我国醉酒驾驶行为刑法规制研究
发布时间：2018-08-25 10:04
【摘要】：自从《刑法修正案(八)》拉开醉驾入刑帷幕以来,有关醉酒驾驶行为刑法规制的议题就一直保持着较高的热度。《刑法修正案(九)》对危险驾驶罪进行了完善,其中构成危险驾驶罪的醉酒驾驶这一客观行为方式依然沿用了刑法修正案(八)的内容,同时,学界对危险驾驶罪中最受关注的行为方式——醉酒驾驶行为的讨论却从未停止。在理论界,有关醉酒驾驶行为是否应当入罪、是否适用“但书”出罪、罪过形式、醉酒标准等问题引起了学者们广泛的讨论,在实务界,处实刑还是缓刑、量刑是否均衡等方面也同样存在诸多问题。社会上的媒体、学者及司法人员对醉酒驾驶这一议题也是颇为关注。本文在前人的研究基础上,对我国醉酒驾驶行为刑法规制问题进行进一步的探析,主体部分共包括四个模块:第一个模块从法理分析的角度对醉酒驾驶犯罪是否存在例外情形进行了详细地分析。考虑到醉驾入刑已经成为事实这一原因,本文结合了典型案例重点讨论了醉酒驾驶行为能否存在不入罪的例外情形,最后给出了醉酒驾驶一律入刑的观点。接着对醉驾型危险驾驶罪的性质进行了分类解析,阐述了行为犯与危险犯、具体危险犯与抽象危险犯的概念,又结合醉酒驾驶行为的本质特征与前述概念的相同之处,对醉驾型危险驾驶罪进行了归类,最终分析得出醉驾型危险驾驶罪属于抽象危险犯的范畴。第二个模块分析了醉驾型危险驾驶罪犯罪构成。对其客观行为方式进行了深入的剖析,特别是对该罪的核心——醉酒标准进行了全面的讨论,并主张采用主客观结合的方法来判定是否达到实质醉酒状态。对该罪的主观方面也进行了论述,认为主观上具有罪过都要承担责任。第三个模块主要从此罪与彼罪的层面阐述了醉驾型危险驾驶罪与相关犯罪的界限。紧扣客观行为方式和行为后果比较了醉驾型危险驾驶罪与相关犯罪的不同之处,以期在司法实务中对醉驾行为的准确定性提供帮助。第四个模块重点介绍了一些发达国家对醉酒驾驶行为的刑法规制制度。在与域外法律制度的对比中发现问题,通过对问题的分析,本文也就立法、司法实践中的不足之处给出了一些对策,以期不断完善我国醉酒驾驶行为刑法规制体系。
[Abstract]:Since the "Amendment of the Criminal Law (8) > opened the curtain of driving drunk into the death penalty, the topic of criminal law regulation on drunk driving behavior has always maintained a relatively high degree of heat. < Amendment (9) > of the Criminal Law has improved the crime of dangerous driving." The objective behavior of drunken driving, which constitutes the crime of dangerous driving, still follows the content of the Criminal Law Amendment (8). At the same time, the discussion of drunken driving, the most concerned behavior in the crime of dangerous driving, has never stopped in academic circles. In the theoretical circle, whether drunken driving behavior should be criminalized, whether the crime of "proviso" should be applied, the form of crime, the standard of drunkenness and so on has aroused extensive discussion among scholars. In the practical field, the actual punishment is still suspended. There are also many problems in the balance of sentencing. The media, academics and judiciary are also concerned about drunk driving. On the basis of previous studies, this paper makes a further analysis of the criminal regulation of drunken driving behavior in China. The main part consists of four modules: the first module analyzes in detail whether there are exceptions to the crime of drunk driving from the point of view of legal theory. Considering the fact that drunken driving has become a fact, this paper mainly discusses whether there is an exception to the crime of drunken driving in combination with typical cases, and finally gives the point of view that drunken driving is uniformly punished. Then, it analyzes the nature of drunk driving dangerous driving crime, expounds the concepts of behavior crime and dangerous crime, concrete dangerous crime and abstract dangerous crime, and combines the essential characteristics of drunken driving behavior with the same place of the above-mentioned concept. This paper classifies the crime of drunk driving dangerous driving, and finally concludes that the crime of drunk driving belongs to the category of abstract dangerous crime. The second module analyzes the constitution of the crime of drunk driving dangerous driving. This paper makes a deep analysis of its objective behavior mode, especially discusses the core of the crime-drunkenness standard, and advocates to use the method of combining subjective and objective to judge whether the actual drunken state has been achieved. The subjective aspect of the crime is also discussed. The third module mainly expounds the boundary between drunk driving dangerous driving crime and related crimes. This paper compares the difference between the crime of drunk driving dangerous driving and the related crime by clinging to the objective behavior and the consequences in order to provide help for the accurate characterization of drunken driving in judicial practice. The fourth module mainly introduces some developed countries' criminal law regulation system on drunken driving behavior. Through the analysis of the problems, this paper also gives some countermeasures on the shortcomings of legislation and judicial practice, in order to improve the criminal law regulation system of drunken driving behavior in our country.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.3
