Comparative Study On Road Traffic Offenses Of China And Japan

Whether in Japan which the road traffic civilization known to the world, or in China which the overall road safety situation is not optimistic, road traffic offenses are serious threat to national personal and property safety which called society “cancer”. In order to effectively prevent and punish the road traffic offenses, both China and Japan made significant amendments for legislation related to the road traffic offenses in recent years. But by contrast, it can be found that legislation related to the road traffic offenses in japan is relatively more mature and complete, its annual number of deaths due to road traffic accidents is also far less than China. Stones from other hills may serve to polish jade. In order to make our country’s criminal law theorists and judicial practice to fully understand the legislative status of the road traffic offenses as well as the latest legislative developments in Japan and bring some enlightenment to the legislation of China, This paper aims at the basis of in-depth introduction to law system of road traffic offenses of Japan, Comparing the road traffic offenses of China and Japan from the legislative to the judiciary and from the theory to the practice. This paper is divided into introduction, body and conclusion of three parts. According to the contents of the layout, text divided into the following chapters.The first chapter is about the comparative study of the overview legislation of China and Japan on road traffic offenses. The road traffic offenses of Japan means the crime which use road transport or make the road transport as an object and violate the norms of implementation. Unlike Japan, our country’s crime and punishment can only be prescribed by the Penal Code, and the road traffic offenses violate public road traffic safety. So the road traffic offenses of China should means the crime which use road transport or make the road transport as an object and violate the Penal Code and violate public road traffic safety. Although the definition of road traffic offenses of China and Japan is different, but it can be divided into the crime which use the road transport and the crime which aims at the road transport. As the road traffic offenses which use the road transport are more in line with the traditional knowledge of road traffic offenses of general public, and the kind of road traffic offenses are also more common in the judicial practice, so the main research object of this paper is limited to such a narrow road traffic offenses. Furthermore, the main basis of this paper researches the type of road traffic offenses is that road traffic offenses have the basic characteristics of routine, numerous, dangerous and subject ordinary which is different from other types of crime. These basic features also bring fourth revelation to road traffic offenses of China and Japan on criminal legislation and criminal justice: First, we should insist on the criminal policy of combining punishment with leniency; secondly, the judicial handling of the program should be easy and quick; Third, we should implement special treatments to road traffic offenders; Fourth, the penalty phase of road traffic offenses should be appropriately forward. There are primarily following four points difference between the criminal legislation structures on road traffic offenses of China and Japan: First, our country adopts a binary punishing law system which strictly distinct road traffic crimes and road traffic offenses, Japan adopts a punishing law system which not distinct road traffic crimes and road traffic offenses. In view of this, we believe that our country should not learn from the actual legislation of Road Traffic Act of Japan which take drug driving and other offenses to be mass criminalization; Secondly, the Penal Law of China provides the crime of endangering public safety by dangerous ways which with a certain “reveal the nature”, the criminal law of Japan has no similar general offenses; the Punishment Act of Japan provides the crime of dangerous driving lethal wounds and the crime of quasi-lethal injury by dangerous driving which has the nature of Aggregated Consequential, the Penal Law of China has no similar general offenses. The road traffic offenses of China not only including the circumstances which causing casualties, but also including the circumstances which causing significant property damage of public and private, the road traffic offenses of the punishment Law of Japan only including the circumstances which causing casualties. There are mainly five points difference on road traffic offenses legislative changes between China and Japan: First, with regard to legislation amendment of road traffic offenses, the frequency of Japan is much higher than China in recent years; Japan’s legislative body start the criminal legislative amendments procedure primarily by the the direct appeals and requires from accident victims and survivors, China’s legislative body start the criminal legislative amendments procedure primarily by the recommendations from relevant state departments and the NPC, CPPCC members; Third, the number of new road traffic offenses of Japan are far more than our country in recent years, and the new road traffic offenses not only including risk crime, but also including real perilous; Fourth, Japan improves the legal punishment of existing road traffic offenses several times, our country do not make amendments to the legal punishment of existing road traffic offenses since 1997 in which the Criminal Code enacted; Fifth, the legislation on road traffic offenses amendment of Japan reflects the criminal policy of “Temper justice with mercy”, the legislation on road traffic offenses amendment of China is not reflected in the “mercy” side.The second chapter is about the comparative study of the basic legal meaning of the term on road traffic offenses of China and Japan. On the meaning of “road”, although the road traffic offenses of Penal