The Legal Analysis Of Mr.Xie's Traffic Accident Crime

In 1979, Criminal Law of the People's Republic of China is formulated the traffic accident crime. The New Criminal Law (1997version) made the significant adjustment to it. On November 10th,2000, the Supreme People's Court issued "the interpretations of concrete application of law on the traffic accident crime cases." Since 2004, the Law on Road Traffic Safety has the extremely vital significance in perfecting the traffic accident system. The author tries to analyze the traffic accident system through the problem in these specific cases. The paper states the legislation clauses in China, analyzes its shortcomings, and tries to put forward the proposals to improve it. This paper includes three parts.The first part:the first part relates the case simply. Xie Guangsheng drove a agricultural vehicle without license and made a kindergarten student to die. This case eventually was settled through the second trial. In this case, there are some problems, some judges have different views.The second part:the paper tries to analyze the problems by these concepts theoretically, such as the traffic accident crime, negligent crime, vocation negligent crime, and so on. According to the theory of Chinese criminal law, Traffic accident crime belongs to the negligent crime and it also attributes to vocation negligent crime, which is a part of negligent crime. The subjective aspect of negligent crime mainly includes the ability to pay attention and duty of care. Because Traffic accident crime attributes to vocation negligent crime, therefore its_duty of care should be the duty of care in business, which comes from laws and regulations. In this case, Mr. Xie engaged in the activity of driving, and he violated the duty of care in business. It caused a serious and harmful consequence to the society, and this should be a vocation negligent crime. The author also analyzes Mr.Xie's features of psychology and subjectivity in this case. It will be helpful for verifying the crime.The third Part:Reviewing the case. This paper mainly analyses the disputes existing in this case. It offers some measures to solve the problem from the following aspects. What is about the application of law, whether it is an incident, the measurement of penalty is light or not, what is about the evidence. This paper puts forward some ideas to the problems from this case. Taking the measurement of penalty for a example, aggravating the measurement of penalty on traffic accident crime. In some serious cases of traffic accident, "by the dangerous method harm public security crime" is drew into the judicial practice. It can remedy the defect on the measurement of penalty. As for the evidence-collection, Establishing a perfect, authoritative and special institution for inspection and identification. Setting up a mechanism which makes sure the witnesses appear in the court. Making a complete evidence chain comparatively. For the problem of rural road, the government should increase the management of rural road, and perfect the infrastructure of it. At last, the government must make the propaganda education of traffic safety in the countryside.