Incorporated Into Criminal Law Of “Drug Driving ”

The establishment of dangerous driving crimes,especially inserting the "drunk driving" into dangerous driving crimes,has made up for the defacts and shortcomings of China's criminal legislation for punishing traffic accidents,and has achieved good social effects.However,"drug drive" which is as harmful as "drunk driving" even the bigger has been delayed.In recent years,along with the proliferation of drugs and the explosive growth of car ownership,the number of “drug driving” cases has shown the trend of “Hangtang effect”.The vicious traffic accidents caused by “drug driving” are increasingly occurring,which seriously threatens the public way traffic safety.When the "drug driving" behavior does not cause harmful results,it can only be regulated by administrative means.However,the administrative means are mostly prohibitive and the punishment is small,the lack of sufficient deterrent is not enough to curb the frequently occurrence of "drug driving" behavior.Therefore,the "drug driving" behavior must be regulated by criminal law.This article is divided into five parts to elaborate on the issue of “drug driving”.The first part: an overview of the "drug driving" behavior.This part explains the "drug driving" behavior from two aspects.First,it defines the basic concept of "drug driving".The author thinks that "drug driving" that “drug driving” refers to the act of driving a motor vehicle after the drug addiction has not been quit or the perpetrator used the state-controlled narcotic drugs and psychotropic drugs for non-medical purposes.The second is the status quo and characteristics of "drug driving"."Drug driving" is a new social phenomenon,it has the status quo of drug addicts with large base,rapid growth,and increasing accident volume and it has the characteristics of recurrent,concealed and multi-hazardous.The second part: theoretical controversy and commentary on the "drug driving" sentence in the theoretical circle.There are two opinions in the theoretical circle on whether or not "drug driving" can be sentenced.Those who support "drug driving" have considered that "drug driving" has serious social harm;"drunk driving" into the punishment has achieved good social effects,"drug driving" should also be included in the sentence;the current relevant laws and regulations have defects,etc.Those who oppose "drug driving" into the punishment consider that it violates the non-criminalization trend,the social harm is abstract and it is difficult to specifically identify in the principle of violating the criminal law.The author reviews the reasons for the “drug driving” in terms of the modest principle of criminal law,the judgment of social harm and the development of modern drug detection technology to support the theory of “drug driving”into the punishment.The third part: the analysis of the necessity of "drug driving".This part explains the necessity of “drug driving” in three aspects.Fiest is that “drug driving” has serious social harmfulness.From the object of behavioral violation,“drug driving” violates public transportation safety.From the results of behavior,"drug driving" behavior is likely to cause vicious traffic accidents.From a subjective point of view,the perpetrators are intentional.The second is the defects of current legislative.The administrative law is mostly prohibitive for the "drug driving" regulations,the punishment is small and it does not play a deterrent role;The judicial interpretation of the criminal law is likely to result in unfair results of different judgments for the "drug driving".The third is it is in line with the purpose of penal prevention.Whether seeing from the effectiveness of general prevention or seeing from the effectiveness of special prevention,the “drug driving” sentence has the effect of reducing the occurrence of “drug driving” behavior.The fourth part: the legislative provisions and enlightenment of "drug driving" outside the domain.This part discusses the legislative provisions on "drug driving" in the two major legal systems countries and Hong Kong and Taiwan in China.Through the analysis of the legislative provisions of the above countries and regions,the author believes that China should first criminalize the "drug driving" behavior.Then for the "drug driving" behavior,a combination of administrative punishment and penalty punishment can be adopted.The administrative punishment takes "deduction,suspension or suspension of driving license" as the main punishment;The criminal punishment takes "sentenced and fined punishment" as the main method of punishment.In the end,China should establish a test standard based on saliva detection,with laboratory testing as the main body,and at the same time make clear provisions on judicial procedures.The fifth part: the legislative conception of "drug driving" in China.The author believes that the "drug driving crime" should be set up separately and placed under Article 133 of the Criminal Law as the second article of Article 133 of the Criminal Law.The specific provisions are:those who do not quit drug addiction or the driver who drives a motor vehicle after taking drugs shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention,and fined..Judging from the crime of "drug driving crime",the object of the infringement is public transportation safety,the objective aspect is that the drug addiction has not been quitted or the motor vehicle driver drives the motor vehicle on the road after taking drugs,and The scope of drugs prescribed in the Criminal Law is applicable to the current situation.The driving object and driving range are the same as the driving object and driving range of “drunk driving”;The main body is the general subject;The subjective aspect is intentional.The author agrees with the "concentration theory" as the conviction standard and at the same time,the author believes that "drug driving crime" does not apply probation.