Judicial Confirmation Of Drunk Driving

In May 2011," the Eight Amendment of Criminal Law of the People’s Republic of China"(hereinafter referred to as "Amendment(eight)")was formally implemented.The crime of dangerous driving was added to the amendment,of which drunk driving is considered illegal behavior and is included in the scope of criminal law regulation.For those who are drunk driving,the way of penalty was not only license revocation,fines,or administrative detention."Drunken driving into criminal law" provides a legal basis for the legal punishment of drunk driving,and provides legal protection for road traffic safety,and also demonstrates the legal spirit of severely punishing drunk driving in China.Judicial practice has proved that "drunk driving into criminal law" has achieved certain social effects in fighting crime and maintaining public safety.Meanwhile,it should also be seen that the divergence between theoretical controversy and judicial determinations about drunk driving have been continually existing,which mainly reflected in whether the drunk driving can apply the proviso clause of Article 13 of the Criminal Law,how to determine its subjective crime and objective aspect,whether the scope of the subject is narrow,and how to define "overnight drunk driving" and "motor vehicle" in the new situation,etc.Under the background of "drunk driving into criminal law",this paper based on China’s laws and regulations,local regulations,and guidelines on drunk driving,expounding the basis for the judicial confirmation of drunk driving,using methods of analysis,comparison and empirical research to conduct deeply analysis and thinking on the issues of drunk driving behavior that are more controversial in judicial determination,learning from foreign legal determination of similar crimes,and then putting forward targeted suggestions from the perspective of judicial determination.This paper consists of an introduction,text and conclusion.Among them,the body includes the following four partsThe first part is the background,process and effect of "drunk driving into criminal law".This part is including the review of "drunk driving into prison" background and practical significance;the introduction of China’s legal regulations,local regulations and guidelines on drunk driving,the statement of the basic paradigm followed by the judicial determination of drunk driving in practice.On the basis of fully affirming the social effects of "drunk driving into criminal law",it is pointed out that there are some deficiencies in the process of judicial confirmation.The second part is the analysis of the problems of the judicial confirmation of drunk drivingbehavior.The issues that are more controversial in academia and judicial practice was mainly analyze.One is that the subjective aspect of drunk driving is deliberate or negligent,the second is that the subject of drunk driving is too narrow,and the application of the joint crime theory is insufficient;the third is the determination standard of the "drunk state" at the core of criminal determination is single.Fourth,the application of the "proviso clause " in Article 13 of the Criminal Law has been shelved in the crime of dangerous driving,and impunity mechanism and non-custodial penalties are difficult to realize.Fifth,under the new situation,two-wheeled electric bicycles and three-wheel or more electric-driven vehicles(non-electric vehicles)have been identified as “conforms to motor vehicle identification standards” in the elements of crime,and whether“overnight drunk driving”should be convicting is sentenced differently in different place.The third part is the overseas investigation and reference of drunk driving behavior.This part focuses on examining the legal regulations and judicial practices of drunk driving behaviors in foreign countries and regions.Through comparative study,the aim is learning from their experiences reasonably.The fourth part is some suggestions for improving the judicial confirmation of drunk driving.This paper agrees with mainstream scholars in terms the subjective aspect of drunk driving criminal behavior,insisting that the form of the crime is indirect deliberate crime;second,it is recommended to expand the explanation of the subject of drunk driving crimes,and enrich the theory of joint crimes of drunk driving.The third is to gradually improve and clarify the identification of "drunken state";Fourthly,in specific jurisdictions,while strictly convicting a crime,it is necessary to rationally form a impunity mechanism for driving while slightly intoxicated cases,expand the application of non-prosecution,and explore non-custodial penalties;Finally,the tension between criminal and administrative law should also be recognized,and drunken driving motor vehicles which exceed national regulation standard production and overnight drunk driving should not be recognized as crime.Fifth,the provisions on drunk driving in the Administrative Law should be recognized,driving vehicles that exceed the standard while intoxicated,and drunk driving overnight should not be considered a crime in criminal law.