Jian Feng associate professor:
   Dear teachers and classmates everybody is good, today is the 09 year in September 9th, held the forum this evening the criminal law nineteenth. The criminal law forum in various forms, can invite experts and scholars at home and abroad well-known a keynote speech, also can revolve around the current hot issues of a seminar, also is the combination of these two forms of. Today we are taking the last form, invited Professor Zhao Bingzhi president of the hospital to give the keynote speech on "Criminal Countermeasures for drunk driving" accident cases, then welcome to the exchange on the "Criminal Countermeasures of drunk driving" criminal cases ".

   I briefly introduce the background. "Drunk driving" criminal case is not a new topic, as early as 12 years ago, Zhengzhou Zhang Jinzhu case has aroused widespread concern in all. In this case, we explore the more news and public opinion supervision is not due to improper influence sentencing itself. For the "drunk driving" the criminal responsibility was not enough discussion.

   In a series of "drunk driving" accident cases recently, from the end of 2008 Sun Weiming "drunk driving" accident caused four deaths and one injury cases, to 2009 June Zhang Mingbao "drunk driving" accident caused five deaths and four injuries cases, to the August Hangzhou, Shanghai, Jixi, there were several such cases. According to my search data, Beijing City, the first half of 2009 "drunk driving" accident cases are 81, resulting in 97 deaths; from WHO figures are even more startling, developing countries have every 35 minutes a person because of alcohol related traffic accident death.

   The case has become a hot topic, but also a period of time before the public security organs to strengthen motivation cases related to motion control. Our law are more concerned about is how to deal with this type of case in the perspective of law, especially to our criminal person, such cases should be convicted and punished.

 

Zhao Bingzhi dean:

   Tonight's topic is a temporary move, I feel all the recent media attention in these cases, it is a reflection of social concern, so I think it is worth the matter with your teacher students exchanges. Practical issues of criminal law scholars concern, this is criminal law scholars due social responsibility and occupation responsibility. "Drunk driving" accidents caused by the attention of the whole society, not just because of the media hype, inevitably has its typical significance. I think as the criminal law scholars, should capture the criminal law problems of these live, especially some law problems reflected in the typical case.

 

One, "drunk driving" accident cases and serious harm

(a) "drunk driving" definition of accident cases

First of all, we say "drunk driving" according to drinking to different degrees, including the drunken driving and drunken driving. In the traffic management and regulations in our country, the provisions there is alcohol content about drinking and drunkenness. We study these recent drunk driving case, up more than a drunken standard per 100 ml or 80 mg of the alcohol content of 4 - 5 times, although each person's resistance to alcohol is not the same, but exceed the standard so severe, that drove drunken degree is serious.

Secondly, here the "accident" the word itself is not accurate, in our country criminal law terminology, "accident" crime tends to be limited to negligence, but we here discuss "accident" is not limited to negligence. This means that a class or after drinking drunk driving cause casualties or major property damage and serious consequences of the violation of the criminal law cases, and no strict distinction between negligence and intentional.

(two) "drunk driving" accident of the typical cases

To give you a few drunken accident case: Chengdu Sun Weiming case, Li Jingquan case, Foshan Guangdong Nanjing Zhang Mingbao case, Zhang Xijun case of Heilongjiang Jixi, Hangzhou Wei Zhigang case. (omitted)

These cases of controversy, mainly focus on: (1) driving drunk in serious case how the behavior subjective presumption; (2) whether there is the possibility of transformation between the traffic accident crime and the crime of endangering public safety; (3) in the framework of current criminal law, whether can cause serious consequences to consider and determine the charges; (4) in the most extreme cases identified as drunk whether acute drunken state, how to force and the perception of force control in this case; etc..

These five cases have something in common: one, belong to excessive drinking drunken driving, and some even reached a depth of drunken state; second, the first hit and then continuous impact, the first accident often plot is relatively mild, the back after several hits very serious consequences.

(three) a drunk driving accident harm

Firstly, the direct victim, drunken driving significant damage from person, public and private property, this point it is self-evident.

Secondly, drunken driving cases of serious harm, threat to public safety.

Again, this case encourages disregard, ignore the life of law, disregard for public safety awareness. The past traffic accident case a lot of probation, some lose money even probation is not found, solve cases through mediation. Hangzhou Hu Bin drag racing case caused such a great response, one of the reasons is the case just out of the news media of false reports, said Hu Bin after the incident said: "never mind, but hundreds of thousands of dollars".