Law of China and road traffic offenses of Road Traffic Act of Japan are required to place on the “road”, there are still four points difference on the definition of “road” between China and Japan: First, the Road Traffic Act of Japan which is the administration criminal law directly specify the meaning of “road”, our country define the meaning of the “road” in accordance with the provisions of the Road Traffic safety Law which is the administrative regulations. Secondly, in situation that the “road” which is identified by the state of relevant area, our country require the relevant area under the jurisdiction of the unit and allows public motor vehicles to pass, Japan do not make these limits; Third, in situation that the “road” which is identified by the state of relevant area, the Japanese judicial practice requires the use of the relevant region has actually passed by unspecified person or motor vehicle, our country only require the relevant area under the jurisdiction of the unit and allows public motor vehicles to pass objectively. Drawing on the actual legislation of Japan and combined with existing legislative requirements of China, this paper believes that one provision can be added in the fifth chapter of the General principles of China Penal Law, which describe “the meaning of the road”: “the‘road’ in the criminal law refers to the highway, urban road, or a specific place for unspecified people and motor vehicle to pass, including squares, public parking and other public places for passage to pass”. On the meaning of “the motor vehicle”, although bicycle and disabled wheelchair in our country driven by power unit also need to meet certain speed and size requirements, but it can either be driven by motor or gasoline. Among them, only the design maximum speed, empty quality, dimensions of the vehicle in line with national standards are not part of the scope of “motor vehicle” in road traffic offense. The bicycle, disabled wheelchair and walking aids driven by power unit in Japan can only be driven by motor and need to meet certain requirements of speed and size, these vehicles are not part of the scope of “motor vehicle” in road traffic offense. This paper thinks that whether “excessive” electric bicycle, motorized disabled wheelchair and other vehicles can be identified as “motor vehicle” is an administrative level issues, but whether people who dangerous driving these “excessive” vehicles can constitute the crime of dangerous driving belong to criminal level issues, judicial practice can not confuse these two different aspects of the problem. According to the current actual situation of our country, it is not proper to prosecute the people who dangerous driving “excessive” electric bicycle, motorized disabled wheelchair and other vehicles. From the perspective of improvement of Legislation, on the one hand, in view of our motorized disabled wheelchair according to national standard traveling faster, we believe that it should be included in the class of the “motor vehicle” in road traffic offense. On the other hand, in view of the conduct of dangerous driving ships, trains and aircraft is less frequent in our practice, this paper do not agree to make ships, trains and aircraft included in the class of the “motor vehicle” in road traffic offense. On the meaning of “driving”, there are mainly two points difference on the definition of “driving” between China and Japan: First, the Road Traffic Act of Japan clearly stipulates the establishment of “driving” behavior requires the driver has a subjective purpose that use the vehicles as a tool, but the establishment of “driving” behavior does not require the driver has a subjective purpose that use the vehicles as a tool in our country. Secondly, unlike the road traffic offenses of Japan does not exist preparation, abortive and other cease forms, the Calculated crimes in Penal Law of China exists preparation, abortive and other cease forms. Therefore, in addition to identify the set up standard of “driving” behavior, we also need to discuss the commence standard of “driving” behavior. This paper argues that China should take “the engine starts” as the commence standard of “driving” behavior which is constitute by dangerous driving and take “use the engine and move the car body” as the accomplishment standard of crime.The third chapter is about the comparative study of perilous road traffic offenses between China and Japan. The perilous road traffic offenses of China including dangerous driving offense and the crime of endangering public safety by dangerous ways(“Penal Law” Section 114). On the “drunk driving type” dangerous driving offenses, according to “Penal Law” Article 13 of China and the basic features of abstract Perilous, drunk driving behavior should not be all-incrimination. If the driver can disprove his drunken driving behavior does not result in actual danger of the state by preponderance of the evidence, the judiciary should not sentence the driver to crime according to “Penal Law” Article 13 of China. As the sentencing of the “drunk driving type” crime of dangerous driving is more complicated, and judicial practice is lack of detailed guidance standards regarding the sentencing of the “drunk driving type” crime of dangerous driving, it leads to the serious imbalance issue in the sentencing process. This paper argues that we can determine the starting point for sentencing within “a month to three months detention, and impose a fine of 500-2000 yuan” of drunken driving on the road. On the basis of the starting point of the sentencing, we can increase penalty amount according to road conditions, the driver’s blood alcohol content, driving style, vehicle condition and other facts of the crime which effects the constitution of “drunk driving type” crime of dangerous driving to determine the baseline sentence. Finally, we can increase or decrease the magnitude of the penalty based on the baseline sentence according to relevant judicial interpretation of the provisions of the aggravating