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Traffic Accident Crime Judicial Application and Legislative Improvement Research

Author: LiuWenBin
Tutor: LiuXianQuan
School: East China University of Political Science
Course: Criminal Law
Keywords: The crime of causing traffic casualties Constitutiverequirements Crime pattern Circumstances of sentencing Perfection of legislation
CLC: D924.3
Type: PhD thesis
Year: 2012
Downloads: 920
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Abstract


In this thesis, the crime of causing traffic casualties are outlined and traffic accident crime as the logical starting point, to the traffic accident crime judicial application as the main line, to the traffic accident crime legislation for the end, the paper emphasizes the study of the crime of traffic accident, the difficult problems, so in theory some breakthrough and innovation, in order to guide the traffic accident judicial practice of the crime of traffic accident crime, perfect legislation, modest contribution. This thesis has seven chapters, the crime of causing traffic casualties (of course also contains a dangerous driving offense) undertook the system studies.The first chapter of the Crime of overview, the first discusses the Crime of the concept. This paper argues that the traffic crime is within the range of public transport management, in violation of the traffic regulations, and thus a major accident causing serious injury or death, or public or private property suffered a significant loss of the behavior. The author introduces the crime of causing traffic casualties in the evolution process in China, further analysis of China’s ancient legal for the crime of causing traffic casualties and the provisions of the modern legal system in traffic accident crime. Secondly, the continental law system and in Europe and America legal system involved in traffic regulations are introduced and analyzed. Obtained by standardized study abroad and other parts of the Crime of the Criminal Code, the following characteristics:1. generally intentional class traffic accident to establish a crime, fault traffic accident behavior is not considered a crime;2. drunk driving and other risky behaviors set up a separate crime;3. clear that traffic crime is the result of guilty;4. traffic accident escape behavior set up a separate offense;5. provides for the crime of not rescue;6. provides for criminal fines and the denial of the disqualification sentence. This paper argues that, from the crime punishment adapts the principle of criminal law and the desire to achieve the purpose of view, fines and deprivation driving qualifications can effectively reduce the occurrence of fault in traffic accident crime.The second chapter to the fourth chapter did the research of the subject of crime of causing traffic casualties and the objective and subjective aspects study. The traffic accident crime objective aspect is to transport regulations violations, whether intentional or negligent, resulting in causing death, serious injury, or by national or personal property to suffer major losses. The traffic accident crime objective aspect can be divided into four elements:1. act based on intentionally or negligently violated the traffic regulations;2. serious injuries or death, personal injury or state, personal property heavy loss results;3for violation of traffic laws and had a major accident, the existence of a causal link between the two;4persons or property damage is the major in public transport management. The article holds that, whether belonging to the traffic accident behavior, mainly from the behavior of violating traffic regulations whether focus, damage is not consideration factor. From the behavioral manifestations, it could be divided into two kinds:1, active as, such as speeding, drunken driving;2, not as negative, as in turn not in accordance with the provisions of the steering lamp, make driving at night without lights and so on. The reason why these behaviors as the crime of traffic accident, because of its place in the public transport sector, these behaviors may pose a threat to public safety, so in that time, must be defined in the public traffic management.The criminal subject refers to the implementation of the act that endangers society, should bear criminal responsibility of natural persons and units in accordance with the law. The scope of the subject of the Crime includes two categories of transportation and non-transportation personnel. From the legislative point of view, the existing criminal law, has no limit of the identity of the subject, so any of legal age of criminal responsibility can constitute the crime. In actual judicial practice, form of crimes of causing traffic casualties were not confined to transport personnel, in violation of the traffic regulations implementing the personnel should also be included for the crime subject, such as persons in charge of a unit, vehicle contractors, these people on the damage occurred shall bear corresponding criminal responsibility.The traffic accident crime subjective aspect of the fault is the only, and cannot be deliberately. Compared to other acts causing serious injury, death of the crime, the crime of causing traffic casualties were relatively light punishment regulations. Act as a violation of the traffic regulations intentionally, but to cause harm the public safety results must be based on negligence, if people act to cause harm public security is the outcome of a hope or laissez-faire attitude, then the action should be identified as intentional, also should not apply the provisions of the crime of causing traffic casualties, and should be in accordance with its consistent with the constitutive elements of crime conviction and punishment. The traffic accident crime negligence includes two types:negligence of crime of causing traffic casualties and overconfident of crime of causing traffic casualties. On this foundation, the author analyzed the crime of Traffic Accident Escaping Behavior after traffic accident crime, deliberately hidden, rolling, abandon the victim crime, guiltless traffic accident behavior and drunken driving. In addition, from Germany, Japan and other countries to apply the principle of trust practice, trust and the application of the principle of must have certain social conditions, related to