On The Judicial Determination Of The Crime Of Dangerous Driving

On February 25,2011,the Nineteenth Session of the Eleventh Standing Committee of the National People's Congress of China deliberated and adopted the Amendment to the Criminal Law(8).Since then,the crime of dangerous driving has been formally sentenced to prison.It includes two kinds of situations,one is drunk driving a motor vehicle,the other is chasing a race on the road.With the promulgation and implementation of the Amendment(9)to the Criminal Law of our country,there are two additional situations in the two cases of dangerous driving crime: one is taking school bus and passenger transportation as occupations,and the other is taking dangerous chemicals transportation as occupations.In the course of driving,the other is not abiding by the safety management of dangerous chemicals.Provisions,while causing damage to public safety.In the latter two dangerous driving situations,not only the driver should bear criminal responsibility,but also the owner and manager of the motor vehicle.Although both amendments add and adjust the crime of dangerous driving,to a certain extent,they improve the penalty system and meet the needs of judicial practice.However,since the implementation of dangerous driving crime,there are still some problems in its judicial determination.When analyzing the crime,we should combine the four elements of the constitution of the crime.The main body is the general subject.The "owner and administrator" of motor vehicles only refers to the natural person,which excludes the possibility of unit crime.If the owner and manager of the motor vehicle is the unit,and the implementation of the crime depends on the decision of the unit's decision-making body,then when convicting and punishing the motor vehicle,the actual natural person must be investigated for responsibility,but not the unit.If part of the perpetrators do not reach this level in this type of joint crime,then this part of the perpetrators also constitute the crime of dangerous driving.The subjective criminal intent of this kind of "accomplice" is not only limited to the prior intention contact,but also should be recognized as a joint crime for the formation of the intention of accomplice in the event.If the joint criminals subjectively carry out the intent of violating the crime separately and conspire in advance,and there is a partial coincidence of the respective criminal acts,then a joint crime will be established in this crime.In the identification of "accomplice" in drunken dangerous driving behavior,the "co-drinker","co-passenger" and "wine supplier" should not be identified as accomplice,and should not be included in the scope of the criminal law.Otherwise,the scope of punishment will be excessively expanded,which does not meet the modest requirements of our criminal law and violates the principle of legality for a crime.The subjective aspect of the crime is intentional,which excludes the possibility of negligent crime.Because the negligent dangerous crime is not punishable,in order to constitute the crime of dangerous driving,the actor must be subjectively intentional,that is,knowing that the consequences of endangering public safety will occur and hoping or letting it happen,there can be no subjective fault.In the objective determination of the crime,the standard of "drunkenness" should be strictly determined in accordance with 80mg/100 ml,and individual special circumstances should not be considered.The determination of "bad circumstances" in dangerous driving crime of chasing and racing should be based on the difference of driver's subjective system and driving ability,road condition and weather,and on the principle of "subjective and objective consistency".In the crime of dangerous driving,"road" mainly refers to public transport roads,but it is not limited to public transport roads.Its essential feature is to allow the public and public vehicles to pass,that is,"public".The recognition of "school bus" should not be confined to the stage of transferring primary school and junior high school,but also include kindergarten and senior high school.The "empty school bus" belongs to a special state of "school bus".Even if it is seriously overloaded by serious speeding and carrying other articles,it can not be included in the scope of the "Nine Penalty" type dangerous driving crime."Buses"(overtime buses)should also belong to the scope of "passenger transport".At the same time,chartered passenger transport,tourist passenger transport,buses and small cars should also be listed as "passenger transport".Once serious overtaking and speeding occur,dangerous driving crime can be identified.In the confirmation of "transporting dangerous chemicals in violation of regulations",the term "transporting dangerous chemicals in violation of regulations" refers to the failure to comply with relevant laws and regulations,including the provisions for transporting vehicles before transportation,and the provisions for transporting dangerous chemicals in the permitted process.