circumstances and Lenient punishment stipulated sentencing guidance, and then eventually form declared criminal. In addition, as the sentencing of “drunk driving type” crime of dangerous driving is more complicated and the social harm and behavioral subjective vicious are relatively small, we should sentence people who meet the “less serious crimes” and other applicable conditions to probation and people who in line with “minor crime” and other conditions exempted from criminal punishment. On the “chase competing driving type” crime of dangerous driving, our judicial practice of “chasing the competition driving type” of dangerous driving cases investigated rate are relatively low is not because such behavior is not common in daily life or the class behavior is not harmful to society, but mainly because of the ambiguity caused by dangerous driving behaviors such characteristics as well as their own provisions of the Penal Law. Although the “chase competition driving” can only consist of two people or more, but driving at normal speed or low-speed may also constitute a “chase competition driving”. In addition, the plots that reflects public safety danger caused by chase competition driving behavior should all belong to the “plot” in “chase competition driving which has vile plot”. On the subjective elements of the crime of dangerous driving, if we consider the crime of dangerous driving as negligence crime, it would not only in line with the specification purposes of relevant provisions of the Criminal Law, but also in line with the basic provisions of the Penal Law concerning the form of subjective elements of the crime, while it would also being able to solve many theoretical problems, thus it would more appropriate. From the basic theory and basic characteristics of criminal legislation of China, the relationship between the crime of dangerous driving and traffic accident crime should be the coincidence of articles. The relationship between the crime of dangerous driving and the crime of endangering public safety by dangerous ways should be the exclusion of articles.The road traffic offenses with the nature of potential damage offense of Japan are provided by the Road Traffic Act, including drunken driving, class crimes of speeding class, class crime of driving without a license, class crimes of overloading. There are four main features of road traffic offenses with the nature of potential damage offense of Japan: First, the rage of crime is very broad; Secondly, legal punishment showing the characteristics of temper justice with mercy; Third, Japan use the legislation of negligence Potential Damage extensively and the legal punishment are relatively low; Fourth, the complicity of some crimes are made to be independent crime.Comparing the road traffic offenses with nature of potential damage offense between China and Japan, there are mainly there points difference between “drunk driving type” crime of dangerous driving of China and drunk driving offenses of Japan: First, the criterion of “drunken” state is different; Although both China and Japan recognize “drunk driving” behavior as a crime, but the “drunk” state is to be judged according to the actual state of the driver in Japan and the “drunken” state is to be judged according to the absolute value of the alcohol content in the body of driver in China. Secondly, the subjective element is different. The crime of dangerous driving of China is a negligence crime, drunk driving offense of Road Traffic Act of Japan is a intentional crime. The reason why this difference exists is that Japan does not need to explain the subjective of drunken driving offense by perspective of sin from the purpose of the criminal law provisions, besides, the differences between the definition of intentional and negligent standard of criminal law of China and Japan is another important reason. Third, the legal punishment is different. The statutory maximum punishment of drunken driving offense of Japan is much higher than the crime of dangerous driving of China, but as the drunken driving offense of Japan can be punished with fines of gold, so its statutory minimum punishment is actually lower than the crime of dangerous driving of China. Moreover, the vast majority of cases of violation of Road Traffic Act is to cover the anti-gold(administrative sanctions gold) in the judicial practice of Japan. Therefore, the penalty of the “drunk driving type” crime of dangerous driving of China is actually much more heavier than Japan. Because of this, the paper do not agree to add punishment of imprisonment in the provision of the crime of dangerous driving, and given the large number and minor nature of dangerous driving cases, this paper also suggest that the provision of the crime of dangerous driving should add “single fine” requirement. There are mainly four points differences between chase competing driving type” crime of dangerous driving of China and dangerous co-driving offense of Japan: First, the scope objective behaviors of the crime of joint dangerous driving offense of Japan are broader than that of “chasing competition driving type” crime of dangerous driving of China; Joint crime of dangerous driving of Japan including seven kinds of behavior that two or more persons to contact in case of driving a motor vehicle to travel lane, interspersed with serpentine road, chasing competition driving, ignoring the signals traveling around travel, swirl-type travel(traffic jams). And our “chase competing driving type” crime of dangerous driving including only one kind of behavior that two or more persons to contact in case of driving a motor vehicle with a mean chase competing driving. Secondly, the subjective of dangerous driving offense is intentional and exists the situation of complicity. The subjective of “chase competing driving type” crime of dangerous driving of China is negligence and not exist the situation of complicity. Third, there are no restrictive element of “vile” of crime of joint dangerous driving