醉酒驾驶刑法适用问题研究
发布时间：2018-08-19 19:44
【摘要】：《中华人民共和国刑法修正案(八)》将醉酒驾驶行为入罪至今已近三年，由于在司法实践中醉酒驾驶行为表现各异，同时，“醉驾”入刑后，包括最高法院、公安部、最高检察院在内的各部门均对“醉驾入罪”问题发表了各自的观点，甚至相左的观点。特别是原最高法院副院长张军关于“醉驾是否一律入罪，应当适用刑法但书限制”的观点，使本来在理论界已经存在的关于“醉驾入罪”问题的争议，再次高潮迭起，而且在实务界也产生了分歧，，各种观点不绝于耳。而且，随着《刑法修正案八》的贯彻实施，在查处醉酒驾驶的过程中暴露出的问题也越来越多，关于“醉酒驾驶”是否一律入刑、如何理解在道路上醉酒驾驶机动车、醉驾型危险驾驶罪的主观罪过以及与相关罪名之间的界限如何掌握、现行刑法关于醉酒驾驶的量刑规范到底如何适用才能做到适用法律的统一，实现法律的公平正义等等。应当说，近年来，这些问题一直困扰着刑法理论界和司法实务界。也在很大程度上影响了各地司法机关对法条的统一适用，同案不同判现象严重。因此，也就成为人们研究和探讨的焦点。为了进一步厘清相关问题，本文以醉酒驾驶入罪以来司法实践中逐渐暴露出的问题为研究的出发点，通过对刑法理论和司法实务的分析，特别是对醉酒驾驶成立犯罪构成要件、入罪与出罪、此罪与彼罪等问题的分析，指出目前我国《刑法》在醉酒驾驶问题上相关规范的缺失，尤其是在法定刑配置上的不足和量刑规范上的失衡，在对大量已有研究成果和司法实务认真学习和分析的基础上，结合我国实际，提出了完善相关刑事立法的建议，力求进一步彰显法律的公平和正义。本文正文分为以下四部分： 第一部分，论述了醉酒驾驶的基本理论，包括对醉酒驾驶的基本概念的阐述，对醉酒驾驶检测标准的介绍和分析，以及对“醉驾入罪”必然性的阐释，指出“醉驾入罪”具有重要的理论和现实意义，是客观实践的需要，也是立法完善的需要。 第二部分，是对醉酒驾驶成立犯罪构成要件的分析。首先是对醉酒驾驶犯罪的主体构成要件的判断，如多个主体构成犯罪的情形和不构成犯罪主体的情形；其次是对醉酒驾驶犯罪的主观构成要件的判断，分别从故意说、过失说和严格责任说的角度进行了分析；再次是对醉酒驾驶犯罪的客观方面构成要件的判断，指出应如何准确理解刑法关于“在道路上醉酒驾驶机动车”的含义。 第三部分，是对醉酒驾驶出罪与入罪、此罪与彼罪的分析。首先是对醉酒驾驶入罪与出罪的探讨分析，指出了入罪的必要性和出罪的原因以及应当掌握的标准；其次是对醉酒型危险驾驶罪与交通肇事罪和以危险方法危害公共安全罪三者的区别和存在竞合问题的分析。 第四部分，是关于醉酒驾驶犯罪的刑罚处罚完善问题。主要是对现行刑法关于醉酒型危险驾驶罪的法定刑配置以及醉酒型危险驾驶罪的量刑规范两个部分进行分析和研究。指出我国刑法在醉酒型危险驾驶罪的法定刑配置上过于单一，刑法体系不能协调统一，罪刑失衡现象频繁，醉驾累犯问题难以解决等，为了克服由于单一配置存在的这些弊端，现行立法应当在现有基础上增加有期徒刑，真正做到刑当其罪、刑足制罪；同时鉴于目前司法实践中存在的同案不同判等严重的量刑失衡问题，指出导致醉驾量刑失衡的原因有多个方面，既有立法表述上的问题，也有刑罚配置上的问题，还有上级法院审判指导的缺失问题等等，所以，对于醉酒驾驶问题应当从不同方面进行规制，不仅要在立法和司法上做到宽严相济，实现量刑的均衡化、规范化，而且也要逐步实现司法行政指导和推广社区矫正等的多元治理。
[Abstract]:It has been nearly three years since the Criminal Law Amendment (8) of the People's Republic of China criminalized drunken driving. Because of the different manifestations of drunken driving in judicial practice, various departments, including the Supreme Court, the Ministry of Public Security and the Supreme Procuratorate, have expressed their own views on the issue of drunken driving, even the same. Especially the former Vice-President of the Supreme Court Zhang Jun's viewpoint that "whether drunk driving is criminalized or not should be subject to the proviso of criminal law" has made the controversy on the issue of "drunk driving is criminalized" in the theoretical circles rise again and again, and there are also differences in the practical circles, and various viewpoints have been heard in endlessly. The implementation of the Eighth Amendment to the Criminal Law has exposed more and more problems in the investigation and punishment of drunken driving. With regard to whether "drunken driving" is punished, how to understand the subjective culpability of driving a motor vehicle drunk on the road and how to grasp the boundaries between the crime of dangerous driving drunk and the related charges, the current Criminal Law is about It should be said that in recent years, these problems have been plagued by the circles of criminal law theory and judicial practice, and to a great extent, affected the uniform application of the law by judicial organs around the country. In order to further clarify the relevant issues, this paper takes the problems gradually exposed in the judicial practice since the incrimination of drunk driving as the starting point for the study, through the analysis of criminal law theory and judicial practice, especially the constitutive elements of the conviction of drunk driving, conviction and guilt, this crime and that The analysis of crime and other issues points out the lack of relevant norms on drunken driving in China's Criminal Law at present, especially the shortage of statutory penalty allocation and the imbalance of sentencing norms. On the basis of careful study and analysis of a large number of existing research results and judicial practice, and combined with China's actual situation, this paper puts forward the construction of improving relevant criminal legislation. The article is intended to further demonstrate the fairness and justice of the law. The text is divided into four parts:
The first part discusses the basic theory of drunk driving, including the elaboration of the basic concepts of drunk driving, the introduction and analysis of the testing standards of drunk driving, and the interpretation of the inevitability of "drunk driving into crime", pointing out that "drunk driving into crime" has important theoretical and practical significance, is the need of objective practice, but also the need for perfect legislation. Yes.
The second part is the analysis of the constituent elements of the crime of drunken driving. First, the judgment of the constituent elements of the subject of the crime of drunken driving, such as the situation that multiple subjects constitute a crime and do not constitute the subject of the crime; second, the judgment of the subjective constituent elements of the crime of drunken driving, respectively from the intentional theory, negligence theory and strict liability. From the angle of Ren Shuo, this paper analyzes the objective elements of the crime of drunk driving, and points out how to accurately understand the meaning of "driving a motor vehicle drunk on the road" in the criminal law.
The third part is the analysis of the crime and conviction of drunken driving, the crime and the crime. First of all, the discussion and analysis of the crime and conviction of drunken driving, pointed out the necessity of conviction and the reasons for the crime and the standards to be mastered; secondly, the crime of drunk dangerous driving and traffic accident and the crime of endangering public safety by dangerous means. The analysis of differences and concurrence problems.
The fourth part is about the perfection of penalty for drunk driving crime.It mainly analyzes and studies the legal penalty allocation of drunk dangerous driving crime and the sentencing norm of drunk dangerous driving crime in the current criminal law.It points out that the legal penalty allocation of drunk dangerous driving crime in our criminal law is too single. The criminal law system can not be coordinated and unified, the imbalance between crime and punishment is frequent, the problem of drunk driving recidivist is difficult to solve, in order to overcome these shortcomings due to a single configuration, the current legislation should be added to the existing basis of fixed-term imprisonment, really do the crime of punishment as its crime, punishment is sufficient to make the crime; at the same time, in view of the current judicial practice, there are different sentences in the same case, and so Severe imbalance of sentencing points out that there are many reasons leading to imbalance of sentencing for drunk driving. There are problems in legislative formulation, allocation of penalties, lack of judicial guidance in higher courts and so on. Therefore, the problem of drunk driving should be regulated from different aspects, not only in legislation and judicature. Combining leniency with severity to achieve a balanced and standardized sentencing, but also to gradually achieve judicial administration guidance and promote community correction and other multiple governance.