 

Two, "drunk driving" the case of criminal theory

(a) drunk and criminal liability exemption

The provisions of our criminal law is "an intoxicated person who commits a crime, he shall bear criminal responsibility." This is a problem, in terms of legislation, anyone who commits a crime shall bear criminal responsibility, but said that the implementation of a drunken man cannot act because of drunkenness is exempted from criminal liability. The drunk not a reduction of the criminal responsibility of the reason, it is different with the physiological dysfunction, other mental illness. But why should be investigated for criminal responsibility of violation of criminal law drunk person harm to the implementation of accountability, and whether the lenient, strictly, on what basis? The law may not so detailed provisions, and our theoretical study is not enough. Published in 1989, my doctoral thesis "the subject of crime in theory" relates to the criminal liability of the crime of drunk, then the introduction of foreign criminal cases mediated was not much, I have no reference to relevant legal terms because of freedom, I mainly refer to the relevant theories of Anglo American criminal law and the former Soviet Union, the cause of freedom not related to the continental criminal law. Of course, now can use reason free behavior theory to analyze, but I think the reason free behavior theory also has its own disadvantages, criminal responsibility cannot solve all drunk crime.

 

From the criminal law theory, I think the most important question is: drink is drunk the implementation of serious harm behavior of criminal responsibility and the intoxicated person's criminal responsibility ability. We often say that people after a drunken recognition ability, control ability is reduced, but how to reduce, and the combined with drunken background. Judicial psychiatry generally drunk has three stages: the first stage is the excitement period, the general performance of facial flushing, brain, clear words, at this time still conscious can control their behavior; the second stage, medically known as Masonic ataxia, I referred to as the control force decline period, represents the most typical is unable to effectively control their own body movement; the third stage is the period of lethargy, to continue the development is likely to death.

First, the second stage of drunkenness is the implementation of behavior of active phase, second, the third stage is the stage of multiple events, control serious decline, just a few cases that are almost all in the second stage and third stage process. In this case, first of all to the study of criminal responsibility; secondly, the capacity of criminal responsibility is a prerequisite, subjective mental attitude and behavior of people need analysis. This is behavior person to bear criminal responsibility according to the need to address the problem. In addition, whether by reason free behavior is well explained and similar phenomenon also exists some problems. The cause of crime is because of drinking, drinking after the control force to drop, but drinking as a premise of behavior, behavior person is free control. Some people are Dutch courage to commit crimes, before drinking to his drunken behavior have a clear plan, at this time, act or omission is intentional; while in the drink as drunk fails to fulfill the obligation or forget to do duty as is often negligent.

(two) "drunk driving" legislation accident

Another problem is the crime of drunk driving theory of law setting. In the present criminal law setting, 133rd traffic accident crime includes the "drunk driving" the part of the act, article 115th of the crime of endangering public safety can also contain "drunk driving" accident in some cases. Among them, according to the needs of the reality of our country, with reference to foreign situation, our country about drunk driving accident case the existence of legal gaps, but also to the theory of criminal law issues.

(three) "drunk driving" the criminal sanctions

The third theory problems is drinking, drunk driving penalty of deaths and injuries caused by such crimes, of which there are three problems: one is to set a question the legality of crime of causing traffic casualties; two is to set a question to the crime of endangering public safety legal punishment; three is the deficiency of the current qualification penalty crime the. At present, the qualification penalty and the administrative punishment is based on the set of traffic regulations, also not be deprived, as a penalty constraint qualification in current criminal law, as the principal penalty with the qualifications punishment.

 

Three, "drunk driving" accident cases of Criminal Judicial Countermeasures

(a) "drunk driving" accident cases criminal convictions Countermeasures

In the past because of alcohol or drunken driving caused casualties case, China's judicial organs in violation of traffic safety laws and regulations as the basis, convict crime of causing traffic casualties. According to the criminal law 133rd stipulation, basic constitution of crime of causing traffic casualties is a fixed-term imprisonment less than 3 years or criminal detention; escape or other special circumstances of the poor, more than 3 years to 7 years in prison; the death caused by escaping, department for more than 7 years in prison. The judicial authorities in the actual processing, most of the more lenient treatment of "drunk driving" accident cases, is either a light sentence, or probation in compensation in place, or exempted from criminal punishment.

