Drunken Driving Behavior Of The Penal Code

Drunk driving is very dangerous, so drivers should avoid such risk, meanwhile, it should be prohibited by laws. However, the punishment concerning drunk driving in legal practices is not universal. In some cases, it is declared as traffic accident crime. While in other cases, it is punished for committing harming public security crime by dangerous means. This result in such difference, that is, subjectivity of the former is a mistake and that of the latter is on purpose. The difference of the accusation results in the difference of punishment. The maximum punishment of traffic accident crime is fixed-term imprisonment, while that of the offense against public security is death penalty. In judicial practices, some drunk driving is punished for endangering public security, not for committing traffic accident crime. According to the relevant legislation of such cases, they are traffic accident crimes. But some drunk driving causes very serious consequence, if they are punished as traffic accident crime, it will be against the principle of suiting punishment to crime and criminal responsibility. So the decision in judicial practices is fully reluctant. However, the evidence of the drunk driver'intentional crime is not adequate if he is accused of harm public security crime by dangerous means. It is clearly formulated in the eighth Criminal Law Amendment that drunk driving is guilty of a crime, which is dangerous driving crime. It is explicit penal evidence used for attacking drunk driving. At the same time, it improves criminal legislation concerning drunk driving to some extent. Nowadays, there are the following ways to punish drunk driving, that is, if the result is not serious, it should be punished as dangerous driving crime. A little bit serious, punished as traffic accident crime. More seriously, it should be punished as harm public security crime by dangerous means. Dangerous driving crime is an intentional crime, traffic accident crime is a negligent crime, and by dangerous means harm public security is intentional crime. To punish in these ways is in accordance with the principle of suiting punishment to crime and criminal responsibility. Whereas, it is difficult to make a judgment in reality, for the subjectivity of the crime is inexplicit. The evidence of the subjective aspect of a crime is almost a kind of speculation in judicial practices. Theoretically, it is easy to judge what kind of crime it is, but actually it is full of difficulties because the consideration of the subjectivity is unavoidable. The judgment on subjective aspect of a crime seems to be that the judges are trying to speculate the cognitive psychology of the offenders when they are driving under influence, to make sure whether they may be aware of the consequence. What kind of will factor they hold, whether they are in a state of hope and indulgence, or credulity and even negligence. All these are what the judges have to find out. Judges always attempt to deduce the subjective aspects of the offenders from their behaviors. But in fact, the offenders often do not think that much while the drunk driving is going on. What they are thinking at the very moment does not completely apply with the analysis within criminal law in theory. The subjectivity of a crime contains cognitive elements and will factors, and the former is the basis of the latter. Owing to the fact that the will factors of the offenders are based on their cognitive elements, therefore, the cognitive elements should be considered first, and then the will factors in the process of analyzing the criminal subjectivity. Drunk driving is set as a dangerous driving crime independently, but theoretically, it is abstract potential damage. Abstract potential damage is a behavior that is prohibited by specific constitutive requirements because of a possibility that can bring serious damage to legitimate interests. To some extent, the application of abstract potential damage theory avoids the controversy of criminal subjectivity and plays an active role. As for the relations between criminal behavior and criminal result, the former cause the latter, they are cause and effect. Criminal behavior is an essential component of criminal constitution. And criminal real harm results are constitutive requirement of some criminal constitution, some are aggravated requirements. As for the understanding of criminal results, real harm directly demonstrates the features of harmful results, which make us comprehend harmful results easily. But harmful results should not contain dangerous results. In order to deal with drunk driving, we should aware the fact that the great difficulties in enforcing the law practically lead to no investigation and punishment of some drunk driving which constitute a crime and should take criminal responsibility out of high toughness of the task. And then authoritativeness of the Criminal Law is impaired. Thus, in judicial practices, the investigation and treatment should be strengthened, so as to control the happening of drunk driving.