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The Analysis on Drunk Driving Type of Dangerous Driving in the Light of Criminal Law

Author: LiLiang
Tutor: DengWei
School: Southwest University of Political Science
Course: Criminal law
Keywords: Drunk Driving Dangerous Driving Crime Abstract Dangerous Crime Public Security
CLC: D924.36
Type: Master's thesis
Year: 2012
Downloads: 37
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Abstract


As a newly added crime,“dangerous driving” was born under the background of therapid development of economy and society,and the strong demand of the current judicialpractice. Before setting up and improving the relevant legal provisions,its application wouldrun into various problems.The speech about “drunk driving should not all be criminalized” by grand justice ZhangJun,the vice-presidentof China’s supreme court,in the meeting of countrywide courts criminaltrial work has caused heated controversies and discussions among all social sectors.To avoidresulting in the broadening of the scope of attack in criminal justice,and make rational use oflimited judicial resources,it is proposed to be guided by the spirit of Article13of CriminalLaw,authorize the judicial branches relatively reasonable discretion by setting the ranges of“alcohol level” which could be stipulated in laws or Judicial Interpretations,and reserve thepractice of fining and detaining for drunk driving behavior according to the Road TrafficSecurity Act,so that it could link up administrative penalty and criminal punishmentreasonably,and avoid to criminalize all drunk driving.According to Supreme People’s Court “the Explanation of a Certain Number ofproblems About Hearing Traffic Accident Criminal Case Applicable Law”(hereinafterreferred to as the Explanation.), whoever makes the lose of others’ or public propertyreaching or more than300,000Yuan,and is fully or mainly responsible for this accident,butincapacitate to compensate,shall be sentenced to fixed-term imprisonment of not more thanthree years or criminal detention.Under the circumstances that adding “dangerousdriving”,if according to the Explanation,to the persons who act the same in kind,the one whois able to compensate may be charged with dangerous driving,and the one who is incapable tocompensate may be charged with “traffic accident”.Such stipulation that taking the ability tocompensate as important factor effecting punishment confounds the relationship of criminalresponsibility and civil liability,and it would cause the injustice of the application of CriminalLaw.It is necessary to amend “whether have the ability to compensate” to “the one whocompensate positively,could be given a lighter or mitigated punishment”.So that it woulddefend the principle “equality of everyone before the law”,and keep the reasonable linkbetween “dangerous driving” and “traffic accident”. Dangerous driving belongs to crimes against public security,so its founding doesn’trequire causing serious results.It is abstract dangerous crime in charater.The founding ofArticle114of Criminal Law “dangerous method harm public security crime”also doesn’t baseon the serious results.And it is concrete dangerous crime.The dangerous driving behaviorwhich dose not cause serious results is similar to “dangerous method harm public securitycrime” in its form of expression. To draw a dividing line between the two crimes,the standardshould be held that whether the person’s behavior concretely endanger public security.Injudicial practice,under such circumstance that the dangerous driving behavior that have notcause serious results,but have endangered the public security,and the actor hopes or indulgesharm result produce,the actor shall be convicted and punished according to the provisions inArticle114of Criminal Law.

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CLC: > Political, legal > Legal > Chinese law > Criminal law > Sub-rule > Detrimental to order of social administration
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