Research On The Crime Of Dangerous Driving

The crime of dangerous driving is one of the hot crimes in theoretical research and practical application in China.Relevant statistics show that the crime of dangerous driving has exceeded the crime of theft.This thesis takes the conviction of dangerous driving cases as the research object,and studies the conviction of drunk driving type,chase type,double ultra type and dangerous chemical type.The thesis follows the ideas of putting forward problems,analyzing problems and solving problems.The full text is divided into five chapters,the first chapter is to analyze the common problems of dangerous driving crime,the last four chapters is to elaborate on the specific problems in each type of dangerous driving crime.Chapter one discusses the common problems of dangerous driving crime.The common problems discussed in this chapter are the controversy of the nature of dangerous driving crime and the reflection of the consequences attached to the penalty of dangerous driving crime.On the one hand,it sorts out the two opposing theories formed by the different cognition of the nature of dangerous driving crime,and puts forward that the nature of dangerous driving crime should be defined according to the specific types.On the basis of this,the identification standard and refutation of the danger were theoretically summarized and summarized,and the specific identification and rules of the dangerous driving crime of drunk driving,chasing,double ultra and dangerous chemicals were considered.On the other hand,the author reflects on the related problems related to the consequences of the criminal penalty of dangerous driving.First of all,there are three theories about the nature of penalty accompanying consequences in the academic circle,namely,the theory of administrative punishment,the theory of qualification punishment and the theory of security punishment.According to the analysis of the existing theories,the article thinks that the theory of security punishment is more suitable for the nature of punishment accompanied by consequences.Secondly,The manifestation of penalty accompanying consequence is non-penalty treatment measure.The various manifestations of penalty attached consequence further reflect the disadvantages of penalty attached consequence of dangerous driving crime.Finally,according to the sticking point of dangerous driving crime punishment accompanying consequences,the article argues that set of collateral consequences have a direct causal relationship should be taken to join points,accompanying consequences shall follow the principle of proportion,eliminate accompanying consequences of applicable object,cancel the system of "collective punishment" and set up a misdemeanor criminal record elimination system five aspects of measures,to eliminate the dangerous driving crime punishment accompanying consequences caused by the problem.The second chapter mainly focuses on the practical investigation and theoretical analysis of "one-size-fits-all" and "differentiated" standards of drunk driving dangerous driving crime,and explores the incriminating and incriminating paths of drunk driving dangerous driving behavior.This chapter includes three aspects: first,the examination of the identification standard of drunkenness.Type for drunk driving dangerous driving sin is in2011 through the "criminal law amendment(eight)" into the sentence,the author mainly happened after 2011 in eastern China,central China,north China region and southwest ten sentence documents as research samples,statistical regional drunk alcohol content of value in the case of distribution of relevant data,Since 2011,there has been a "one-size-fits-all" problem in the drunk driving crime of dangerous driving.According to "2013 projects" issued "about to handle criminal cases of drunk driving motor vehicle opinions on some issues of applicable law" and in 2017 the Supreme People’s Court sentencing guidelines of common crime,the provisions of the articles were selected in east China,central China,north China and southwest area of local rules and regulations,some standards of intoxication in statistical investigation,Relevant data show that there is still a phenomenon of "differentiation" in the identification standards of drunkenness."One size fits all" and "differentiation" are like a double-edged sword,with both advantages and disadvantages.Because of this,it is necessary to raise the question of the incrimination and the path of the incrimination of drunk driving behavior.Second,the examination of the path of drunk driving into and out of crime.This thesis discusses the advantages and disadvantages of the absolute standard theory and the relative standard theory.From the phenomenon of "differentiation" of the identification standard of drunkenness,this thesis summarizes the theories about the path of crime of drunkenness driving behavior in the academic circle,and comments on these theories.Thirdly,the path choice of the crime and the crime of drunk driving.According to the criticism of the above viewpoints,this thesis advocates the adoption of mixed criterion for the criminalization of drunk driving,that is,the criterion for the criminalization of drunk driving = the stratified standard of alcohol content value + the ability to prove unsafe driving ability by scientific methods and other objective factors affecting driving.The article chooses two ways to make a crime.One is to limit the establishment scope of drunk driving dangerous driving crime through substantial explanation,and