Research On "Death Caused By Escape" In The Crime Of Traffic Accidents

Since the invention and use of motor vehicles,the incidence of traffic accidents has been at a high level,which poses a serious threat to the personal and property safety of citizens and is one of the sources of risks in modern society.Therefore,the crime of causing traffic accidents in the criminal law is also called "the king of negligent crimes" because of the frequent and complex accidents.Although the crime of causing traffic accident has undergone several major revisions in order to better regulate the crime of negligence,to adapt to the development of the times and to better cope with the complex situation in judicial practice,the crime of causing traffic accident has undergone several major revisions before appearing as the current content of Article 133 of the Criminal Law.In order to resolve the application disputes,the Supreme People’s Court also issued the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Traffic Accident Cases,with the intention of regulating conviction and sentencing and settling disputes.But unexpectedly,the judicial interpretation has brought more theoretical and practical disputes,especially involving the definition of the connotation of escape,the nature of death caused by escape,and the determination of subjective guilt.Although there are a lot of relevant research works on the crime of causing traffic accidents,due to the defects of the provisions of the law and the limitations of the basic theory of traditional criminal law,the relevant debates have been inconclusive.Therefore,the author hopes to take the "death due to escape" in the crime of traffic accident as the starting point,starting from the problem of "point",and discuss the relevant topics of "death due to escape" in an in-depth and comprehensive manner.diverge.The so-called "conclusion" is not sought,in order to reach a systematic and logically self-consistent conclusion in line with dogmatics.In addition to the introduction and conclusion,the main body consists of five chapters.The specific contents are as follows.The first chapter defines the connotation of escape in the crime of causing traffic accident.Determining the connotation of escape is the first problem to be solved in this paper,because the connotation of escape determines the specific situation of the establishment of hit-and-run,and then determines the scope of establishment of death due to escape.For the identification of the circumstances of hit-and-run after a traffic accident,judicial practice presents a chaotic situation,and there are differences in the meaning of escape in theory.Examining the legislative evolution of the crime of causing traffic accidents,we can see that hit-and-run is not an aggravating circumstance in the original legislation,but has been gradually included in the evaluation category of criminal law under the popularization of motor vehicles and the development of society.The increase of hit-and-run after a traffic accident can be said to be entirely inspired by judicial practice,administrative regulations,extraterritorial legislation,and a requirement of criminal policy,and is a passive move to deal with frequently-occurring situations in social practice.Therefore,in terms of logical structure,the "escape" plot always reflects the dilemma that it cannot be integrated with the crime of causing a traffic accident,and it is difficult to systematically interpret it.This paper argues that,if the purpose of aggravating punishment is interpreted in the direction of respecting the original intention of the legislation,although the situation that can be identified as escape is the most extensive,it conflicts with the systemic logic and is still suspected of being unconstitutional.Therefore,under the premise of considering the basic position of criminal law and the logic of dogmatics,it is necessary to define the connotation of escape and limit the identification of hit-and-run escape.When determining the meaning of the constituent elements,which interpretation method is used will affect the interpretation result,and the value orientation will often affect the choice of methodology.Although there are doubts about the method of purpose explanation,it is undeniable that it does have certain defects naturally.However,under certain conditions,the interpretation conclusion is more in line with the value of modern criminal law and has certain rationality.Therefore,this paper argues that purpose explanation needs to be completed under systemic constraints,in order to prevent the expansion of purpose from leading to the expansion of analogical explanation and the scope of punishment.Therefore,the definition of escape connotation needs to consider the following factors at the same time: First,the scope of normative connotation of escape should be defined in combination with the normative purpose of the crime of causing traffic accident and the protection of legal interests.Second,it should conform to the literal expression and conceptual logic of Article 133 of the Criminal Law.Third,it should be based on the orientation of the situation and policies,but it should not be contrary to the value of the relevant departmental laws,and it should be consistent with the value orientation of the constitution.The normative purpose of escape also has debates on ensuring criminal prosecution,protecting the victim’s right to life and