[Abstract]:Since the "Amendment of the Criminal Law (8) > opened the curtain of driving drunk into the death penalty, the topic of criminal law regulation on drunk driving behavior has always maintained a relatively high degree of heat. < Amendment (9) > of the Criminal Law has improved the crime of dangerous driving." The objective behavior of drunken driving, which constitutes the crime of dangerous driving, still follows the content of the Criminal Law Amendment (8). At the same time, the discussion of drunken driving, the most concerned behavior in the crime of dangerous driving, has never stopped in academic circles. In the theoretical circle, whether drunken driving behavior should be criminalized, whether the crime of "proviso" should be applied, the form of crime, the standard of drunkenness and so on has aroused extensive discussion among scholars. In the practical field, the actual punishment is still suspended. There are also many problems in the balance of sentencing. The media, academics and judiciary are also concerned about drunk driving. On the basis of previous studies, this paper makes a further analysis of the criminal regulation of drunken driving behavior in China. The main part consists of four modules: the first module analyzes in detail whether there are exceptions to the crime of drunk driving from the point of view of legal theory. Considering the fact that drunken driving has become a fact, this paper mainly discusses whether there is an exception to the crime of drunken driving in combination with typical cases, and finally gives the point of view that drunken driving is uniformly punished. Then, it analyzes the nature of drunk driving dangerous driving crime, expounds the concepts of behavior crime and dangerous crime, concrete dangerous crime and abstract dangerous crime, and combines the essential characteristics of drunken driving behavior with the same place of the above-mentioned concept. This paper classifies the crime of drunk driving dangerous driving, and finally concludes that the crime of drunk driving belongs to the category of abstract dangerous crime. The second module analyzes the constitution of the crime of drunk driving dangerous driving. This paper makes a deep analysis of its objective behavior mode, especially discusses the core of the crime-drunkenness standard, and advocates to use the method of combining subjective and objective to judge whether the actual drunken state has been achieved. The subjective aspect of the crime is also discussed. The third module mainly expounds the boundary between drunk driving dangerous driving crime and related crimes. This paper compares the difference between the crime of drunk driving dangerous driving and the related crime by clinging to the objective behavior and the consequences in order to provide help for the accurate characterization of drunken driving in judicial practice. The fourth module mainly introduces some developed countries' criminal law regulation system on drunken driving behavior. Through the analysis of the problems, this paper also gives some countermeasures on the shortcomings of legislation and judicial practice, in order to improve the criminal law regulation system of drunken driving behavior in our country.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.3
【相似文献】
相关期刊论文 前10条
1 赵晨鹰;青年攻击性驾驶行为的成因研究[J];青年研究;2003年12期
2 荣亮;卢思宇;;浅析醉酒驾驶行为的定性[J];法制与社会;2011年20期
3 荀福峥;;浅析醉酒驾驶行为的法律规制[J];行政与法;2012年08期
4 张思思;;理性看待醉酒驾驶行为的刑法规制[J];法制与社会;2014年10期
5 苏永生;;醉酒驾驶行为的界定[J];河北大学学报(哲学社会科学版);2011年04期
6 靳婷;;美国道路交通安全法对“分心驾驶行为”的预防惩治措施及启示[J];中国检察官;2013年04期
7 李尧s，
本文编号：2202548
本文链接：https://www.wllwen.com/falvlunwen/xingfalunwen/2202548.html