internalize the proviso as the substantial requirement of illegality of the behavior.The second is to allow the abstract dangerous crime to prove that the act does not have the essential danger and then the crime.The third chapter is to solve the problem of the determination of chase dangerous driving crime and bad circumstances.There are three theories about the determination of chase racing,namely,the theory of mutual pursuit,the theory of mutual pursuit racing and the theory of individual transcendence.The first two theories both emphasize that the pursuit behavior must have prior intention,but the article thinks that without prior intention,transcendence alone can also constitute chase race driving.From the practical level,the factors reflecting the pursuit of competitive driving have diversity.These factors are directly related to the determination of chase and race,and the key is whether the determination of chase behavior is bad or not.The determination of bad circumstances is mainly analyzed from the judicial level.Articles collected 118 chasing type of dangerous driving crime cases,and put forward should be maintained if the circumstances are flagrant,be judge standard and way,and negative if the judgment standard and way,argues that if not only to consider the risk of the pursuit of itself,but also combining objective factors determine whether happened in the case of public risk.The fourth chapter is to solve the problem of clarification of the constitutive elements of the double ultra dangerous driving crime.This chapter includes three aspects: first,school bus and school bus business identification.According to the school bus safety management regulations "and" compulsory education law clearly stipulated in the school bus is to point to carry to receive compulsory education of primary and middle school students in the school bus,but in judicial practice,most of the school bus double super case by a children’s nursery school bus implementation,if for limited interpretation of the school bus,can cause a lot of crime to escape legal sanctions.The article believes that the scope of school bus identification should be expanded to explain,not confined to the bearing of compulsory education of primary school students,junior high school buses.School bus business and school bus is a different kind of concept,compared with school bus,school bus business is more exclusive,only to provide services for teachers and students in school.Second,the identification of passenger transport scope.There are some disputes in the identification of the scope of passenger transport in judicial practice,which is manifested in the contention of the qualification of passenger transport subject and the identification of special circumstances of passenger transport.The article holds that the qualification of passenger transport subject should be expanded,and the scope of passenger transport subject not only refers to the subject stipulated in road Passenger Transport and Passenger Station Management,but also includes unlicensed cars,online booking cars and city buses.Thirdly,the boundary between serious overcrowding and general overcrowding should be clarified.Our country’s law on road traffic safety rules generally overcrowded in speeding the standard percentage,judgment factors constitute the core of this crime is a serious one speeding,the severe double super case standard(try out)"regulation is serious speeding driving speed by more than 50% of the top speed,did not set specific values,causing serious overcrowding speeding standards become a practical problem.Based on this problem,the thesis suggests that the standards of serious overcrowding and speeding should be defined by combining the administrative regulations in the relevant traffic field,the magnitude of social harm of behavior,and the model,speed and road section.The fifth chapter is to solve the problem of identifying the crime of dangerous driving.It mainly discusses from two aspects: on the one hand,carries on the essential explanation to the constitutive elements.The crime of dangerous driving of dangerous chemicals is an administrative crime.The constitutive elements of this crime include administrative elements and normative elements,that is,violating the safety management of dangerous Chemicals and endangering public safety.The identification of administrative elements needs to be judged substantively from the content of relevant administrative regulations,and the constitutive elements of norms need to be explained substantively from the theoretical and practical levels.Endangering public security as understood by the article means that the perpetrator not only infringes on the life and body rights of non-specific or majority people in public places,but also needs to make judgment based on objective factors in specific cases.On the other hand,it discusses the judgment and connection between administrative illegal and criminal illegal.Concerning the judgment of illegality,there are qualitative difference theory,quantitative difference theory and qualitative difference theory in German academic circles.Since endangering public security is also the key factor to distinguish administrative illegality from criminal illegality,it is appropriate to adopt the view of quality difference.In the theoretical circle of Japan,there are differences of moderating illegality monism,illegality relativism and illegality pluralism.The moderating monism agrees that it is more reasonable to judge illegality under the principle of unity of legal order.