health,and protecting other interests when understanding is limited.Therefore,it is necessary to determine the normative connotation under the constraints of the system.The purpose of protection of criminal law norms is of course to protect the legal interests of criminal law,and behaviors that do not infringe on legal interests do not have criminal penalties.Under the leadership of protecting legal interests,this paper argues that aggravating punishment for escape behavior is mainly to avoid the danger of infringing the victim’s life and health and legal interests,and ensuring civil and criminal liability is not the purpose of criminal law.Therefore,escaping when the injured person has been rescued or there is no salvageable injured person has no justification for aggravated punishment,and should not be regarded as a hit and run after a traffic accident.At the same time,interpretation paths and conclusions must of course obey conceptual logic.Although the essence of escape is the omission of not fulfilling the obligation to rescue,the criminal law stipulates specific behaviors for it,and not any situation of non-rescue can be attributed to the behavior of escape.Therefore,under the limitation of conceptual thinking,the situation of not being rescued in danger without the characteristic of "escape" behavior should not belong to the situation of hit-and-run after a traffic accident.However,this article does not believe that the perpetrators who do not escape and do not rescue are not punishable.Based on the provisions of the law that "other particularly bad circumstances" and "traffic hit-and-run" are side by side,that is,there are other circumstances of the same nature besides "escape".circumstances”,it is not necessarily that there will be no penalty.Finally,this paper argues that the conclusion of the interpretation of norms ultimately reflects a game and choice between the persistence of the original intention of legislation and the transformation of normative values.The prohibition of escape behavior appeared earlier in administrative regulations.It can be considered that the legislative intention of hit-and-run after traffic accident is indeed the same as that of administrative regulations,and does not put the rescue of the injured in the first place.However,just as German scholars have debated the legal benefits of the crime of leaving the accident scene without authorization,and their evaluation of its value and significance has changed with the progress of society.The debate of Chinese scholars on normative purpose also shows that normative value orientation is not static,and legal language also gives space for the change of value evaluation.The second chapter analyzes the legal nature of escape behavior,and distinguishes different situations of escape causing death.According to different distinguishing criteria,there is an act and omission debate on escape behavior.From a purely ontological point of view,positive body movement in a physical sense would be evaluated as an act,while the normative criterion of distinction focuses on the nature and social significance of legal norms,leading to the understanding of norms that differ in the nature of behavior.The evaluation results are also different.Therefore,it is necessary to rethink how to distinguish between action and inaction,and to apply the criterion flexibly.This paper argues that,as long as it is not a complex type of action and inaction,general rules of thumb can provide criteria for distinguishing action and inaction in most cases.It can be said that in most cases we encounter,the combination of energy injection and causality can lead to a reasonable distinction.This standard can be expressed as,as long as the perpetrator does not inject energy in the direction of improving the state of legal interests,even if the victim’s physical health and legal interests are not improved,the perpetrator is inaction.Although the behavior of hit-and-run after a traffic accident is manifested as the "movement" of the body,the escape behavior is the injection of energy in the physical sense,but it does not guide,promote or strengthen a process,so escape is not a positive behavior in the sense of criminal law.At the same time,although escape is stipulated as escape from legal prosecution,on the surface it appears to be a prohibition of escape from legal prosecution,so it is considered a prohibitive norm.However,there are already infringed legal interests after the accident.At this time,the perpetrator should take corresponding measures to rescue the victim in a timely manner,reduce or eliminate the existing risks,and ultimately prevent legal interests from being further infringed.Therefore,a norm that does not allow hit-and-run can be evaluated as a prescriptive norm,ordering a specific individual with a duty to eliminate an existing danger.On the premise that the escape behavior is evaluated as inaction,the actor must have the obligation to act,so the source and content of the actor’s obligation to act are issues that must be explored.There are also many debates about escape as the source of obligations.In terms of form,there are two different perspectives: "the theory of legal provisions" and "the theory of antecedent behavior".Since this article supports the premise of the establishment of the basic offense of the crime of causing traffic accident,such an accident is a crime,and this article also holds a negative