Research On The Crime Of Dangerous Driving

From the crime of dangerous driving crime constitution of “four elements” to explore, the object of this crime is public road traffic order and safety. The objective aspect of this crime, the cognizance of “road” should be based on “The law of road traffic safety” the 119 th in paragraph 1 of the provisions of item(1); The cognizance of “motor vehicles” in principle should be based on “The law of road traffic safety” the 119 th in paragraph 1 of the provisions of item(3), for fuel moped, old using car instead of walking, involving cars, secretly overweight electric(fuel power) the car, there is no specific provision in the law, such as vehicle, beyond the “road traffic safety law” the 119 th in paragraph 1(4) of the standard of “non-motor vehicles”, should be identified as “motor vehicle”; The cognizance of “drunk” should be in accordance with the “The applicable law about to handle criminal cases of drunk driving motor vehicle opinions on some issues” article 1 to define, should not be too much to consider the offender’s subjective motivation factors; The cognizance of “driving” need to meet the two essential elements: one is the vehicle controlled by free driver’s subjective will, two is the vehicle in the driving state; The cognizance of “chase race drive” should not be equated with commonly referred to as “racing”, but only refers to drive a motor vehicle in the road chasing target, competition of driving behavior, should not set the actor’s subjective purpose, the speed, whether two or more persons jointly implement qualification; the cognizance of Chase race drove“bad” scenes, should be comprehensive inspection, especially from the time, the amount of stretch, participation, passengers, vehicle speed, vehicle of special risk, whether there are other violations and whether harmful consequences, etc.The main body of this crime is general subject, including failed to drive legally qualified driving without authorization, the friends of forced vomiting-inducing toasts and sell alcohol operator should not be included in the scope of this crime for the time being. The subjective aspect of this crime should be deliberately, and only for indirect intent.In judicial practice, involving the crime of dangerous driving behavior with the issues, analysis of the crime of dangerous driving and the traffic administrative illegal behavior to distinguish; Type of drunk dangerous driving behavior is “into” without exception, from the perspective of the reality needs, legislative purpose, shall be in principle to convicted and punished the drunken driving behavior, but consider the scientific of judicial application, also should consider the specific case. Chase race drive type difficult to be“into the” dangerous behavior, mainly due to a lack of specific judicial interpretation, weak law enforcement forensics. The judicial organs should dealing with such cases probing to strengthen the guidance and increase the law enforcement power, to strengthen the construction of road law enforcement hardware facilities. This crime and related charges, the relationship between the crime of traffic accident, the crime of endangering public security with dangerous method, use correctly comparative analysis, firstly analysis the existence of the two crimes, and then accomplished patterns from, objective performance and subjective attitude, discuss the differences. The aspect of Crime number that involving imagined concurrence, collected a principle as “broken” from a heavy; Involved in, the existing judicial interpretation requires choosing a felony in broken, in this part, the judicial interpretation is not clear, still need to follow the combined punishment for several crimes. This crime as abstract dangerous crimes, because of its subjective aspect of indirect intent, so far only with its state, there is no criminal attempt and discontinuation. This crime does not exist an accomplice pattern for abetting driving behavior, for by one driving behavior is independent, so it is difficult to form a joint crime; To force the driving behavior, letting the escape behavior, because the law has no clear stipulation, that should not be condemned. Transposition package behavior, should be punished as crime of concealing the murder with alone; Common pursuit of competitive drive behavior, shall be convicted and punished respectively by the crime of dangerous driving.The legislative defects of this crime, mainly exists in three aspects: Firstly, the regulation behavior type, deficient only for drunk driving and pursuit of competitive drive two common typical convicted and punished for dangerous driving behavior, but not driving as“poison”, serious speeding, overloading, dangerous driving behavior of air and water is included. Secondly, the legal punishment is single, the only sure legal sentence- “criminal detention and concurrently be sentenced to a fine” too slow, lead to the judicial enough flexibility. Lastly, there are a lot of controversial factors about what is “drive” and “chase race drive” and “ vicious ” concept, the judicial practice are controversial, same crime different punishment phenomenon exists, detrimental to the justice of judicial authority. Perfect suggest three things: First, expand the scope of this crime regulation behavior type when the “criminal law” revised again, coverage of taking state control of psychotropic drugs or narcotics serious driving, speeding and dangerous driving behavior, in the field of water and air tight criminal networks. Second, increase the punishment of flexibility, amend the legal punishment for “shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention,” raise it again penalties, realize the crime punishment. Last, refine the judicial interpretation, especially for chase race specific comprehensive drive type of dangerous driving crime, the crime of dangerous driving trial into the content of the sentencing standardization, clear not to prosecute, probation, the judicial proof value of blood alcohol, such as important difficult points, promote the unified specification criterions for the conviction.