“醉驾”入罪情节研究

发布时间：2018-03-19 08:59

本文选题：醉驾　切入点：情节　出处：《福州大学》2014年硕士论文　论文类型：学位论文

【摘要】：随着经济的发展,生活水平的提高,汽车渐渐进入百姓家,人们的日常生活变得非常便利,但于此同时人们的健康、财产也受到了威胁。近年来,醉驾行为频发,给社会造成了非常恶劣的影响。为了惩治醉驾行为,《中华人民共和国刑法修正案(八)》增设了危险驾驶罪,规定：“在道路上驾驶机动车追逐竞驶,情节恶劣的,或者在道路上醉酒驾驶机动车的,处拘役,并处罚金。”但是,事情并不像我们想的那样简单,以为立法就可以解决一切问题,我们更应该考虑立法以后的司法适用问题。修八对醉驾并没有做过多详细的规定(比如是否区分情节)。于是人们提出了这样一些问题：只要在道路上醉酒驾驶了机动车都应当被定罪吗?虽然修八对醉驾的规定没有涉及情节,那实践执行中是否要积极限制醉驾定罪呢?如果对醉驾定罪时考量情节,应该考量哪些情节呢?于此同时,对于醉驾行为,是否应当一律入罪,司法机关和法律专家学者们的观点也出现了分歧。笔者认为,醉驾并不能一律作为犯罪处理,而应进行区别对待。本文分三个部分：引言、正文和结论。首先由三个比较典型的醉驾案例作为引言,通过对三个案例的分析,得出醉驾是有不同情节和不同危害性的,说明醉驾不是单一的,而是具有复杂多样性的。由此,在对醉驾的定罪问题上,不能单纯地靠法条来认定,因为实践中复杂多变的情形是常常出现的,这就要求对醉驾是否一律入罪,是否需要考虑情节作思考,这样才能应付实践中的问题,才能更好的适用刑法。正文部分又分三个部分来阐述。第一部分是关于研究醉驾情节的意义。第二部分是关于醉驾是否一律入罪的争议。不管是公检法司法机关还是法律专家学者们,他们对待这一问题都有不同的看法和观点。实际上,总结起来,关于醉驾是否一律入罪主要有两种观点,一部分人认为应该一律入罪,另一部分人认为不应该一律入罪,支持醉驾一律入罪者,他们认为主要基础在于一律入罪符合立法者的原意,尊重法条的基本含义。反对醉酒驾驶一律入罪的人,他们主要是考虑到了刑法第十三条但书。“但书”规定“情节显著轻微,危害不大的不认为是犯罪。”第三部分是文章的重点部分,判断醉驾是否入罪应该对其加以情节上的考量,不应该一刀切地将其一律入罪,这也是笔者的观点。主要从两方面来探讨醉驾入罪应当考虑情节的理由,并且笔者对醉驾入罪应当考量哪些情节给出了几点建议。
[Abstract]:With the development of economy and the improvement of living standard, cars gradually enter people's homes. People's daily life becomes very convenient, but at the same time, people's health and property are also threatened. In recent years, drunken driving behavior occurs frequently. In order to punish drunken driving, the Amendment to the Criminal Law of the people's Republic of China (8) establishes the crime of dangerous driving, which stipulates: "if you drive a motor vehicle on a road and chase after a race, if the circumstances are abominable, Or if you drive a motor vehicle drunk on the road, you will be sentenced to criminal detention and a fine. "but things are not as simple as we think, thinking that legislation can solve all the problems. We should consider the issue of judicial application after the legislation. The amendment to drunk driving does not make too many detailed provisions (such as whether to distinguish the circumstances). So people have raised the following questions: as long as drunk driving on the road. Should motor vehicles be convicted? Although the regulations on drunk driving do not deal with the circumstances, is it necessary to actively restrict the conviction of drunk driving in practice? If the circumstances are taken into account in the conviction of drunk driving, what circumstances should be considered? At the same time, the views of the judiciary and legal experts on whether drunken driving should all be criminalized have also been divided. The author believes that drunk driving is not always treated as a crime. This paper is divided into three parts: introduction, text and conclusion. Firstly, three typical cases of drunk driving are introduced. Through the analysis of the three cases, it is concluded that drunk driving has different plot and different harmfulness. It shows that drunk driving is not single, but complex and diverse. Therefore, in the conviction of drunk driving, we cannot rely solely on legal provisions to determine it, because complex and changeable situations often occur in practice. This requires thinking about whether drunk driving is all criminalized and whether the circumstances need to be considered in order to cope with practical problems. In order to better apply the criminal law. The main body part is divided into three parts to elaborate. The first part is about the meaning of studying drunk driving circumstances. The second part is about whether drunk driving is criminalized or not. No matter whether it is the public security bureau, procuratorate, court or judicial organ. And legal experts and scholars, They all have different views and views on this issue. In fact, to sum up, there are mainly two views on whether drunk driving should all be criminalized. Some people think that all should be criminalized, while others think that all should not be criminalized. They believe that the main basis is that all decriminalization conforms to the intent of the legislator and respects the basic meaning of the law. Those who oppose the uniform criminalization of drunken driving, They mainly took into account the 13th provisos to the Criminal Law. The proviso states that "the circumstances are significantly minor and the harm is not considered a crime." the third part is the main part of the article, judging whether or not drunk driving should be criminalized should be taken into consideration in the circumstances. It is my point of view that the crime should not be incriminated in a one-size-fits-all manner. This paper mainly discusses the reasons why the circumstances should be considered in the crime of drunk driving from two aspects, and gives some suggestions on which circumstances should be considered in the crime of driving drunk.
【学位授予单位】：福州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

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