attitude to the view that the preceding behavior includes criminal behavior,so this article believes that the preceding behavior cannot be an escape.as a source of obligation.Although the legal norm as the source of the duty does have certain defects,but this defect is not irreparable,and taking the legal norm as the source of the formal duty also has its advantages,especially in the aspect of meeting the legal requirements of crime and punishment.Based on this form of advantage,and there are indeed relevant provisions in legal norms involving the act of escaping,that is,Article 70 of the Road Traffic Safety Law,this article believes that the act of "escaping" comes from legal provisions.However,taking legal norms as the source of obligations does not mean that all the obligations in the norms can be obligations in criminal law.The so-called source only gives a certain range of obligations in form,and then on the basis of the given range.On top of that,substantive judgments are also required to determine the final act as an obligation.Taking the purpose of protecting legal interests by criminal law as the principle,requiring the perpetrator to perform the obligation must be to prevent the occurrence of harmful results and damage the legal interests protected by criminal law,so the protection of legal interests is the core content of the obligation.This paper argues that among the obligations of action stipulated in Article 70 of the Road Traffic Safety Law,only the non-performance of the "obligation to rescue the victim" will inevitably infringe the legal interests of the victim’s life and health.That is to say,only the obligation to rescue is an escape in the sense of criminal law.as an obligation.In addition to the simple escape stipulated in the Criminal Law,the judicial interpretation also provides penalties for displacement and escape,requiring conviction and punishment for the crime of intentional homicide or intentional injury.Based on this,what is the relationship between the simple escape death and the displacement escape death and the crime of intentional homicide? It also needs to be further explored.This paper argues that,in the case where escape behavior is evaluated as omission,in addition to the fact that "simple escape" causes death,in addition to being identified as death due to escape,its essence is neither intentional homicide by omission nor obligatory abandonment.Aggravated consequences of sin.Because the omission to violate the duty of action is equivalent to the corresponding act of crime,it is obvious that the simple escape behavior is not equivalent to the intentional homicide,and the simple escape is not intentional for the victim’s death.mentality,so death due to escape is not a legal fiction of the crime of intentional homicide.The displacement behavior of displacement and escape should be evaluated as inaction.From the perspective of the entire behavior process of the death caused by the hit-and-run accident,the essential cause of the death result is the overall non-rescue behavior rather than the displacement behavior.Although displacement behavior has the physicality of action,it is not an intervening factor in the causal chain of hit-and-run,nor should we evaluate displacement behavior as antecedent behavior and ignore the existence of hit-and-run behavior.However,how to convict and send death by displacement escape requires further analysis,and it cannot be said that the content of the explanation is wrong.Because the different locations of displacement will lead to different degrees of dominance over the causal process,which will affect the conviction and sentencing of displacement and escape.Therefore,there is room for intentional homicide to be determined as omission if the transfer and escape cause death.If the perpetrator abandons or hides the victim who is completely incapable of self-help in an exclusive place,resulting in the death of the victim,the perpetrator should determine that it constitutes omission.of intentional homicide.The third chapter determines the behavioral structure of people’s death due to escape,and analyzes the nature of inciting escape behavior.Because of the provisions of the judicial interpretation,"escape" has been given a dual status,which is not only a requirement for conviction,but also a requirement for upgrading the statutory sentence.However,according to the analysis in Chapter Two,escape behavior is an omission in criminal law,and it increases the risk of the victim’s death,and has an independent form of crime.Therefore,this paper believes that the escape behavior should be evaluated independently,and it can be considered that the escape behavior is independent of the hit behavior,and the inaction and independent escape cannot be contained by the act hit behavior,that is,the escape cannot be a hit accident that constitutes an element of the basic crime.behavior is included.However,the judicial interpretation stipulates it as an element of conviction,so does the provision have no meaning or possibility of application because the escape behavior cannot be included in the constitutive elements of the basic crime? How this provision should be interpreted is the question.What needs to be discussed here is whether some of the aggravating circumstances stipulated in the criminal law can be reversed to satisfy the establishment of a basic crime to effectively regulate a certain type of crime? The answer