Research On The Judicial Application And Legislative Perfection Of The Crime Of Dangerous Driving

In recent years, Heavy casualties and property damage cases whichcaused by dangerous driving behavior such as chase competition drivingand drunk driving frequently occured. Dangerous driving behavior has notonly become a hot topic of gossip, and also become the focus of controversyof theoretical and judicial practice circles in a time. Under thebackground, February25,2011, the19th meeting of the11th NPC StandingCommittee adopted “the eighth amendment to the Penal Code” and its22Section creat the additional133of the Penal Code, Just one of theprovisions on the crime of dangerous driving. At this point, China’scriminal law began to take dangerous driving behavior such as chasecompeting driving and drunken driving into the scope of regulation.This paper attempts to describe and analyze the following five parts:an overview on the crime of dangerous driving, relevant Concepts in thecriminal law provisions of the crime of dangerous driving, the subjectiveidentification and related issues of the crime of dangerous driving, thesituation which not constitute the crime of dangerous driving, criminallegislation improvement. And this paper ultimately provides sometheoretical supports for the judicial application and legislativeimprovements of the crime of dangerous driving.The first part introduces the legislative process and theestablishment reason of the crime of dangerous driving and points out thatthe crime of dangerous driving was established in the criminal law afterrepeated consideration and discussion. The establishment of the crime isnot legislators’ whim, but has sufficient reasons. Secondly, the sectiondescribes the overview of the foreign criminal legislation on dangerousdriving behavior and analyzes foreign-related legislation. Comparingwith the content of China’s criminal law on the provisions of the dangerous driving behavior, this paper argues that the foreign provisions ofcriminal legislation on dangerous driving behavior have followingfeatures: with a broad range of objective behaviors, subjective sindefined, statutory sentence comprehensive, with a wide range of penaltiesobjects.The second part is to analyze the concept which related to the penalprovisions of the crime of dangerous driving. This paper argues that theconcept "Road" in the penal provisions of the crime of dangerous drivingis totally the same as the spatial extent of the crime of traffic accidentin the situation of road transport. Its scope including road motorizedvehicles which are allowed in each unit. In addition, the “motorvehicle” is not limited to automobiles, but also including motorcycles,agricultural vehicles and other. Secondly, the “chase competingdriving” is different from the “drag racing” and “speeding”, and thevehicle used by “chasing the competition driving” is not limited to cars.Again, the “vile” should include12kinds of situations such as manypeople or repeatedly driving motor vehicles on the road to chase competingdriving. Finally, our judgment for the state of intoxication is anabsolute standard, but a combination of absolute standards and relativestandard may be more scientific and reasonable. In addition, the breathalcohol concentration testing results should not be used as the basis ofidentified of the crime of dangerous driving, we should take the resultsof blood alcohol content testing which is more accurate and credible.The third part of this paper is to analyze the identification of thesubjective aspect of the crime of dangerous driving and related issues.This paper argues that the subjective aspects of the crime of dangerousdriving should not be negligent and indirect intentional, but only forthe direct intention. In addition, the perpetrator is not necessary torecognize their actions has reached the degree of “vile”, and the realharm results lead to the subjective change of sins of perpetratordangerous is not inappropriate.The fourth part analyzes situations which not constitute the crimeof dangerous driving. This paper argues that although China’s criminallaw has not yet set up the elements of serious consequences of the realharm on the crime of dangerous driving, nor clearly defined hazardspecific state to constitute the crime of dangerous driving. It does notmean that as long as driving a motor vehicle to chase the competitiondriving or drunk driving a motor vehicle, it shall constitute crime ofdangerous driving. The crime of dangerous driving actually has twosituations which not constitute crime, including the object of the crimeand the saving clause of the Criminal Act of the PRC. If the dangerousdriving behavior does not cause any danger to the public safety of roadtransport, then it shall be deemed acts which did not infringe the objectof the crime of dangerous driving, so as not to constitute a crime. And even if the actions are consistent with all the constituent elements ofthe crime of dangerous driving, the judiciary can still identify “thecircumstances of the conduct are obviously minor and the harm is notlarge” and then decide the conduct does not consititute a crime,according to the saving clause of general provisions of the Penal Code13.The fifth part comments on the legislation perfection of the crimeof dangerous driving and put forward sound proposals. From the view ofthe coordination of the criminal justice system, this paper argues thatit is more reasonable to put the crime of dangerous driving after section114of the Penal Code, which is the crime of endangering public safetyin a dangerous way. Secondly, it is appropriate to only choose chasecompeting driving and drunk driving as objective behaviors of the crimeof dangerous driving at this stage. However, it is indeed a direction tomodify the objective behavior of the crime of dangerous driving in thefuture to take some other behaviors which are prominent and harmful tosociety into the scope of criminal law regulation. Finally, comparing withother countries and regions, the provisions of legal punishment of thecrime of dangerous driving in our country’s criminal law are too simple,so we should add the relevant provisions of the sentence of imprisonmentand qualifications in the provisions of legal punishment of the crime ofdangerous driving.