| Thanks to the advent of the era of artificial intelligence technology,autonomous driving technology is not a distant future concept and is expected to bring about a traffic revolution.The purpose of this paper is to uphold the forward-looking concept that the criminal law should have,and to sort out and explore the problems that this emerging technology may bring different from the traditional criminal legal regulation.This article is divided into the following three parts.The first part briefly introduces the current development of autonomous driving technology.With the maturity of autonomous driving technology,the commercial use of autonomous driving technology has begun to emerge.Self-driving cars can be divided into five levels according to their degree of automation: L1 assisted driving,L2 partial automation,L3 conditional automation,L4 high automation and L5 full automation.The low-level self-driving cars of the L2 level and below,which have emerged in the current automotive market,are no different from the traditional cars in terms of criminal regulations.Therefore,this article focuses on the criminal regulation of L3 co-driving mode and the L4,L5 highly automated and even fully automated modes of self-driving cars.At the same time,pre-existing administrative laws and regulations should be developed in line with technological innovation.By comparing the extraterritorial and current legislative initiatives in China,it is recommended to give legal driving rights to autonomous vehicles in pre-laws and regulations,and toappropriately reduce the mapping and use restrictions on high-precision maps to adapt to the development of current and future autonomous driving technologies.The second part focuses on deliberate crimes involving self-driving cars.First of all,autonomous vehicles have inherent characteristics as products.When the traffic accidents are caused by the unreasonable danger of the vehicle itself endangering personal and property safety,or the related hardware or the assembly not meeting the national standards or industry standards,in the field of product quality crimes,the criminal regulations of automakers and their parts manufacturers and sellers are no different from traditional product crimes,that is,they may constitute the crime of production or sale of products that do not meet the safety standards or the crime of production and sales of counterfeit products.Secondly,for the developers of automatic driving systems,the intelligent system itself also has the property of the product,so the system developer may also constitute a product quality crime.It is necessary to distinguish between product quality crimes and product crimes.The extension of product quality crimes is covered in the first section of the "Criminal Law" Chapter III "The Crime of Destroying the Socialist Market Economic Order","The Crime of Producing and Selling Fake and Inferior Commodities".The main object of the crime is the market economy management order,and the secondary object is the legal person and property rights of the product consumer,which can be called a narrow product crime.The product crime in a broad sense is more extensive than the product quality crime.It can cover all crimes closely related to product defects,including narrow product crimes and product safety crimes.Product safety crimes do not seek illegal economic benefits.For the main purpose of the manufacture and sale of defective products,it may be a crime of negligence without any subjective pursuit,or a deliberate crime aimed at infringing on the life,health and safety of others,and its protection interests are consumer's personal and property rights related of the defective products.The developer of the intelligent system has the dual identity of the product developer and the actual driver who controls the car through the built-in chip program of the intelligent system.As a “driver behind the scenes”,system developers are likely to implement their crimes against the society through thetool of self-driving cars through the development and production of defect intelligence systems.Therefore,if the system developer knows that the defect system developed by the system will cause the self-driving car equipped with the system to smash people,the criminal nature is to achieve the crime of endangering public safety.The actual manipulation of self-driving cars has deviated from the driving behavior itself,and has obvious "injured" characteristics,which can constitute a crime of endangering public safety in a dangerous way.If the developer of the intelligent system is for the purpose of infringing on the personal rights of a specific object,it may be convicted and punished for crimes such as intentional homicide,intentional assault,and other violations of life and health rights.Therefore,the research and development behavior of the system developer has both the production product and the driving manipulation nature,which may constitute imaginative joinder of offenses,and should be treated as a serious crime.The third part firstly analyzes the negligent crimes involving self-driving cars from the standpoint and perspective of the interpretation theory.This paper adopts the theory of non-valued negligence of dual behavior,and clarifies the reasonable behavioral norms that the average person should do through the provisions of the objective attention obligation of the benchmark behavior.Therefore,as far as the new negligence theory is concerned,the decisive and important issue is how to determine such general social life norms,so as to clarify the objective attention of the actors and avoid obligations.Specifically implemented on the self-driving car,the scope and source of the specific attention of the relevant subject are different due to the different degree of automation of the self-driving car.In the co-driving mode of automatic driving at the L3 level,the human driver as a user of the intelligent system needs to be vigilant and jointly supervise the car with the automatic driving system.Since the human driver transfers part of the driving operation authority to the automatic driving system,the human driver's duty of care is incomplete,and part of the duty of care is transferred to the automatic driving system,neither of which has the fully control of the auto-driving car.Accordingly,the human driver's duty of care comes from the traditional transportation management regulations that it should abide by and thespecial transportation management regulations for self-driving cars.In addition to the aforementioned regulations,the duty of care of the autopilot system is also derived from the technical commitments made by the relevant responsible entity.In the L4 and L5 driving modes,the human being is converted into a simple passenger by the driver,and the driver's duty of care for the automatic driving system is borne by the developer.For the same traffic management regulations,the human driver's obligation is to “strictly abide by the traffic management regulations”,and the system developers are responsible for avoiding the obligation to ensure that the self-driving cars can strictly follow the relevant traffic management regulations.Therefore,the system developer's duty of care is indirect,which is derived from traditional traffic management regulations,special traffic management regulations related to autonomous vehicles,and effective commitments made by system developers to reduce the attention of human users.Concretely implemented in the criminal law system,the human driver of the medium-level self-driving car is no different from the traditional human driver,and the users of the high-level self-driving car have no space for the specific driving activities of the car under the current legal framework,therefore cannot be regulated by criminal law.For system developers,there are two regulatory paths: traffic accident crimes and product safety crimes.There are certain rationalities for regulating system developers by traffic accidents crime,but they also have problems that cannot be solved.For example,the R&D team cannot regulate through unit crimes,and the actual violations are not personally committed by the criminals,the implementation and negligence of research and development behaviors are different due to the different aspects of the product.Starting from the regulatory path of negligent product crimes,it is helpful to pursue the negligence and development behavior of system developers by product safety responsibility,and it can also avoid the above problems.Due to the inherent limitations and lags of criminal law,when the interpretation theory is unable to comprehensively cope with the new problems brought about by emerging technologies,it should be considered that the legislative level proposes corresponding improvement suggestions and changes and measures.For the users of self-driving cars,we may consider introducing the theory of supervision and management negligence,and conceptually interpreting and dividing the supervision obligations and management obligations,and clarifying the management obligations of the self-driving car users in the short to medium term.If it does not fulfill its management obligations,it will lead to the inaction of the auto-driving car causing major harms(or acts that actively violate the management obligation).In the long run,it may consider adding a “crime of significant automatic driving(artificial intelligence)accident”.For the self-driving car system developer,since it is the only negligent actor and direct actor,there is no space for the supervised person to exist,so there is no need to set relevant supervision and management obligations.It may be considered to add the relevant "crime of automatic driving vehicle(AI)major safety accident" to the "crime of engineering major safety accident" as a supplement to the negligent product crime. |
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