is of course yes.Because my country’s conviction requires quality and quantity to meet the requirements,there must be such a situation,the aggravating circumstances are related to the basic crime,and there is no special unreasonable condition for its conversion into the establishment condition of the basic crime.In some cases where the degree of wrongfulness cannot satisfy the basic crime,if aggravated circumstances can be considered to make up for the lack of such a degree of wrongfulness,such aggravated circumstances will play a role in the establishment of the basic crime,and it can be evaluated as a basic crime.the constitutive facts of the crime.Based on this,this paper argues that escape as an aggravating circumstance can be evaluated as a constitutive fact of a basic crime.On the one hand,the legal interests it protects are the same as those of a basic crime,that is,the legal interests of the victim’s life and health,and the escape behavior stipulated in the judicial interpretation becomes a constitutive fact.A factual situation is a situation that can increase the degree of wrongfulness of a basic act.On the other hand,because the judicial interpretation stipulates that the establishment of a basic crime must meet the requirement of "quantity",the illegal degree of the increased harmfulness of escape also makes up for the requirement of the amount required for the establishment of the basic crime of traffic accident crime stipulated in the judicial interpretation.Formally meets the conditions for the establishment of a basic crime.Therefore,escape as an aggravating circumstance can in turn become a condition for the perpetrator to satisfy the basic crime.Based on this,it is necessary to solve the problem of how to evaluate the hit-and-run as an aggravating circumstance.First of all,although some commentators intend to interpret the non-rescue behavior after the accident as the crime of abandonment,the escape after the accident can be understood as the combination of the basic crime of the crime of causing traffic accident and the crime of abandonment.However,this paper thinks that the argument is unreasonable to urge the non-rescue behavior after the accident to satisfy the constitution of the crime of abandonment by expanding the explanation of the constituent elements of the crime of abandonment.This is because the legal interests infringed by the act of non-rescue after the accident is not the same as the protection of the crime of abandonment.The act of non-rescue protects the victim’s right to life and health,while the core legal interest protected by the crime of abandonment is the victim’s right to be supported in the family relationship.Therefore,hit-and-run cannot be assessed as a conjoint offense.Secondly,the particularity of escape as an aggravating circumstance does lead to it not being an aggravating factor of the result,nor can it be classified as an aggravating factor in general,so the hit-and-run escape can neither be evaluated as an aggravating crime of traffic accident crime nor a crime of aggravating circumstances.The result is aggravated offense.As an act of escape,which is independent of the basic elements,it cannot constitute the crime of abandonment,and there are no other independent crimes in the criminal law that can be applied.It is an important addition to the penalty selected by the legislation.Although it does not meet the constitutive elements of an independent crime stipulated in the criminal law,it has the necessity of independent evaluation.According to the theory of aggravated crime,the aggravating element is an act that is independent of the basic elements of the crime,but this independent act cannot constitute other crimes,and the law sets it as an aggravating circumstance rather than constituting an independent crime.crime.This paper argues that escape should be evaluated as an aggravating factor.The fourth chapter improves the result attribution of "death caused by escape".Because the essence of escape behavior is omission,the causality of human death caused by escape should also be analyzed and expounded based on the causality theory of omission crime.Firstly,we should explore the imputation types and principles of omission crime.The imputation theory of the result of death caused by escape should start with the analysis and selection of imputation theory.Because,from the perspective of ontology,omission is not the causal force of the result,and the actor essentially does not interfere with or prevent the development of the existing causal process,resulting in the harmful result.Therefore,from the perspective of social value evaluation,the structure of omission causality is different from that of act causality.Compared with the dual attributes of factual attribution and normative attribution of act causality,the causal structure of omission naturally lacks the part of factual attribution.Therefore,the causal imputation of value evaluation is the theoretical origin of the causal relationship of omission.Compared with the theory of equivalent causality and the theory of objective imputation,the latter is more suitable for the imputation of omission crime.On the result imputation of omission crime,the three-stage judgment mode of objective imputation theory can not only provide a qualified theoretical analysis paradigm for the final attribution of criminal responsibility,but also provide a feasible path for the clear