Difficulties And Reflections On The Crime Of "drunk Driving" After Penalty

Since the "Criminal Law Amendment Eight" put the drunk driving into the sentence,the judicial practice did receive a crime to prevent drunken driving behavior of good results.But in the sin of crime,the theoretical and practical circles have a great controversy."Drunk driving type" dangerous driving crime is a crime or allow evidence? Whether Article 13 of the Criminal Code can be used as a "drunk driving" dangerous driving offense of the normative basis? If you can not use the Criminal Law Article 13,then the crime of limiting the way will be how to choose? These problems have seriously hindered the uniform application of this law by the local judiciary.The article from the "drunk driving" dangerous driving crime in the abstract risk should be allowed to prove,"drunk driving" dangerous driving crime against the crime of the normative way,"drunk driving" dangerous driving crime out of the specific program design three aspects to respond the dispute.The first part expounds the theoretical basis of the crime of "drunk driving" dangerous driving crime through the rationality of abstract danger."drunk driving type" dangerous driving offense is "all convicted" or "different treatment",the judiciary and theorists has different voices.First,the abstract danger is a constituent element,since it is a constituent element,there is a special circumstances in which the behavior does not cause the risk of public safety;Secondly,the abstraction risk in the "drunk driving" dangerous driving offense is the danger of presumption,and the danger of such presumption is the possibility of overturning in judicial practice by the concealment of the tangible legal interest;Thirdly,allow the permissibility of "drunk driving" of dangerous driving does not lead to confusion between specific and abstract dangers.Abstraction risk is based on the danger that has been established automatically,and there is a logical jump.Sexual danger requires the judiciary to judge the specific circumstances of the behavior at that time,the difference between the two key in determining the different ways.The second part revolves around the normative structure of the "drunk driving" dangerous driving crime.First of all,through comparing with the crime of traffic accident,dangerous way to end the crime of public safety and other similar violations of public safety and legal interests of the same type,clear the "drunk driving" dangerous driving crime in the criminal law of the sequence rankings in order to deeply understand the harm to public safety abstract the connotation of danger.Then,through the analysis of the concept of "drunk driving" dangerous driving crime in judicial practice,the paper analyzes the concrete connotation of "road","drunkenness" and "subjective responsibility".For the "road" connotation,I believe that the road should be "public" feature is to determine whether the behavior of the key to the risk of abstract;Followed by the blood alcohol content of the standard grasp,on the one hand the identification process problems may lead to the determination of alcohol content errors,and then the behavior of their own physical circumstances in specific cases will make "drunk" and the reality of the situation deviation;Finally,from the "drunk driving" dangerous driving punishment in the administrative law of the prototype,reference to the Anglo-American legal system in the subjective sense of responsibility in the "reckless" concept,that the "drunk driving" dangerous driving crime in the form of responsibility is not necessary to distinguish.The third part constructs the operability method of "drunk driving type" dangerous driving crime from concrete procedure."Drunk driving type" dangerous driving crime in the abstract risk is the result of criminal presumption,the criminal presumption caused by the prosecution and defense between the two sides of the burden of proof.The defendant must prove the presumption of fact that the abstract danger does not exist,the prosecution does not bear the burden of proof of this part of the facts,the court will certainly not take the initiative to review this fact.If the defendant does not prove that the abstract danger does not exist,the presumption of fact becomes the fact of the referee.Based on the weak position of the actual defense party,it is only the procedural operation space that makes the crime of "drunk driving" dangerous driving crime only if it is the "proof of advantage".