In fact, the qualitative behavior for driving drunk driving accidents in the wine after escaping the casualties caused by the behavior of the controversy, mainly for the behavior of escape behavior and its consequences in the subjective mind is confident negligence or indirect intention? This is related to the behavior of "drunk driving" accident was a hit and convicted and punished to traffic, or by dangerous means to endanger public security crime problem.

The support of the Supreme People's Court on September 8, 2009 morning news conference, Li Jingquan Sun Weiming in two cases showed that, after the first accident behavior and continuous collision constitute the crime of endangering public safety. My personal view is, qualitative can not be absolute, the first accident shall be negligent, behind the event or the need to distinguish between the perpetrator's subjective state of mind, especially a series of accidents, serial accident vehicle is completely on the back of vehicle impact because of out of control, often can not be regarded as laissez faire endanger public safety attitude. So can not simply by virtue of the number, or should the concrete analysis of concrete conditions, according to the analysis of the case for laissez faire. I think the Sun Weiming case, Li Jingquan case as indirect intentional laissez faire could be set up, especially in the case of Li Jing Quan behavior person unexpectedly accelerated collision, which is typical of the laissez faire, which belongs to the indirect intention of crime.

Therefore, in judicial practice, the drunk, drunk driving traffic accidents (the first collision) after continuous collision of others, should determine the behavior of the nature of the distinction, not all that constitute the crime of traffic accident or regarded as the crime of endangering public safety.

(two) "the Countermeasures of drunk driving accident case"

In the Sun Weiming case trial court and the Supreme Court of the death sentence to life imprisonment, consider three factors: first, is the indirect intentional crime, subjective, objective harm is less than the direct intentional crime; second, was in serious drunk case, identify force, control force are reduced, and responsibility the complete case compared to its subjective malignant small; third, there is a sincere plea of repentance, compensation for the victim's loss, the victim to reach a certain understanding of the discretionary circumstances. This is the similar case in judicial organs general considerations, not only to see its harmful consequences, we should also consider the subjective aspect of the crime, the subjective malignant have lower probability, have reduced, considering the victims -- whether to give the victim compensation, there has not been the victim of the understanding.

However, for the case of second instance court commuted the factors in the consideration, the following four points deserve further scrutiny:

First, whether the indirect intentional crime than direct intentional crime harm to small, vicious to small? We say, simple judgment can't do "make it rigidly uniform". In general, especially when other cases, indirect intentional crime than the direct intentional crime lighter; but different direct intentional crime compared with indirect intentional crime, subjective point of view from the harmful consequences and combined with some indirect intentional crime, harm to other than the same properties of the direct intentional crime the case of the greater.

Second, drunken behavior control force is reduced, whether can be mitigated punishment according to? The Sun Weiming case, Li Jingquan case sentence was commuted from death to life imprisonment, an important reason to think that the appellate court and the Supreme Court's press conference is due to the act of a state of intoxication, the control force is reduced, caused the accident crime first. This argument has some problems in theory. It is the drunk crime, the control force is reduced by the accident crime first, reckless behavior later need not distinguish between control force, therefore, drunken behavior control force is reduced, is not enough to be mitigated punishment according to the.

Third, according to the compensation for the mitigation of punishment is necessary? Compensation is not directly influence the sentencing factors, but show repentance attitude and performance of the defendant's confession. But from the victim's point of view, has a certain amount of money damages in case of death, after all, to reduce the economic burden of the family of the victim, to a certain extent, from the material to reduce the harm caused by the crime. These are of positive significance for. The idea of harmonious society and the lenient and severe criminal policy guidance, the defendant active compensation for the victim's can be considered as a mitigated punishment basis.

Fourth, drunk driving death cases caused by whether absolutely not sentenced to death? Has some significance of this two case. One deduces the conclusion -- drunk driving death cases induced by absolute not sentenced to death, the highest is only life imprisonment. I don't feel this assertion, did not mean that the Supreme People's Court on September 8th that. The two cases are the consequences will be grievous, but which contains a lot of lenient factor, without these lenient factor, if the consequences are more serious, it was hard to retain the death penalty cases should never do not apply the death penalty. Direct and indirect intentional difference is only relative, not absolute, therefore, we advocate is strictly limited to reduce the death penalty, but can not be said to be dead drunk driving case can't be executed, but China is not the case law countries, and no case law system.

