Research Into The Legislation On The Crime Of Dangerous Driving

“Amendment to the Criminal Law of the People's Republic of China(Eight)” was formally put into effect On May 1,2011,which marks the criminal punishment on the behavior of dangerous driving.Under Article 133 of the Criminal Law,the crime of dangerous driving is the lightest accusation in our criminal code for now.Objectively speaking,the idea of "drinking without driving,driving without drinking" has gradually become popular among the people after the establishment of dangerous driving crime.Drunk driving and other dangerous driving behaviors have been well controlled to a certain extent and the road traffic safety and order have been effectively maintained.However,since the establishment of the crime of dangerous driving,its controversy and discussion in the theoretical and practical circles has never stopped,and the public is also highly concerned about this.In recent years,although the Criminal Law Amendment Nine and the relevant judicial interpretations of the Supreme Court and the Supreme Procuratorate have been promulgated successively to supplement and perfect the relevant issues on the determination of dangerous driving crime,the controversy on the justification and rationality of the criminalization of dangerous driving behavior is still not over.In judicial practice,there are many difficulties in identifying the crime.According to CNKI,there were still 94 academic papers dealing with the crime of dangerous driving published in 2018 alone.A charge,which has already been made into law for more than 7 years,is stipulated and modified twice in the amendment to the criminal law.It can be seen that the systematic study of the legislation of the crime of dangerous driving is not " heating leftover rice ",but a helpful attempt to reflect on China's criminal legislation through the study of individual crime.Accordingly,based on systematic study on the legislation of the crime of dangerous driving,this article intends to objectively analyze the causes and subsequences,legislative disputes and certification,legislative deficiencies and shortcomings of the punishment of dangerous driving,and finally put forward suggestions to improve and develop the legislation.It is mainly divided into four parts:Part ?: Legislative background of the crime of dangerous driving.To discuss the legislation of a crime,we must see the essence through the phenomenon.The phenomenon here is the background of legislation.That is to say,we should first study the reason of legislation.This part answers the legislative motivation and the legislative evolution of the crime of dangerous driving in our country in two levels.First,the punishment of dangerous driving behavior is the actual need to effectively punish the dangerous driving behavior causing serious traffic accidents.From a physiological point of view,dangerous driving behavior,especially drunk driving,has a certain causal relationship on traffic safety,which needs to be included in the scope of criminal punishment.The existing legal means are not enough to effectively resist dangerous driving behavior.According to the theory of “actio libera in causa”,such behavior should be investigated for criminal responsibility.Second,it briefly introduces the legislative evolution of the crime of dangerous driving in our country,that is,the Criminal Law Amendment Eight establishes the crime of dangerous driving.Based on many problems in reality,the charge is revised and improved again in Criminal Law Amendment Nine and relevant judicial interpretation.Part ?: Legislative foundation of the crime of dangerous driving.This part demonstrates the legitimacy and rationality of the dangerous driving behavior in three aspects.Firstly,punishment on dangerous driving behavior has highlighted the tension between the basic values of the criminal law: freedom and order.This paper holds that the value of freedom should be limited in order to better maintain social freedom and order in the legislative level of the criminal law.The establishment of dangerous driving crime conforms to the value orientation of criminal law.Secondly,the legislative guiding ideology of the crime of dangerous driving is discussed.This paper argues that the theory of risk society is not the legislative guiding ideology of the crime of dangerous driving.With the continuous development of economy and society,the risk and complexity of social life are increasing,and the requirement for criminal law to intervene in social life is also increasing,which has laid good foundation for judicial activism.Judicial activism is the theoretical inducement of punishment on dangerous driving behavior.Thirdly,the paper makes an objective analysis on the legislation and public opinion for dangerous driving.This paper holds that criminal legislation should fully reflect and express public opinion,but passion legislation and case legislation should be avoided in the process.It is necessary to filter the public opinion and set scientific limits for public participation.On the whole,the establishment of dangerous driving crime reflects the characteristics of public opinion in criminal legislation,but still suspected of passion legislation.Part ?: Legislative review of the crime of dangerous driving.This part systematically demonstrates the shortcomings in the legislative level since the establishment of the crime of dangerous driving in order to review the gains and losses of punishment on dangerous driving behavior.Firstly,the legislative model is misplaced.The legislative model of the crime of dangerous driving is not in line with the traditional practice of "both qualitative and quantitative" in the criminal law of our country,resulting in the perplexity of the application of the proviso to the criminal law and the miscellaneous types of criminal acts.Secondly,the definition of dangerous driving concept and terms is controversial.This paper interprets and reviews the key terms of conviction,such as "road","motor vehicle","drunk driving" and "race driving",found that the legislative concept of dangerous driving crime is not accurate,which can easily lead to the deviation of judicial cognizance.Thirdly,the scope of punishment for the crime of dangerous driving is narrow.Because of the single expression of the crime and the provision of the article is unclear,the crime has not included the equally dangerous act in the scope of criminal legal system.Fourthly,the penalty allocation of the crime of dangerous driving is not scientific,which has defects and deficiencies in the penalty function,the comprehensive effect of penalty and the inadequate and insufficient discretion of judges.Fifthly,it is found that the crimes of dangerous driving and traffic accident,dangerous methods of endangering public safety crime are liable to concurrence and conflict,which shows the deficiencies in the legislative accuracy and coordination of the "Criminal Law Amendment Eight".Part ?: Legislation improvements of the crime of dangerous driving.Legislative problems and deficiencies found through legislative review,part of which is due to academic controversy and needs to be clarified.Besides,common understanding should be established in the theoretical level;the other part is due to the imperfections in criminal legislation.As to this regard,five suggestions are put forward: Firstly,we should expand the types of dangerous driving crime,and bring drug driving and other acts with the same degree of danger into the criminal law.Secondly,we should expand the targets of the crime of dangerous driving,including the operators of motor vehicles,ships,trains and aircraft and other means of transportation.Thirdly,we should expand the criminal punishment for the consequential circumstances of dangerous driving crime,further improve the punishment of aggravated circumstances,or add a crime of death and injury caused by dangerous driving in addition to this crime,and allocate reasonable legal punishment according to the different results of dangerous driving.Fourthly,we should adjust the penalty settings for the crime of dangerous driving,add a penalty for revoking a certain period of driving license or forbidding driving for life,establish a criminal record elimination system,and allow a single fine.Fifthly,we should further improve the judicial interpretation,resolve the disputes in the process of law enforcement,achieve common understanding on law enforcement and realize the legislative purpose.