punishability of omission crime.However,because the objective imputation theory was originally proposed for the crime of omission,some of its contents should be adjusted appropriately when applied to the crime of omission,the most important of which is to adjust the application of "risk not allowed by the manufacturing law" to "risk reduction theory".According to the risk reduction theory,the actor creates a certain risk for a certain behavior,but avoids the realization of greater risk,which is to reduce the risk.On the other hand,if the actor does not perform a certain behavior when he has the obligation to avoid the increase of risk,although he does not create any new risk,the actor chooses not to control the risk when he has the responsibility to control the risk,which is beyond the risk allowed by the law.This is the application of risk reduction theory in omission crime.Subsequently,it is also the key to determine whether the risks not allowed by the law are realized.The way of judgment is to exclude the non normative causal relationship between omission and harmful results.The first thing that should be excluded from the attribution of results is that even if we fulfill the obligation to actively implement measures to avoid the occurrence of results,we still can not prevent the occurrence of results,that is,as a situation of zero effect on the risk not allowed by the law.At this time,it can be determined that there is no normative risk correlation between omission and result,and the result attribution is excluded.The second is to exclude the situation that the result is not caused by the risk that the actor should maintain,that is,the occurrence of harmful results caused by abnormal intervention factors.If intervention factors block the risk correlation between inaction and results,it is possible to exclude the attribution of results to the actor.Based on this,first determine the scope of "people" who die due to escape.The crime of omission leads to the reality of risk because it does not reduce the risk,and omission can not promote the reality of risk.The act of causing an accident is an act of creating risks,and the performance of the obligation of rescue is to reduce or control the risk of the death of the victim caused by the act of causing an accident.The perpetrator did not perform the obligation of preventing consequences after the accident,resulting in the death of the injured caused by the act of causing an accident.Therefore,the object of death caused by escape should be the victim who died because the perpetrator did not reduce the risk.Therefore,this paper holds that the "person" in the death caused by escape should refer to the victim of the first accident,and the victim of the second accident caused by the perpetrator when he escaped does not belong to the "person" who died due to escape.Secondly,in the determination of "death caused by escape",the main investigation should be the possibility of result avoidance,that is,the possibility of the actor’s rescue.Because if the implementation of the expected behavior can prevent the occurrence of the result,it is possible to avoid the result.Therefore,if the perpetrator performs the rescue obligation,which is very close to determining that he can save the victim’s life,there is the possibility of result avoidance.At this time,if there is enough evidence to prove that the accident behavior has caused the victim to die,even if the immediate rescue can not save the victim’s life,there is no relationship between the victim’s death and non rescue,and the perpetrator has not caused the death result based on the obligation violation,so it can not constitute the death caused by escape.Finally,when the existence of "secondary rolling" affects the attribution of "death caused by escape",it is necessary to judge whether "secondary rolling" can cut off the relationship between escape behavior and death results,and then affect the attribution of results.The focus of the investigation is the possibility and probability of secondary rolling.At the same time,whose behavior plays a decisive role in the occurrence of the result is also very important.Accordingly,there is no doubt that the first accident directly led to the death of the victim.The death result belongs to the accident behavior of the driver in front of the vehicle,and the former perpetrator constitutes the crime of traffic accident.After the former perpetrator hit and run,it shall be handled separately according to the possibility and probability of secondary rolling.If the occurrence of secondary rolling is inevitable,the former perpetrator constitutes "death due to escape",and the latter perpetrator will not be investigated for criminal responsibility.If the occurrence of secondary rolling is accidental,the magnitude of the resulting force shall be attributed according to the former behavior and the latter behavior.When it can be proved that the death of the victim occurred under the absolute influence of the former actor,it should be considered that the former actor constituted the death caused by escape.If the occurrence of secondary rolling is not normal at all,the former perpetrator will escape after causing a traffic accident.When the time of death of the victim cannot be confirmed,the principle of doubt in favor of the defendant should not be applied to exclude the result of imputation.The fifth chapter discusses the crime form of "death caused by