【学位授予单位】：河北师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
本文编号：2192645
[Abstract]:It has been nearly three years since the Criminal Law Amendment (8) of the People's Republic of China criminalized drunken driving. Because of the different manifestations of drunken driving in judicial practice, various departments, including the Supreme Court, the Ministry of Public Security and the Supreme Procuratorate, have expressed their own views on the issue of drunken driving, even the same. Especially the former Vice-President of the Supreme Court Zhang Jun's viewpoint that "whether drunk driving is criminalized or not should be subject to the proviso of criminal law" has made the controversy on the issue of "drunk driving is criminalized" in the theoretical circles rise again and again, and there are also differences in the practical circles, and various viewpoints have been heard in endlessly. The implementation of the Eighth Amendment to the Criminal Law has exposed more and more problems in the investigation and punishment of drunken driving. With regard to whether "drunken driving" is punished, how to understand the subjective culpability of driving a motor vehicle drunk on the road and how to grasp the boundaries between the crime of dangerous driving drunk and the related charges, the current Criminal Law is about It should be said that in recent years, these problems have been plagued by the circles of criminal law theory and judicial practice, and to a great extent, affected the uniform application of the law by judicial organs around the country. In order to further clarify the relevant issues, this paper takes the problems gradually exposed in the judicial practice since the incrimination of drunk driving as the starting point for the study, through the analysis of criminal law theory and judicial practice, especially the constitutive elements of the conviction of drunk driving, conviction and guilt, this crime and that The analysis of crime and other issues points out the lack of relevant norms on drunken driving in China's Criminal Law at present, especially the shortage of statutory penalty allocation and the imbalance of sentencing norms. On the basis of careful study and analysis of a large number of existing research results and judicial practice, and combined with China's actual situation, this paper puts forward the construction of improving relevant criminal legislation. The article is intended to further demonstrate the fairness and justice of the law. The text is divided into four parts:
The first part discusses the basic theory of drunk driving, including the elaboration of the basic concepts of drunk driving, the introduction and analysis of the testing standards of drunk driving, and the interpretation of the inevitability of "drunk driving into crime", pointing out that "drunk driving into crime" has important theoretical and practical significance, is the need of objective practice, but also the need for perfect legislation. Yes.
The second part is the analysis of the constituent elements of the crime of drunken driving. First, the judgment of the constituent elements of the subject of the crime of drunken driving, such as the situation that multiple subjects constitute a crime and do not constitute the subject of the crime; second, the judgment of the subjective constituent elements of the crime of drunken driving, respectively from the intentional theory, negligence theory and strict liability. From the angle of Ren Shuo, this paper analyzes the objective elements of the crime of drunk driving, and points out how to accurately understand the meaning of "driving a motor vehicle drunk on the road" in the criminal law.
The third part is the analysis of the crime and conviction of drunken driving, the crime and the crime. First of all, the discussion and analysis of the crime and conviction of drunken driving, pointed out the necessity of conviction and the reasons for the crime and the standards to be mastered; secondly, the crime of drunk dangerous driving and traffic accident and the crime of endangering public safety by dangerous means. The analysis of differences and concurrence problems.
The fourth part is about the perfection of penalty for drunk driving crime.It mainly analyzes and studies the legal penalty allocation of drunk dangerous driving crime and the sentencing norm of drunk dangerous driving crime in the current criminal law.It points out that the legal penalty allocation of drunk dangerous driving crime in our criminal law is too single. The criminal law system can not be coordinated and unified, the imbalance between crime and punishment is frequent, the problem of drunk driving recidivist is difficult to solve, in order to overcome these shortcomings due to a single configuration, the current legislation should be added to the existing basis of fixed-term imprisonment, really do the crime of punishment as its crime, punishment is sufficient to make the crime; at the same time, in view of the current judicial practice, there are different sentences in the same case, and so Severe imbalance of sentencing points out that there are many reasons leading to imbalance of sentencing for drunk driving. There are problems in legislative formulation, allocation of penalties, lack of judicial guidance in higher courts and so on. Therefore, the problem of drunk driving should be regulated from different aspects, not only in legislation and judicature. Combining leniency with severity to achieve a balanced and standardized sentencing, but also to gradually achieve judicial administration guidance and promote community correction and other multiple governance.
【学位授予单位】：河北师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
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