Doctrinal Analysis Of Dangerous Driving Crime Of "Double Overtaking And One Danger"

The Ninth Amendment to the Criminal Law has greatly revised the relevant provisions of the crime of dangerous driving.On the one hand,it adds the types of acts constituting the crime of dangerous driving(this article calls it"double-exceeding-one-danger" type of dangerous driving crime),on the other hand,it expands the scope of the subject of the crime.It is necessary for criminal law theory to conduct a dogmatic study on the above issues,so as to provide necessary reference and reference for the accurate application of dangerous driving crime in judicial practice.The amendment adds two types of dangerous driving behavior,including "school bus","passenger transport" and "serious exceedance",which should be understood in substance according to the normative purpose of the provisions,and reflect the independence and relativity between the relevant provisions of criminal law and administrative law.Among them,the scope of "school bus" should not be limited to the compulsory education stage,but should not include the situation of empty school bus.The scope of "passenger transport" includes not only "black cars" which have not been qualified for operation,but also the transport behavior of persons who are not for profit by individuals and units.Severely exceeding the standard can refer to the relevant provisions of administrative law,but it should also maintain a certain distance.Dangerous driving crime is an abstract dangerous crime.The expression of "endangering public safety" does not mean specific dangerous crime,but plays a substantive restrictive function at the entrance of violation of transport management regulations.The modification of dangerous driving behavior types in the amendment of criminal law exposes various problems in the traditional pure intent theory.Comparing with this,the theory of compound offence is more reasonable.By comparing and analyzing the crime of illegal leasing,lending firearms,traffic accident,food supervision malfeasance and other crimes,the compound crime will not cause perplexity in the constitution of crime,nor violate the principle of crime and punishment compatibility.The amendment also includes the owner and administrator of motor vehicles who are directly liable as the subject of dangerous driving crime.The nature of this provision belongs to legal fiction,and its theoretical basis is not joint crime,but supervisory negligence.Supervisory negligence is not a joint negligence,but a kind of negligence competition.Supervisors bear corresponding responsibility for their own supervision and management negligence,which does not conflict with the provisions of joint crime in criminal law.As for the nature of supervisory negligence,three points should be made clear:1.The theoretical basis of supervisory negligence is the new negligence theory,not the new negligence theory.Therefore,the actor must have the concrete possibility of forecasting the harmful result,instead of the general "fear".2.For the supervisor's conduct,we should adopt the viewpoint of substance and adopt a cautious restrictive attitude towards his determination.3.There must be a causal relationship between supervisor's behavior and harmful results.If the relationship is interrupted by the intervening factors,the supervisor will not bear the corresponding responsibility for supervisory negligence.The above understanding is an important guiding basis for the correct application of the second paragraph of Article 133 of the Criminal Law in judicial practice.