escape".The debate on the crime form of "death caused by escape" is not only the core issue of analyzing the subjective crime form of traffic accident crime,but also a controversial and valuable topic involving the whole crime theory,and even promotes the way of seeking change to China’s traditional crime theory.Although it is generally believed that the reason why it is difficult to clarify the subjective crime of death caused by escape is the increase of escape circumstances,which leads to the fact that the crime form of the whole traffic accident crime is no longer simple,or the fact is difficult to judge compared with the relatively clear criminal law norms.However,the fundamental reason for the dispute over the subjective form of crime of causing death or traffic accident due to escape is that the single form of crime and the determination of crime in China’s criminal law theory implement the overall analysis method.Because the whole analysis method takes the identification of the crime endangering the result as the core,and emphasizes that there is only one form of crime in a whole crime.Therefore,when dealing with the administrative crime with complex objective constituent elements such as traffic accident crime,the overall analysis method will show some deficiencies,such as the inability to achieve the accuracy of criminal responsibility,and it is easy to ignore the sin of objective constituent elements other than harm results.Therefore,based on the reference and amendment of the compound crime theory and the reference and application of the element analysis model,this paper recognizes that the crime form of all objective constituent elements of each crime is not single,and each objective constituent element has its corresponding subjective elements.In addition to the subjective crime of the result element,the crimes of other objective elements also have certain value in the sense of self responsibility.First of all,we should revise the theory of compound crime.Although the form of compound crime does not completely break the traditional analysis mode of the whole crime,it recognizes that the perpetrator can have two forms of crime for an objective constituent element,or that the recognition of intention and negligence is not binary absolute,and acknowledges the existence of fuzzy form of crime,which solves the difficult problem of distinguishing indirect intention from overconfident negligence.However,it is a pity that the theory of compound crime does not reflect and break through the integrity of the object of crime and the opposition between different crimes on this basis.Therefore,this paper believes that the modified compound crime theory emphasizes that the form of crime of some consequence elements can be intentional or negligence,but the intentional implementation of behavior and the result is negligence.The subjective form of crime of behavior and result has evaluation value.Then,we can use the model of factor analysis for reference and application,because the theoretical basis of the mode is to deny a single form of crime.The constituent elements are divided into behavior elements,result elements and situation elements,and each constituent element will correspond to the crime elements.On the basis of not changing the content of China’s current criminal law,the elements of crime can be divided into direct intention,indirect intention,overconfident negligence and negligence according to the provisions of the general provisions of criminal law.Each constituent element of a crime should have its corresponding crime element,not limited to the result element.If the actor’s subjective state of mind is not the due crime of the objective constituent element,the actor is not critical for the objective constituent element,which will affect whether the actor can constitute a corresponding crime.Based on this,when analyzing the subjective aspects of traffic accident crime,the subjective sins of behavior elements and result elements should be evaluated.As an independent behavior element,hit and run should have its own corresponding form of crime,that is,intention,and the intentional attribute of this element will not affect the form of crime of other elements.Although the subjective crime of escape after hit and run is intentional,it does not conflict with the subjective crime of death caused by escape,which should exclude indirect intention and only negligence.This paper holds that although it is indeed difficult to distinguish between indirect intention and overconfident fault,it is not impossible to distinguish,which cannot be the reason for judging it as a form of concurrent crime.Moreover,if the perpetrator escapes after the accident and holds an indirect intentional attitude towards the death of the victim,there is room to determine that it constitutes the crime of intentional homicide of omission.In terms of legal punishment,if the form of the crime of death caused by escape is interpreted as including indirect intention,both indirect intentional death caused by escape and intentional homicide are intentional crimes,and there is a large gap between the legal punishment of the two.Just as those who support the theory of negligence and indirect intention criticize that negligence violates the principle of balance between crime and punishment,this situation also violates the basic principle of criminal law of balance between crime and punishment.On the c...