicial point of view, should not be in the penal code the crime of dangerous driving, dangerous driving charge should be aborted.

References:
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[2] Jiang Zhaoqi. On the "dangerous driving" conviction investigation [J]. Heihe Journal, 2009 Ninth.

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[4] Yuan Liu. Dangerous driving to explore the issue of criminal responsibility [J]. Law Forum, 2009, sixth.

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[7] Ye Huijuan master's thesis. On the Modesty of criminal law, Zhengzhou University Law School in 2003, India. Links to free download http://www.hi138.com