Judicial Dilemma And Solutions Of Drunk Driving Crime In China

Ever since drunken driving has been included in the regulation of the Criminal Law by the Amendment(VIII)to the Criminal Law of the People's Republic of China,a lot of controversies have been arisen.After the implementation of this new law,the focus of the controversy varies from whether the behavior of drunken driving should be sentenced to the punishment of how to apply it accurately in judicial practice in order to crack down on and prevent the appearance of the behavior of drunken driving.In recent years,there are many problems in the judicial practices,such as the wide range of punishment,the inconsistency between incrimination and sentencing,etc.The emergence of such problems has influenced the effect of the crack-down-on and prevention of drunken dangerous driving.In theory,some complicated problems remain to be clarified;such as the doer's subjective mentality is still in dispute;the traditional dichotomy of dangerous criminal is not sufficient to fully evaluate drunken dangerous driving crimes and what is the due stance of drunken dangerous driving crimes? The solution to these problems above is of great help for the guiding role the theory plays in practice.At the practical level,with the threshold of alcohol content of the doers,the identification of motor vehicle and two kinds of “atypical” drunk driving cases as the breakthrough points,empirical studies will be conducted to investigate sample cases in high-risk areas of drunken dangerous driving in China,all of which is helpful for the finding of the application of the critical threshold of alcohol content in current judicial practice from numerous specific cases.The method of case analysis is helpful for finding the deficiencies in the current judicial practice from actual cases.At the same time,relevant suggestions are put forward to improve it so that better practical effect will be achieved.This paper contains more than 30,000 words excluding the introduction and the conclusion,which can be divided into five parts.Starting from the basic theoretical problems and then finding out the problems in the judicial practice by way of empirical study and case analysis,this paper aims to explore the ways to solve such problems.The first part clarifies the basic issues of drunken driving crime in China.Starting from the illustration of the nature of drunken dangerous driving crimes in China,this paper first solves the subjective aspects of the crime and then characterizes the behavior of drunken driving by taking reference to the concept of quasi-abstract dangerous crime.Based on the discussion above,this paper then discusses the punishment basis and the necessity ofpunishment for drunken dangerous driving in China.The academic circle holds the opinion that the crime of drunken dangerous driving belongs to the abstract dangerous category.However,the judicial practice and theoretical research in recent years found that it is not only characteristic of abstract dangerous crime,but also contains the features of specific dangerous crime.A third kind of classification between the two should be employed to fully evaluate it.The basis for penalty punishment for drunken driving behavior is built on this.As for the nature of quasi-abstract dangerous criminals for drunken driving behavior,it is clear and defined that drunken driving behavior is subject to criminal punishment.But at the same time,the restraint on the criminal law is still needed.The second part focuses on the research on the criminal standard of drunken dangerous driving crime in China.In this part,an empirical research is conducted to select a large number of cases in high-risk areas of drunken dangerous driving in China.Through this kind of research,the problems of drunken dangerous driving in judicial practice are found.The empirical research pays much attention to the following aspects: the judicial resource occupancy rate of drunken dangerous driving crime,the application of the threshold level of alcohol content in high-risk areas of drunken driving cases and the average value of blood alcohol content of all kinds of penalty doers.This empirical research is conducive to finding the balance point of the application of the threshold level of alcohol content in current judicial practices,and puts forward relevant judicial suggestions at the same time.The third part mainly focuses on the solution to the problem of the identification of motor vehicles in drunken driving crime in China.In the current judicial practices,the electric bicycles are generally regarded as the motor vehicles.However,there is a contradiction in terms of the identification standards and management norms of exceedingly-rated electric bicycles in administrative laws and regulations.In addition,as for the behavior of drunken driving exceedingly-rated electric bicycles,whether it should be regulated by the criminal law from the social harmfulness it brings or not is also worth questioning.If the exceedingly-rated electric bicycles are recognized as non-motor vehicles,how to deal with this kind of condition in judicial practice is also a question that needs to be answered.The fourth part concentrates on the two kinds of “atypical” drunken driving crimes in the current judicial practice.One is the overnight drunken driving behavior and the other is the behavior of drinking on the spot at the scene of law enforcement to avoid detection of alcohol content.In terms of the judicial application of overnight drunken driving cases,it isobjectively consistent with the formal requirements of the crime of drunken dangerous driving in our country,but the doers' subjective aspects in such cases are different from the typical drunken driving crimes.The judgment of this crime and that crime is not only the judgment of form,but also the judgment of substance.The fifth part illustrates another kind of “atypical” drunken driving crime,that is,the case of drinking on the spot.Such cases are more complicated than overnight drunken driving.At present,there are many controversies in the recognition of this kind of cases in academic circles.Its differences from typical drunken driving cases not only lie in the form,but also lie in the essence of drunken driving crimes in China.Theoretically,the doers may be presumed to be in the state of drunken driving before drinking,which constitutes a drunken dangerous driving crime and it is handled like this in practice.However,in essence,it is an act that hinders law enforcement activities and the judicial organ just cannot presume the facts before the occurrence of the act based on the doers' behavior.Therefore,the key to solving such cases should start with the subjective mentality of the doers and their objective performance,and then punish them for conviction.To sum up,in order to solve the current problems of drunken dangerous driving crime in China,theoretical revision should be started.Guiding the judicial practice with the reasonable theory is the only way to apply the legal provisions accurately into the concrete cases so that the judicial justice can be achieved.