Drunk driving death cases due to many problems to be solved, I think it should be issued to the relevant judicial interpretation norms. Of note, the Supreme People's Court on 2000 according to the penal code article 133rd traffic accident crime judicial interpretation has the certain problem. The second paragraph second, traffic accident injuries to more than one person and one of the following six cases with traffic accident crime, the first item is drunk driving. Here we should pay attention to the judicial interpretation and judicial introduced this new future according to two typical cases just accepted explanation could be a contradiction. In addition, the interpretation from the limited provisions of escaping death is relatively narrow, and its rationality is worthy of further investigation.

A unified judicial accident cases of drunk driving conviction and sentencing, I have the following three points: first, the Supreme Court issued by leading, with demonstration, guidance, for instance Li Jingquan case, Sun Weiming case. This is a kind of way, more intuitive, processing more quickly, make practical departments, according to understand more convenient. But the case itself is limited, second, the Supreme People's court shall file the relevant judicial interpretations of the timely introduction. Our country's judicial interpretation, to a considerable extent, refinement of the law, the law can not play an important role, the normative documents is not a few cases can replace. Third, through the experience of judicial practice and theoretical research, promote the legislation to perfect.

 

Four, drunk driving accident countermeasures to perfect criminal law's legislation cases

(a) to improve the legislation basis

According to the criminal law legislation, in short, is the need of the development of social practice. 79 years, 97 years of penal code, criminal code did not foresee the rapid development of China's automobile industry during the past ten years, the plane cross traffic in China is very intensive, so the traffic situation on the safety of people's life and property safety of the major potential harmfulness. The related criminal code of our country traffic accident has no consideration to the current situation, therefore, the criminal law legislation related to the development of the times and to be perfect.

(two) to improve the legislation principles

We modify the legal principle, one should be based on China's relevant legislation and judicial practice, based on the traffic safety of China's actual situation and needs; two should pay attention to the experience and lessons of judicial practice in China have been put forward, and the urgent requirements; three to learn from the advanced experience of foreign, outside of the appropriate reference.

(three) and suggestions on Legislation

Modification of existing law 1

The traffic accident crime plot clear, specific, the range of legal punishment appropriate lifting; and made clear to the crime of endangering public security can be suitable for drink driving cases.

Learn from the legislative experience of other countries can consider supplementing related charges, such as the Japanese have the dangerous driving crime of dangerous driving lethal injury, which include drunken, doping, over speed, racing, running red lights and so on, the latest revision to 07 years, caused by dangerous driving wound to 15 years in prison, the place of death more than 1 years to 20 years in prison. Such charges to take into account the special cases, more targeted, can refer to.

Discussion on 2 dangerous crimes

The crime of causing traffic casualties in China is serious consequences result crime, like Japan, South Korea and other countries have drunk driving drunk driving crime, that is in itself a crime, Ukraine recently proposed related bill. Our country in the past emphasis on negligent crime is consequential offense, but also is a serious outcome crime, but you should pay attention to, our new legislation is a change in this regard, criminal law amendment (seven) eleventh or plant epidemic prevention, quarantine dynamic supplement sin "dangerous" state. The rules, which in theory is considered to be China's criminal law on the new progress in legislation of dangerous criminals. Animal and plant disease related to the public interest, public safety is related to the public interest, in this aspect I agree after careful study to establish the danger of drunk driving offense. Of course, drinking and driving is to exclude the conviction. Drunk driving offense is not serious, the relevant provisions in other countries are also not heavy. The common behavior of drunk driving, a Japanese law is very strict, to the driver, with the car, like a drunken man, to provide a vehicle to the driver to provide alcohol will involve criminal responsibility. My view is that the behavior is need to consider, should not easily.

3 penalty consideration

Drunk driving crime conditions if contains the intentional crime, whether the facilities shall include the death penalty width, need to seriously study in the context of strict control of death penalty. The penalty for allocation of free punishment, especially the qualification penalty, how to solve the cross, coordination, distinction and qualification of administrative regulations of punishment, still need further consideration. Finally, whether the principle, influence factors for penalty measurement needs legislation clear, also need to be further studied.

