| Drunk driving has been punished for more than ten years.In these ten years,the number of cases of drunk dangerous driving crime has soared,and now it has ranked first in the number of criminal cases.Although the punishment of drunk driving has achieved certain results,the surge of drunk driving cases has also brought some practical problems,such as the anomie of conviction and sentencing of drunk driving and the difficulty of slightly drunk driving,resulting in many difficulties in the judicial application of the crime of drunk dangerous driving.The legislative purpose of "drunk driving into punishment" is to classify drunk driving as a crime and give criminal punishment,so as to better realize the protection of specific legal interests in the criminal law,but now it has not achieved the predetermined legislative effect,On the contrary,it has deviated from the original intention of legislation.In order to solve this problem,it is now necessary to adjust the criminal law theory and criminal policy from the judicial practice,so as to promote the rational diversion and lighter punishment of drunk driving cases in China,in order to achieve the judicial effect of crime,responsibility and punishment.This paper studies the conviction,sentencing and criminal policy of drunk dangerous driving crime,first finds out the judicial application problems of drunk dangerous driving crime in conviction and sentencing,and makes corresponding analysis and demonstration,and then puts forward more targeted solutions from the perspective of criminal policy,in order to provide relevant reference for the smooth solution of drunk driving problem in judicial practice.This paper is mainly divided into four parts.The first part interprets the controversial focus of judicial application after drunk driving into punishment,expounds the problems existing in the application of drunk dangerous driving crime,analyzes its shortcomings and causes,and prescribes the remedy to the case;Then it expounds the logical starting point of the judicial application of drunken dangerous driving crime from three aspects: the abstract dangerous crime is convenient to protect legal interests,the feasibility of adhering to judicial regulation and the interaction between law and criminal policy.This paper intends to regulate the conviction and sentencing of drunken dangerous driving crime through criminal policy without changing the legislation,so as to rationalize the diversion of minor drunk driving cases and mitigate the punishment.The second part of the subject is an in-depth analysis of the boundary and way out of the crime of drunk dangerous driving.Firstly,it leads to the confrontation between the "establishment and abolition" of drunk driving,analyzes the advantages and disadvantages of scholars’ views on the "existence and abolition" of the crime of drunk dangerous driving,and finally comes to the conclusion that the crime of drunk dangerous driving cannot be abolished;Then define the crime and non crime of drunk driving,clarify the conviction standard of drunk dangerous driving crime,help drunk driving achieve accurate conviction and reduce cognitive differences;Finally,on the discrimination between this crime and that crime of drunk dangerous driving crime,clarify the differences between dangerous driving crime,traffic accident crime and the crime of endangering public safety by dangerous methods,in order to accurately locate the nature of the perpetrator’s drunk driving behavior and reduce the legal application errors of common crimes in criminal practice.The third part of this topic is to analyze and study the statistics of drunk driving data and the specific situation of cases.Relying on the empirical research results of scholars on the sentencing of drunk dangerous driving crime,the author searches for criminal cases with the keywords of "dangerous driving crime" and "drunk driving" on the China judicial document network.The author takes the drunk driving cases in recent five years(2018-2022)as the statistical scope,and randomly selects provinces,cities 150 judgments of the autonomous region are taken as the survey samples of this subject.Then it verifies the sentencing problems encountered in the trial of drunk dangerous driving crime,such as the imbalance of probation application,different sentences in the same case of fines and penalties,and the unclear identification standard of voluntary surrender.On the premise of conforming to the norms of criminal law,the author puts forward a more feasible sentencing measurement standard,in order to provide reference for the specific application of sentencing standards in practice.The fourth part of this topic discusses the criminal policy of "universal criminalization of drunk driving" in China,analyzes various sticking points exposed in the implementation of China’s criminal policy,and discusses that the crime of slightly drunk driving is an arbitrary practice of "all punishments" in line with the basic spirit of the criminal policy of tempering justice with mercy and the development direction of the socialization of criminal policy,It will make the dual crime punishment mode of "criminal punishment + administrative punishment" useless.Finally,the author comes to the conclusion that there is an urgent need to build a mechanism for the crime of minor drunk driving in China,starting from the judicial implementation of the crime of "proviso" and the judicial diversion of non prosecution of minor drunk driving;In terms of drunk driving sentencing,China urgently needs to build an evaluation system for the application of probation in drunk driving cases,deepen the reform of fine penalty in drunk driving cases,and do a good job in the rationalization and diversion of drunk driving cases and the mitigation of punishment from both substantive and procedural aspects. |