in Japan, while in order to limit the scope of the crime of dangerous driving, the “chase competing driving type” crime of dangerous driving of China set up a restriction element of “vile”. Fourth, the statutory maximum legal sentence of the crime of joint dangerous driving of Japan is higher than the crime of dangerous driving of China, but because the crime of joint dangerous driving can singly sentence fine, so it is lower than the statutory minimum punishment of the crime of dangerous driving of China.The fourth chapter is about the comparative study of real harm guilty road traffic offenses between China and Japan. The real harm guilty road traffic offense of China including the crime of endangering public safety by dangerous ways( "Penal Law" Article 115, paragraph 1), the crime of traffic accident and the crime of negligence of endangering public safety by dangerous ways. The "escape" behavior is not only convicted of the crime plot but also aggravating circumstances of the crime of traffic accident. Defining "escape" behavior as conviction plot of traffic crime reflects the characteristics of crime that quantitative plus qualitative, so it has a certain rationality. In view of the purpose of the specification or the literal meaning, the meaning of "escape" which is a sentencing of traffic crime should be wider than the meaning of "escape" which is a conviction plot of traffic crime. Escaping to avoid legal action during the handling of cases should belong to the "escape" of second tranche of legal punishment of the crime of traffic accident. For "complicity" issue of the crime of traffic accident, this paper argues that the relationship between people who instigate or force others drive illegally and the driver is not complicity, we can only use the theory of supervisory negligence to sentence them to the crime of major accident and the crime of traffic accident respectively. As the crime of traffic accident is negligence crime, the relationship between unit officers, motor vehicle owner, contractor or passengers and drivers is also not complicity. Moreover, due to the lack of basic behavior of the crime of traffic accident, unit executive officer, motor vehicle owner, contractor or passengers who ordered the driver to escape thus resulting in the death of the victim can also not constitute the crime of traffic accident alone. According to the current criminal legislation of China, this paper argues that people who instigation driver to escape thus causing the victim died due to lack of assistance should constitute the crime of harboring. But even sentence those who who instigation driver to escape to the crime of harboring, it is still unable to fully evaluate the social harm caused by their instigation. In view of the relationship between the crime of traffic accident and other crimes, since the subjective and object aspect of the crime of traffic accident and other crimes are different, the relationship between the crime of traffic accident and the crime of endangering public safety by dangerous ways, the crime of negligence causing serious injury, the crime of negligence causing death are all exclusion. As the object and subjective aspect of the crime and the incriminate standards are totally same, the relationship between the crime of traffic accident and the crime of negligence of endangering public safety by dangerous ways are the special statute and the general law of the clauses which is called coincidence of articles.The road traffic offenses with nature of real harm of Japan are mainly provided by the Punishment Law which is the particular criminal law. The crimes specifically including the crime of dangerous driving lethal wounds, quasi-fatal injury by dangerous driving and negligent driving causing casualties, negligent driving causing casualties and concealing or destroying evidence of their own affected by alcohol. Among them, the criminal legislation of the crime of dangerous driving lethal wounds has seven main characteristics: First, legislative amendments are very frequently; Secondly, legislative amendments presented “grueling” of the legislative tendencies; Third, the introduction of legislation in the form of aggregated consequential offense; Fourth, it provides a more comprehensive and objective behavior; Fifth, it sets special regulations limiting the scope of the subjective element; Sixth, the large-scale use of normative elements; Seventh, it sets the legal punishment of crimes refer to the crime of injury. The criminal legislation of the crime of quasi dangerous driving lethal wound has three main features: First, the requirements of subjective are relatively low; Secondly, the range of objective behaviors are relatively narrow; Third, it sets legal punishment of crimes in compromise way. The criminal legislation of the crime of negligent driving causing casualties mainly has four characteristics: First, the objective behavior defined as “negligent” driving behavior; secondly, the provision that “penalties are waived” is provided; Third, the establishment of the crime is in the form of “special charges and special charges”; Fourth, the provision of fine penalty is provided. The criminal legislation of the crime of negligent driving causing casualties and concealing or destroying evidence of their own affected by alcohol mainly has three characteristics: First, it takes “legal fiction” for the penalty of the act; Secondly, it takes a “atypical”combination of committed legislation; Third, it sets legal punishment refer to the magnitude of real and ought punishment before the crime is established.Comparing the road traffic offenses with nature of real harm between China and Japan, there are mainly fourth points difference between the crime of traffic accident of China and the crime of negligent driving causing casualties of Japan: First, the subject of the crime is different. The subject of the crime of traffic accident includes both motorists, non-motorists, pedestrians and passengers, while the subject of the