the citizens who are having advanced, high safety performance of the vehicle, developed, excellent transportation facilities and traffic safety, law and moral consciousness. In China, with the car in society greatly popular, road quality, traffic condition of the facilities continue to increase, improve, and can be able to actively comply with traffic rules and regulations of the people, especially in the economically developed southeast coastal cities such as Shanghai, Shenzhen and other has been fully equipped with the applicable trust principles in a car accident a prerequisite.The author used two chapters to do a systematic discusses for the crime of traffic accident. They were the fifth chapter of the traffic accident crime conviction and the sixth chapter of crime of causing traffic casualties circumstances of sentencing. This paper holds that the system or norms derived from the principles of administrative efficiency point of view, the evidence in traffic accident in criminal cases, administrative law enforcement cannot be directly used as the basis of the conviction and sentencing of criminal cases, traffic accident liability confirmation cannot be as identified traffic accident crime basis. This is mainly because:First, administrative responsibility and criminal responsibility is not equal. In administrative law and criminal law in criminal law does not have relations, from the attribute, the two are independent of each other, sometimes even the same concept in administrative law and criminal law, the meaning is not identical; Secondly, the administrative responsibility and criminal responsibility cognizance aim, object, mode of different, decided the proof requires different cognizance of criminal responsibility, administrative responsibility proof requirements are higher than that of the proving requirement. Therefore, the public security organs the responsibility of traffic accident, cannot be directly recognized as the crime of causing traffic casualties. While the administrative responsibility conclusion to be criminal procedure adopted by the relevant authorities, must review. This article also discusses the traffic accident guilty of one crime and several issues of crime of. This paper argues that:people act in the traffic accident, if the victim is taken away from the scene after the accident hidden or abandonment of the victim without assistance and death, then the person’s act constitutes a crime of intentional homicide. After the traffic accident to find a man serving behavior has been in line with the constitutive elements of the crime of impairing testifying, and impairing testifying behavior and traffic accident behavior does not have implicated relationship or absorption, do not belong to the statutory one crime or a crime condition, therefore, to find others. After traffic accident behavior, must execute punishment. In addition, the behavior person in vehicle theft and traffic accident behavior and caused major traffic accidents, respectively constitute theft and traffic accident crime, should be punished. The author discusses the traffic accident crime this crime and other crime, crime and crime of dangerous driving as well as the basis, mainly discusses some problem studies of traffic accident crime, voluntary surrender, compensation and the escape problem.On the accomplice, this part is divided into two problems:first, theory on judicial explanation about "accomplice" provisions of the dispute. Two, the crime of causing traffic casualties do not exist in the common crime. This paper argues that, after the traffic accident, abetting who instigate people escape behavior, as negligent crime as an accomplice is contrary to our criminal law theory. In this case, to escape and escape the perpetrators of the crime of intentional homicide crime constitutes a common molecular. Instigation of escape clearly know their instigating behavior will cause the perpetrators escape and do not rescue the injured, also recognized by its instigated the perpetrators escape behavior leads to the wounded to death consequences, thus instigating of escape on subjective has the intentional of homicide. For the perpetrators after the accident occurred, by the instigation of the escape by the instigation of the escape of the perpetrators on the victim’s injuries, geographical location, and escape without rescue. So the results of the possible hazards in general than the unit in charge of personnel, the vehicle owner, contractor, or passengers with a more comprehensive and intuitive understanding, but regardless of to rescue obliged to run away and abandon the victim, and thus have a common intentionally instigate escape constitute as intentional homicide. This common intention to commit a crime and not as a common causes death of the victim happens, accord with our country criminal law about the common crime theory, should constitute the crime of intentional homicide crime, and should not form such as the judicial interpretation of the constitution of crime of causing traffic casualties. In the absence of common crime according to the criminal law should be made before modification, the existing provisions of joint negligence crime, according to their degree of fault and the degree of responsibility for their punishment, punishment principle. Related to the traffic of the compensation problem, this part analyzes the compensation for traffic accident crime punishment and penalty implementation, based on the factors that influence, focuses on two questions:First, the Crime of claims paying ability. This article incapable of the amount of compensation in the judicial interpretation is questionable as to incriminate the standard. Of course, has not been modified to improve before the relevant judicial interpretations have the force of law, and so should strictly be enforced in the judicial practice. Second, the crime of traffic casualties of mental compensation, this paper argues that, with the development of society, the criminal incidental civil lawsuit limitation of mental compensation approach is doing more harm than good, is not desirable. First of all, the criminal supplementary civil action limit compensation for spiritual damage will cause the irreconcilable conflict of laws. Secondly, the criminal supplementary civil action limitation of compensation for spiritual