The Consideration Of Establishing The Crime Of Obstructing Safe Driving

With the development of social economy,and constantly improve the levels of national life.In the construction of spiritual civilization,however,progress is slow,to the detriment of the public transportation driver safety behavior,some even caused the worst effects on people.The case of "chongqing bus falling into a river" in 2018 not only seriously jeopardized public security but also had a bad social impact.Therefore,in January 2019,the supreme people's court,the supreme people's procuratorate,ministry of public security jointly issued the "about the punishment according to the obstructing the Safe driving of the public transportation to guidelines",although play a positive role,but the line is not clear,clear demarcations between crime and the across to the detriment of the safe driving behavior has not been strong punishment,also has many problems in the applicable law.Inaccurate charges apply,for example,obstructing safe driving behavior theory of crime of endangering public security with dangerous method is not appropriate,because the "other dangerous method" on the concept of enough to shake up the national emotion and legal order of security,in nature with the risk of serious injury or death on people,but obstructing safe driving behavior can not meet the above criteria;The judicial application is chaotic,the different sentences of the same case are obvious,some cases have abnormal sentencing,the circumstances such as light,mitigation is not clear,the broad application of probation and other issues,all need to be further standardized and improved.Therefore,the academic and practical circles are constantly calling for adding the crime of obstructing safe driving,optimizing the crime composition and sentencing.The purpose of this paper is to discuss the specific contents of the legislation of this crime,and hope that the criminal legislation can be strictly enforced to protect the public legal interests.Apart from the introduction and conclusion,the article is divided into five parts.The first part is the realistic reason of establishing the crime of obstructing safe driving.There are sufficient practical reasons for establishing the crime of obstructing safe driving.Firstly,the behavior of obstructing safe driving is prohibited repeatedly,and the behavior patterns are various,which has evolved into an urgent social problem to be solved.Secondly,in the judicial aspect,although the guidance has been taken as the basis,but there are some problems such as improper application of charges,different judgments in the same case,and abnormal high sentencing.In addition,scholars and public opinion and public opinion on the social network all recognize and hope to add special charges against the behavior of obstructing safe driving,so as to strictly enforce the law.The second part is the theoretical basis of establishing the crime of obstructing safe driving.There are not only sufficient practical reasons but also a solid theoretical basis for the crime of obstructing on safe driving.The addition of this crime conforms to the spirit of modesty and restraint of criminal law,conforms to the legislative mode of "strict but not severe" under the theory of criminal integration,conforms to the risk control theory of criminal law,and is also the inevitable requirement of the principle of legality of crime and punishment.The third part is the requirements of the crime of obstructing the safe driving.According to the traditional crime constitution in China,the crime of obstructing safe driving to be added should also have four requirements: the object of the crime should be public security,that is,the safety of life and property of the majority of people.The object of impure driving behavior can only be the driver on the public transport and the public transport itself.On the objective aspect of crime,it is divided into the following points.First,there are two kinds of behaviors that obstructing on safe driving.One is the behavior that ACTS on people,and the other is the behavior that ACTS on things.Secondly,the limits of space and time should be strictly limited for the behavior of obstructing on safe driving.The behavior can only occur in certain public transportation vehicles,including buses,highway passenger vehicles,taxis,subways,light rail and ships.This behavior can only occur during driving,that is,after the driver starts the engine of public transport,whether the public transport is in operation or not;As for the subject of the crime,it should be limited to natural persons who have reached the age of 16 and have the capacity for criminal responsibility,which should normally include passengers on public transport,other staff and people outside the vehicle with the intention of obstructing safe driving.The driver cannot be the subject of this crime,so the article specifically analyzes how to determine the behavior of justifiable defense or other crimeswhen the driver encounters the behavior of impelling safety driving.As for the subjective fault of crime,this paper holds that it should be direct intentional and indirect intentional,and it is impossible to become a negligent crime due to the lack of awareness of the high risk of one's own behavior due to poverty or lack of awareness of the city for the first time.The fourth part is to set up the limit of the crime of obstructing safe driving.In addition to the crime of obstructing safe driving,first of all,we should pay attention to the boundary between crime and non-crime,and accurately distinguish the boundary between the crime of obstructing safe driving and administrative illegal action and general disputes.Secondly,it is necessary to grasp the boundary between the crime and the similar crime,analyze the difference and boundary between the crime of obstructing public security by dangerous means,the crime of traffic accident and the crime of dangerous driving,and distinguish the difference of its constituent elements.In addition,we should also pay attention to the concurrence of this crime with related charges,and the concurrence of imagination with the crime of provoking trouble and the crime of intentional injury.After the addition of the crime of obstructing safe driving,the concurrence of imagination occurs within the specific space and time limit.The purpose of this part is to clarify the possible identification problems of the crime.The fifth part is the concrete conception of establishing the crime of obstructing safe driving.On the basis of reviewing the relevant legislation in Hong Kong and outside China,this paper concludes the legislative enlightenment of adding the crime of obstructing safe driving in China.This paper mainly discusses the position of the crime of obstructing safe driving,the indictment of the crime and the range of legal punishment,and puts forward some Suggestions on the strict application of reprieve.In the design of the law,this paper proposes that different grades should be set up in the penalty and property penalty should be applied in order to achieve the purpose of prevention of the criminal law.