Problems And Perfections Of Legislation Of The Crime Of Causing Traffic Casualties

Crime of Causing Traffic Casualties is a sort of frequent crimes, which has lots of disputes in judicial activities, and shows so many controversies in problems about legal services. It desiderates particular research in terms of basic theories of Criminal Law. Since it appears numerous problems of this crime in both legislation and justice activities, and each side of theory circle has their own minds, this Thesis would like to proceed from actual legal needs, referred to the related justice explanations and regulations awarded by the Supreme People's Court. Analyze and discuss the main problems taken place in the Crime of Causing Traffic Casualties, especially in fields of understandings on subject of a crime and control of objective elements of a crime, and pay more attention to the understandings of"Hit-and-Run"and"death from Hit-and-Run".This Thesis cut-in through real activities of current Crime of Causing Traffic Casualties, and proceeds from specific cases within judicial activities. Make a deeper understanding of the Crime from its structures, theories basis and the most controversial problems at present, and finally found the ways of solving problems by means of offering, analyzing these problems. Thus, we can make a broad base of understanding of this Crime and fasten the Law Revision, in order to perfect the Legislation of Crime of Causing Traffic Casualties.The Criminal Law of P.R.C. Article 133 states the Crime of Causing Traffic Casualties"Whoever violates traffic and transportation laws and regulations thereby giving rise to major accidents involving severe injuries, deaths, or great losses of public and private properties are to be sentenced to not more than three years of fixed-term imprisonment; when fleeing the scene after an traffic and transportation accident or under other particularly odious circumstances, to not less than three years and not more than seven years of fixed-term imprisonment; when running away causes a person's death, to not less than seven years of fixed-term imprisonment."The Crime of Causing Traffic Casualties divides the crime into three levels of punishments, and the judicial explanation has all definite the regulations of chosen punishment of different levels. The establishing theory base of the Crime of Causing Traffic Casualties is"Trust Principle", which is a typical principle of compulsory distribution. It means when the doer is doing his behavior, if he could trust the victim or the third one is able to take the proper behavior, whereas the results was caused by the victim's or the third one's inappropriate behavior, the doer will not take the blame. The"Trust Principle"is German and Japanese Criminal Law's important theory to define the fault liability and accountability. The aim of"Trust Principle"is to qualify the fault punishment. It was formed gradually through the juridical activities of dealing with the roads traffic accidents."Trust Principle"was founded by reason of harmony the contradictions within the public lives, healthy, property security and social constructions, and reduce the extent of criminal negligence. Guide by the criminal policies of"lighten and rationalization of criminal negligence", limit the convictions of Crime of Causing Traffic Casualties and reduce the punishable extent, which is positive for the social development. Our national Criminal Law definitely represents the"Trust Principle"in legal explanation, and combines the Crime of Causing Traffic Casualties with accident liability together to justice. However, since it is start-up belatedly in our country, and is not unification in applied extension. However, as the society develops, the"Trust Principle"will be better used in the traffic accident cases.Within the disputed problems of Crime of Causing Traffic Casualties, hereby it discusses in three aspects:(1)The problem of the subject of a crime. The same meaning as whether or not the non-transportation person can be judged as the subject of a crime. It has different opinions in theory circle. And I would like to analyze my point in several aspects, which are, whether the non-transportation person cause an accident during abnormal transportation activities, could be convicted principle crime; whether the non-participant of traffic's participating behavior could be convicted principle crime; whether the doer violates traffic and transportation laws and regulations thereby giving rise to major accidents involving severe injuries, deaths, should be punished by Crime of Causing Traffic Casualties; and the matters of main competence of the traffic participants which are travelers of non-power-driven vehicles or passers-by. (2)The problems existing in the objective elements of the Crime of Causing Traffic Casualties. According to the analysis of the basic characters of the objective aspect of the Crime of Causing Traffic Casualties and the three kinds of opinions of the theory circle's thinking about whether within the"death from Hit-and-Run", the doer's subjective elements is intent or negligence, I conclude that the doer's criminal behavior of"death from Hit-and-Run"can only be defined as indirect intent, without negligence or direct intent. Additionally, my point is that it should be make differences among the criminal behaviors of traffic accident death causalities, if it is antecedence behaviors. (3)Issues of the Crime of Causing Traffic Casualties complicity. The Supreme People's Court states"after the Crime of Causing Traffic Casualties, it should be convicted as the complicity if the unit's governor, owner of the motor vehicle, the contractor or the passengers incites the doer"Hit-and-Run"and causing the death of victim because of non-rescue."This regulation arouses a lot of disputes in the theory circle. The negativist thinks that this regulation has broken the China's traditional theory of complicity. Due to our country's criminal theory and law, there will be no complicity existing in the negligent crime. Thus, it is a common sense in both of the criminal theory and practice circles that there is no complicity existing in the Crime of Causing Traffic Casualties. However, practically, it is necessary to punish this kind of action that circumstances are wicked and with particularly serious consequence. Whichever understanding of the regulation, it always comes to a contradiction that defines the complicity can only exist in the complicity which is on purpose.Due to the analysis and comparison for the problems, I will raise 3 self-opinions to revise the Crime of Causing Traffic Casualties: (1)It should be an independent crime of the"death from Hit-and-Run"."Death from Hit-and-Run"is a kind of intent behavior, and should not be judged as a aggregated consequential offence to the negligence behavior of the Crime of Causing Traffic Casualties, so it should be convicted as an independent crime. In domestic, it is positive that the"death from Hit-and-Run"should be divided from the Crime of Causing Traffic Casualties, but there are different opinions how to convict the crime. In my point, we should set up a"death from Hit-and-Run Crime". This legislation will solve the problem of the Joint Offence issue in the Crime of Causing Traffic Casualties death causality. The detailed Law Article of"death from Hit-and-Run Crime"will be address in the Thesis Text. (2)The unit should be conclude into the subject of the Crime of Causing Traffic Casualties. Even though the Criminal Law of P.R.C. has established the Unit Crime system, the subject of Crime of Causing Traffic Casualties is limited as the natural person, and the units could not be judge as the subject. Either in domestic or foreign countries, there are two opposite opinions about whether the unit can be judged as the principle subject of Crime of Causing Traffic Casualties. My opinion is positive and I think that the unit can be a subject of this crime. The Crime of Causing Traffic Casualties is a kind of negligent crime, and the essence of negligent crime is to obey the duty of care. All units of the society have duties to guarantee the social stability and development. As an important social unit, units should undertake the duty of avoiding dangers. To guard against the crimes, it is necessary to regular the duty of the units in criminal laws in such a fast developing society currently. (3)The punishment of the Crime of Causing Traffic Casualties should be perfected. By ways of adding more kind of classification of criminal penalties and combining with criminal fine penalty and qualification penalty. Criminal fine penalty will give not only the punishment function, but also the educational function which is more modest compared with Freiheitsstrafe; quialfication penalty mainly permanently or temporally deprive the right of driving vehicles. In a society at present which full of traffic accidents, add more kinds of penalties will better control and defend the crimes, otherwise, during the penalty being, it should differ the subject of natural person or subject of units and set-up heavy and light law's penalties for the drivers and non-drivers according to operational guilt and non-operational guilt.