damage is unrealistic and not scientific. Finally, the criminal supplementary civil action limitation of spiritual damage compensation is bound to increase party appeal to tired and people’s court’s work load, reduced the efficiency of lawsuit. Therefore, in the revised criminal law and the criminal procedure law, should be in the criminal supplementary civil action increased damages the spirit of the content, to perfect our system of compensation for mental damage.On the crime of causing traffic casualties problem of surrendered, this part first based on December22,2010the Supreme People’s court "Regarding the handling of voluntary surrender and meritorious performance on a number of specific issues opinions" provisions after the traffic accident must be completed to protect the scene, rescue the injured and to report to the public security organ three statutory obligations can be identified as having the surrender conditions about, discusses the meaning and the establishment of conditions, voluntary surrender traffic accident crime whether there is confession on the basis of detailed analysis, after the traffic accident alarm identify himself and the crime of causing traffic casualties in some special situations of surrender. On the escape problem, escape behavior after traffic accident has the conviction and sentencing of double identity. How to correctly understand the escape behavior, on the conviction and sentencing of the crime of causing traffic casualties has important significance. Escape behavior after traffic accident has the following two features:first, to escape the legal sanctions fluke mentality. Second, do not perform due to the resulting legal obligations. This article from the escape place and escape consciousness two respects analyzed escape behavior."Death caused by escape" intrinsic legal requirements:first, the escape behavior and traffic accident behavior stage. The escape behavior is not an independent crime, is the traffic accident’s subsequent behavior. Second,"escape" and the death of the victim results between criminal law of direct causality, causal sequence and certainty. This paper also describes the escape behavior of main body, escape behavior main body can be divided into two types:one is the principal subject, namely direct implementation escape actors; two is the main body that directs the accomplice, traffic accident, forcing the driver escaped.The seventh chapter the traffic accident crime legislation improvement, it is about our country traffic accident crime legislation improvement, can draw lessons from foreign countries which are more reasonable than China, to avoid the traffic accident crime in response to various traffic accident behavior occurs when stretched in the embarrassing situation. It could be improved from the following several aspects:1. To improve the escape behavior after traffic accident a separate crime, the establishment of a separate "traffic accident crime ". Escaping behavior after causing a traffic accident crime should be independent and the crime of causing traffic casualties practice or by absorption of commit processing. Traffic accident and escape are two independently act, there is a separate crime conditions. Traffic accident behavior is not to comply with traffic regulations notice obligation, violate uncertain or most people’s lives and health and safety of the public and private property. Escape is the person who after a traffic accident took place, in order to escape legal punishment and rescue duty, thus resulting in the death of the victim.2. Improve the provisions of the crime of dangerous driving. First, specific forms of dangerous driving offenses are not statutory, but in judicial practice with the development of society will emerge out of the type. Criminal legislation should not only consider the current social development, targeted for the legislation of criminal law, but also to maintain moderate advance. Otherwise, if only when certain acts harmful to society in a certain period of prominence, the criminal law to start the legislative process to perfect criminal law, so the legislation of criminal law will be in a passive state delay, it is difficult to effectively play its legal effect. Secondly, setting up the crime of dangerous driving for a while included dangerous driving, dangerous crime committed the offence aggravated consequence crime situation and the. Thirdly, in legal punishment, dangerous driving the statutory sentence of the crime of setting should adhere to three principles:first is dangerous driving the punishment of crime should be coordinated with responsibility; second is a dangerous driving crime should be in a dangerous way and harm public security crime and other crimes of convergence; third is the principal shall attach punishment, penalty method with non-punishment.3.To improve the traffic accident crime, and set the addition of fine penalty and qualification penalty. On the crime of causing traffic casualties aggravated punishment, not severe performance, and it is currently advocated the criminal Strict and Generous policy performance. On the criminal policy of combining punishment with "Strict and Generous", it should depend on the fact and make the right decision. Traffic accident crime is a kind of serious crimes against public security, so to apply more severe penalty, and the current criminal law of our country has nothing to do with the traffic accident crime punishment should reflect the "Strict". So we should raise the traffic accident crime, so that the traffic accident behavior punishment will be more reasonable. Our country criminal law also should be considered for the crime of causing traffic casualties increase fines and provision deprives the crime person driving qualifications punishment. Fine penalty can not only make the case to be handled promptly and efficiently, but also to the greatest degree of freedom penalty inherent drawbacks of elimination. While driving for deprivation, can be a period of deprivation, can also be a lifelong deprivation. In criminal law, the crime of causing traffic casualties added revoked molecular driving license or deprived of its driving, rather than administrative regulations in the revocation of the driving license of punishment in nature to stern.

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