 

Five, the conclusion

One, "drunk driving" accident case has serious harm, need to give tough sanctions. But it is clear, to deal with this kind of cases, especially in the prevention of criminal law, compared with other laws, other sanctions, can only be a last line of defense, not only or mainly rely on criminal law to restrain this kind of drunk driving crime, this is not possible, we should guard against relying mainly on other measures.

   Secondly, for the treatment of this kind of drunk driving accident crime, it is necessary to emphasize the governance law measures, including administrative, criminal measures, should also pay attention to express our great concern of the whole society, the public opinion, which also has a huge role in society, to form a good social atmosphere has a greater significance to curb this kind of crime. (Punishment academy Master Chou Fangfang finishing)

 *Important note: due to time limit,September 14thIn this column published "drunk driving case Criminal Countermeasures seminar" recording documents without the speaker review and content more mistakes, the presenter professor Zhao Bingzhi trial correction and be replaced, please forgive and attention.

"Reflections on drunk driving" deaths and injuries caused by cases

 

Zhao Bingzhi*

 

The social concern "Chengdu Sun Weiming drunk driving death penalty case", "Guangdong Li Jingquan drunk driving death penalty case" respectively by the Sichuan Provincial Higher People's court and the Guangdong Provincial Higher People's Court of second instance final judgement, the sun Weiming and defendant Li Jingquan to "the crime of endangering public safety", were sentenced to no in prison, deprived of political rights for life. The Supreme People's court and then in September 8th held a news conference, announced the two trial results to the society. However, validation of the final decision did not make the criminal law theory and social controversy and attention to stop this kind of case, judicial and legislative problems exposed in the case of the trial, it is worth further study. This paper from the "drunk driving" deaths and injuries caused by sin, crime number shape of cases and legislative perfection slightly explored.

 

One, "drunk driving" deaths and injuries caused by the case of fault shape

"Drunk driving is referred to as" serious consequences for the occurrence of the drunk, drunk driving behavior.[1]In the "drunk driving" in the case of deaths and injuries caused by the dispute between the parties, the focus tends to focus on the behavior of people driving continuous collision behavior under the condition of the drunk or drunk out of indirect intent or negligence of confidence, which is directly related to the behavior of endangering public safety crime is suitable or traffic accident crime by the dangerous method.

A confident negligence and indirect intention of distinction, theory is generally believed that, in the two kinds of mentality, behavior people recognized that this behavior may cause serious consequences, but the fault behavior are based on personal experience, technology, physical as well as tools, environment, weather, the behavior of others factors recognized the possibility to avoid the consequence,^[2]Indirect intentional behavior which is not known, rather than go to the cognitive behavior; people are not want harm results, but the fault behavior completely repel harmful consequences, while the indirect intentional behavior person to harm results occur.^[3]"Drunk driving" deaths and injuries caused by cases, distinguish the subjective sin is more complicated, because the behavior person and unconsciousness due to drinking or drunk, identification and control ability is lower, is not easy to determine the behavior of the then state of mind. In this regard, we should pay attention to the following points:

First, drink or drunken behavior since people can drive, that it still has the legal responsibility ability some, can realize the behavior may cause socially dangerous consequences.

Second, the crime shape judgment must be in accordance with the principle of unification of subjectivity and objectivity. According to the subjective and objective requirements of the principle of unity, the criminal responsibility of the determined between subjective and objective harm to human behavior are unified and confirmation. In the "drunk driving" in the case of deaths and injuries caused by drunken driving behavior, human behavior is often due to a kind of self-confidence, believe that by virtue of their technology or experience, can drive. So the character of the first collision behavior often belong to the fault accident, subsequently escaping process continuous collision situation requires further analysis: one is behavior person to escape, not to take any control measures, continue to high-speed driving, reckless, laissez faire endanger public safety consequences, such as Sun Weiming in the event of an accident, exceed the limit speed of more than two times in the vehicle, crowded on the road through the escape; Li Jingquan after the accident unexpectedly accelerated collision, are typical of the laissez faire, the subjective mentality has changed, is no longer a fault, but indirect intentional; another case is the behavior of people have started to control the behavior, such as to reduce speed, step on the brake acts, but because of drunkenness caused the decline in ability to control or due to excessive speed, leading to subsequent collision induced casualties circumstances, still belongs to the error.

