Analysis Of Merit And Demerit Of Traffic Crime--Also On Enactment Of "Not-Saving Crime"

The law on traffic crime and relating jurisdictional interpretationbring about considerable divergence of theoretical ideas and disorder injudicial practice, which makes traffic crime the most problematic ones inthe present Criminal Law. This hinders the progress of the unity and ruleof laws. It is imperative to perfect the legislation, to settle disputes andto direct the practice. This thesis discusses the advantages and disadvantages of theexisting legislation, through comparative analysis, positive analysis andliteral analysis on the grounds of the theory of constitution of crimes, thetheory of negligent crimes, the theory of joint crimes and the theory ofcriminal omission. By qualitative analysis of "escape after the traffic",the author propose to enact "Not-Saving Crime" in order to evaluate itspecially. The author states detailed reasons for establishing this crimeand tries to research on its legislation system. The whole thesis iscomposed of four parts.Part one: Analysis on the advantages of the law on traffic crime.Compared with the former Criminal Law, the present Criminal Law isimproved in four aspects: first of all, the Criminal Law is moreapplicable, for the subject of crime is enlarged to general subject, insteadof being confined to the transportation personnel; secondly, thepunishment is more effective, for the scales are increased and maximumpunishment is aggravated; thirdly, "escape after the traffic" and"Not-Saving Crime", which often happen in practice, are emphasizedand particularly criticized; fourthly, it is underlined that crime andnon-crime should be distinguished on the basis of making 42responsibilities clear in order to avoid punishing too many. All thesemeasures meet the needs of judicial practice and are suitable to thesocial development. Part two: Analysis on the disadvantages of the present law ontraffic crime. Seven sections are set to analyze the defective orcontentious clauses, among which are: occupational negligence andgeneral negligence shall be distinguished when determining the statutorypenalty; regulations breaching the theory of constitution of a crime inthe jurisdictional interpretation shall be amended, such as to makesentencing circumstances the convicting circumstances and to sentencean unable amount to compensate both breach the Principle of Equality.Whether there are traffic crimes' accomplices is discussed emphatically,and the reasonableness of a traffic crimes' accomplice is expounded andproved. At last, a conclusion is drawn: what is stipulated in Article 5 inthe Interpretation does not constitute a crime of joint negligence. On thecontrary, what is stipulated in Article 7 does. It has to be considered adefect of legislation. On the questions, contentious both theoreticallyand practically, of "escape" and "escape causing victim's death", "theprinciple of subjective and objective uniform" is insisted in this thesis.The conduct of escaping from performing salvage responsibility shall beclarified and the death caused by "escape" shall only be caused bynegligence. What's more, the thesis proposes that the conduct of runningaway shall be established as a typical omission offense and it'snecessary to enact "Not-Saving Crime". Part three: Feasibility analysis on "Not-Saving Crime". Thereare three sections in this part. In jurisprudence, it is expounded andproved from the angle of man's social reason, the uniform of individualand social interests and the relationship between morality and law. Incriminal law, it is analyzed from the angle of the grounds of acting 43responsibility and the basic theory of criminal law. In comparative law,the necessity and importance to establish this crime is stated byinvestigating the existing legislation both in the continental law systemand the common law system and combining ancient leg...