crime of negligent driving causing casualties of Japan only includes motorists. Secondly, the objective behavior is different. The objective behavior of the crime of traffic accident is not only limited to the conduct of driving a motor vehicle, while the objective behavior of the crime of negligent driving causing casualties of Japan only limited to the conduct of driving a motor vehicle. In addition, people who constitute the crime of the traffic accident of China have to implement the objective of the act which violate the traffic regulations, and people who constitute the crime of negligent driving causing casualties of Japan only need to implement the behavior which called “driving a motor vehicle and slack the duty of necessary care” and do not need to violate traffic regulations. Third, the specific standards which constitute a crime are different. Causing serious injury to cause death or serious losses to public and private property in a major traffic accident are constitutive elements of the crime of traffic accident, the crime of negligent driving causing casualties of Japan neither requires the severity of injuries, nor requires property loss as constitutive elements of crime. In addition, except to cause real harm as a result of constitutive elements of the crime of traffic accident, the driver should be liable for the accident to a certain extent. The subject of the crime of negligent driving causing casualties of Japan has no such responsibility. Fourth, the legal punishment is different. Regardless of the plot of escape, legal punishment of the crime of traffic accident of China is heavier than the crime of negligent driving causing casualties of Japan. Therefore, based on the perspective of comparative law, this paper do not agree to improve the legal punishment of the crime of traffic accident. There are three major differences between the crime of endangering public safety by dangerous ways and the crime of dangerous driving lethal wounds of Japan: First, the objective behavior is different. The provision of the crime of endangering public safety by dangerous ways provides “other dangerous means”, thus the range of the objective behavior of the crime of endangering public safety by dangerous ways is actually broader than the crime of dangerous driving lethal wounds of Japan. Secondly, the subjective aspect is different. People who constitute the crime of endangering public safety by dangerous ways hold intentionally attitude for serious harm caused by their behavior, and people who constitute the crime of dangerous driving lethal wounds can only be negligence to serious harm caused by their behavior. Third, the legal punishment is different. As the subjective aspect is different, the legal punishment of the crime of endangering public safety by dangerous ways is much higher than the crime of dangerous driving lethal wounds of Japan. But this paper argues that the situation which the crime of dangerous driving lethal wounds of Japan regulate should how to convict and sentence in China is more worthy of our consideration of the issue. In contrast, regardless of the plot of escape, legal punishment of the crime of dangerous driving negligence causing casualties of Japan is heavier than China. Therefore, based on the perspective of comparative law, we believe that our country should further increase the crackdown of the crime of dangerous driving negligence causing casualties or serious losses to public and private property.The fifth chapter summarizes the inspiration and reference for China by comparing the road traffic offenses of Japan and China. On the one hand, the reason why there is chaos between the crime and punishment of the crime of dangerous driving accident is that the punishment for the crime of dangerous driving negligence causing accident is not enough according to the criminal law of China. Therefore, this paper suggests that we should achieve the balance of crime and punishment on the crime of dangerous driving negligence causing accident by the way of improving the law. According to actual legislation of China, it is inappropriate to learn legislative practice of Japan to add the crime of dangerous driving lethal wounds with nature of aggregated consequential. The modifying way which is more in line with the status of legislation of China is to make drunken driving, chase competition driving and other dangerous driving behavior as conviction plot and aggravating sentencing of the crime of traffic accident, thus to increase the penalties of the crime of dangerous driving negligence causing accident. On the other hand, there is no provision on the act that drunk drivers evade, obstruct blood alcohol test in criminal law of China. It is not conducive to the prevention and punishment of drunk driving crimes, even it may connive drunk driver to escape or implement other behavior to impede alcohol testing after accident happened. At present, the criminal law theory and judicial practice of China often sought by the rules of evidence to resolve the conviction hinder detection problems caused by the behavior that drunk driver escape and impede alcohol testing, but this approach is not reasonable and feasible. This paper argues that we can only strengthen the legal regulation for hinder investigation of drink driving cases reasonable and effectively by improving the relevant provisions of the Penal Law, while clear the compulsory enforcement procedures that the traffic police can take in Traffic Safety Act. There are mainly three points of specific suggestions: First, to add the crime of escaping and interfering blood alcohol test in the Penal Law; Secondly, to add the act of drinking again to be the conviction and sentencing plot of the crime of traffic accident; Third, to add the provision which clear the compulsory enforcement procedures that the traffic police can take in Traffic Safety Act. For example, traffic police can open the locks or cut car window glass by a simple rescue tools and other technical equipment.