Third, should analyze whether the actor thinks he can avoid the harm society, then analyzes its this kind of understanding has not fully, based on reality. If the actor said that can avoid the occurrence of results or according to, the general view does not have any rationality, and objectively wasn't enough to prevent harm results occur, then, the perpetrator's subjective state of mind in fact belongs to the indirect intention, and non overconfident negligence.

 

Two, "drunk driving" cases of deaths and injuries caused by the number of crime

Drinking or drunken driving behavior of motor vehicles, escape after the traffic accident, has the possibility to cause the traffic accident death to the victim, and may lead to other people (motor vehicles such as the crowd, the enforcement of traffic police, regular exercise, the person on the other pedestrians) killed or severely injured. This needs to analyze the relationship between traffic accident and escaping behavior constitutes a crime, in order to solve the "drunk driving" in the case of deaths and injuries caused by the number of crime. According to the reality, in the number of crimes can be distinguished as follows:

First, if the drunk or drunk driving accidents constitute the crime of traffic accident, behavior and escape causing death to the victim, therefore, should according to the penal code article133The situation can be after paragraph. Two is the relationship between the basic crime and aggravated consequence.

Second, if the drunk, drunk driving accidents constitute the crime of traffic accident, the behavior people escape and negligence causing other casualties, meets the traffic accident crime. At this time, the crime of causing traffic casualties and constitute the continuous crime, the criminal shall be given a heavier punishment can be considered.

Third, if the drunk, drunk driving accidents constitute the crime of traffic accident, the behavior people escape and indirect intentionally caused by other casualties, conform to the crime of endangering public safety crime. In this regard, before and after the two crime should be combined punishment for several crimes.

Fourth, if the drunk, drunk driving accident does not constitute the crime of traffic accident caused by negligence, behavior person escape other casualties, meets the traffic accident crime, traffic crime; but if the behavior person escape time after death intentionally caused by others, in accordance with the crime of endangering public safety crime, set the crime of endangering public safety.

Visible, the "drunk driving" accident (the first collision) after continuous collision of others, should distinguish the different situation to make the crime cognizance, not all identified constitute the crime of traffic accident or the crime of endangering public safety.

 

Three, "drunk driving" case of criminal legislation

The current disregard traffic regulations, drunk, drunk and causing serious consequences of the increasing number of cases, serious harm to the social status of public security, somebody puts forward we should set up the "dangerous driving crime in the criminal law". But there are also people who think, in the present circumstances, to combat the "dangerous driving behavior should be based on" beforehand prevention, do not have to consider increasing the "dangerous driving crime". Some people believe that, by increasing the traffic accident crime sentencing classes, connotation of traffic accident crime, the crime into the way to solve the problem.^[4]

(a) the rationality analysis of new "dangerous driving crime"

China's social development needs and existing legislation based on, can consider adding a "dangerous driving crime", the reason is that:

First, the need to reduce the social risk. All kinds of risk in the development of modern industry has brought to the community of life, in order to social public interest and public safety, the criminal law shall be the culpable risk status timely negative evaluation, especially when it comes to public safety and transportation fields, criminal law should be ahead of time. As the huge risk control "drunk driving" brings to the public and timely deterrent, becomes the main reason of legislation.

Second, the crime of causing traffic casualties regulation range and limited effect. On the drunken driving to endanger public security situation, subjective is indirect intention, different in nature from the traffic accident crime negligence. So, by increasing the traffic accident crime penalty grade way and can not solve the problem. In addition, the crime of causing traffic casualties as negligent crime, more than seventy percent were sentenced to probation, the court sentenced to probation is higher than ninety percent, which tends to produce an illusion to the public, the accident gave money to settle a dispute, the deterrent penalties is limited, difficult to meet the prevention and control of "drunk driving crime".

Third, the crime of endangering public safety disposal "drunk driving" is not the case. On the one hand, the crime of endangering public safety itself has a "pocket crime" too, is in line with the principle of legality is disputed; on the other hand, the crime of endangering public safety is not against drunk driving behavior and the establishment of special, "in other dangerous method" should be equivalent to the explosion, fire, and will water, explosion, on the equivalent method of dangerous substances, and can not be identified as anything to endanger public security nature of the method, for the majority of harmful consequence is not particularly serious drunk driving accident behavior, dangerous to approach the harm public security crime at10Years, are to be sentenced to life imprisonment or the death penalty, the penalty is too heavy.

Fourth, foreign on punishing "drunken driving" successful legislative experience for reference. Strictly speaking, "drunk driving" cases are common industrial society in the process of social development, are common in all the countries in the world, therefore, to learn from the experience of foreign legislation, it will help to enhance the efficiency to solve the problem. On this issue in developed countries tend to take a more severe criminal policy, set the behavior crime or offense, criminal involvement earlier and the tight. Japan's dangerous driving deadly injury blame includes drunk driving, speeding and give and give and give, without driving skills, and ignore the signal induced by obstruction of driving and driving lethal injury in five kinds of dangerous driving behavior,^[5]Provide liquor even to drink, to provide the vehicle driving, drunk driving behavior of vehicle ride also provides for the crime, and drunk driving with responsibility.[6]South Korea's new revision of the "road traffic law", added a new crime of drunk driving vehicles and reject alcohol detection sin two charges.^[7]Britain.1988Road Traffic Act "is the crime of drunk driving, mainly due to alcoholism or drug addiction not suitable for driving or driving a motor vehicle while driving to the crime, the blood alcohol concentration exceeds a predetermined standard driving or attempting to drive motor vehicle crime, as well as the unsuitable condition of careless driving causing death to sin. These regulations to curb their frequent traffic accidents bring to their public security threats have obvious effect. The perfection of the criminal legislation "drunk driving" case, can the appropriate reference.

Fifth, many types of dangerous driving behavior. Practice not only drunk driving behavior, and drug driving, overspeed driving behavior also endanger public safety, set the "dangerous driving crime" can be the behavior into the new charges, it is more reasonable.

(two) "the crime of dangerous driving crime"

Traffic accident crime in the criminal law of our country is committed, the only serious to constitute a crime. But this is obviously not conducive to the treatment of "drunken driving" case. Therefore, for the serious harm the public safety of drunk driving, driving after taking drugs, serious speeding behavior can be considered to be the basic form of crime of dangerous crime. That is to say the drunk and other dangerous driving behavior itself has on social public security caused great danger, in order to maintain social security, suppress the occurrence of serious criminal result, as long as the behavior of the implementation of driving behavior in a drunken dangerous condition, and the endangering public safety, even in the absence of serious consequences also constitutes a crime. If serious consequences are caused, constitutes the aggravated consequential offence. For not causing serious consequences of drunk driving behavior, according to the crime of traffic accident processing or for general traffic punishment can be.

(three) "dangerous driving crime" description

Can consider in penal code article115The increased1Article:

Article 115th: "one of the dangerous driving behavior, endangers public security, if serious consequences have not yet resulted, at......

(a) drunk driving;

(two) drug driving;

(three) for speeding, if the circumstances are serious;

(four) other dangerous driving behavior, if the circumstances are serious.

Dangerous driving causing serious injury, death, resulting in serious losses or other especially serious consequences of public property, office......

Negligent crime mentioned in the preceding paragraph, office...... ; if the circumstances are relatively minor, at......

Dangerous driving, dangerous driving personnel resist inspection, shall be given a heavier punishment.

Dangerous driving, dangerous driving staff active compensation, sincere repentance, made the victim understanding, may be given a lighter punishment.[8]"

(four) "dangerous driving crime penalty settings"

Considering the reality of dangerous driving especially many casualties caused by drunk driving, for a larger threat to public safety, social harmfulness is heavy, we think we should consider the establishment of the death penalty. However, China's cautious killing, killing less criminal policy based, strict limits on the "drunk driving death penalty cases should be the". But, in a drunken driving to endanger public security situation, people hold indirect intentional subjective state, compared with the direct intention to take dangerous means to endanger public security, personal danger subjective malignant lighter and smaller, did not reach the extremely serious crime level. In this regard, the legislation of criminal law should stipulate strict conditions on the "drunk driving accident case of death penalty". Drunken driving is endangering public security with the specific methods of behavior, the free punishment and punishment shall be set up in severity to dangerous driving behavior as the basis, to set a different range of punishment.

The penalty type configuration, can consider adding qualification penalty, namely the link with the "road traffic safety law", for a traffic accident, can consider the vehicle suspension of 6 months to 1 years driving license; while for dangerous driving, can consider detained for more than 1 years of motor vehicle driving license; again or repeatedly implementation traffic accident crime or the crime of dangerous driving, can consider to motor vehicle driver's license revoked, or even banned from driving for life.