论醉酒犯罪的法律适用
发布时间：2018-09-05 21:02
【摘要】：摘要：对于何为醉酒这一概念,无论是医学理论界还是实践中,一致认为醉酒即为急性酒精中毒,原因在于某一时段摄入了含有大量的乙醇的食物导致了人体的中枢神经系统由兴奋转为抑制的状态,特征非常明显。一般而言同一时间饮入大量的酒,但不同的人醉酒的快慢是不同的,如果是饮入大量酒后,就马上醉的,则为急性酒精中毒,反之则为慢性酒精中毒。现今很多学者将醉酒分为三大类,一类是普通性醉酒,另一类是复杂性醉酒,还有一类是病理性醉酒。就上述三类醉酒而言,其中的醉酒者的行为都存在着危害他人的风险。然而,正是醉酒的本质导致了危害他人的性质的有所区别。普通醉酒者并没有完全丧失对自己行为的辨认和控制力度,这种醉酒往往不像病理性醉酒那样,人会胡思乱想,甚至其大脑还拥有者辨别事物的能力。醉酒者仅是减弱控制自己行为的能力,在饮酒前和饮酒中对自己的行为有充分的辨认能力,且对酗酒后果也有充分的预见性,只要稍加注意就可以控制自己的醉酒行为。病理性醉酒极为少见,可能与患者的个体素质或原有脑损害如外伤后遗症、癫痫、脑动脉硬化等引起了其大脑超过可以承受酒精浓度的界限。此时,醉酒者已经丧失对自己行为的辨认和控制能力,行为动机不明。我国司法鉴定部门在实践中根据病理性醉酒存在意识障碍的症状,一般判定为无责任能力或排除责任能力。复杂性醉酒者一般情况下体现为说话语调不搭、走路左摆右偏,出现了辨认和控制能力的减弱,有时候兴奋过度,并且容易愤怒,有时候还将愤怒抛向别人,时常产生吵架、伤害事件。但此种行为与环境有某种联系,定向力存在。一般还保持普通醉酒的躯体麻痹症状,是一种缺乏抑制能力的一种醉酒状态,在一定程度上具有一定的辨认能力,评定为限制责任能力。刑事责任能力即实施者符合犯罪构成要件与受到刑罚所应当拥有的符合刑法理论上的主客观相一致原则,就是行为人明知道此行为不可为而胆大包天去为之,但却完全不顾及,毅然实施了危害社会的行为。刑事责任包括两类问题：一是犯罪与否；二是罪过形式。关于醉酒行为人犯罪的案件,我们所需要解决的一个问题是醉酒行为人的危害行为符合何种具体罪的犯罪构成,从实践上来讲,主要是严格区分罪与非罪的界限、正确认定醉酒行为人犯罪的罪过形式。对于醉酒人负刑事责任的根据,国内外学者展开过大量的讨论,主要有社会利益说、预先故意说、原因自由行为说、严格责任说和构成要件符合说。关于醉酒犯罪的刑事责任,结合当前中国的现实社会情况及其刑法的有关规定以及国家的政策,我们认为应当结合“原因自由行为”说和“构成要件符合”说来论述。在醉酒犯罪中,醉酒阶段的行为人通常是具有刑事责任能力的,这就具备了可归责的主观因素,但是根据刑法的有关规定,醉酒行为由于不具有可罚性而不具备归责的客观要素。在醉酒后的行为阶段,行为人由于实施了刑法所禁止的危害社会的行为而具备了可归责的客观条件,但是又由于处于无责任能力状态而缺乏了归责的主观条件。这就出现了主观罪过和所实施的行为像分离的情形,从而导致了醉酒犯罪无法归责,出现了醉酒行为人醉酒后实施的危害社会的行为得不到处罚的现象。关于这一难题的研究,产生了三类学说,他们分别为责任原则维持说、责任原则修正说和责任原则例外说。我们认为责任原则修正说是可取的。就一般而论,责任原则主要具体为“实行行为与责任同在”,不过针对原因自由行为而言,由于其本身的特殊性,并没有表现为通常所讲的“实行行为与责任同在”,恰恰其表现为“行为与责任同在”。在普通醉酒中,根据醉酒行为人对醉酒所持的态度,可以将普通醉酒分为自愿性醉酒和非自愿性醉酒。我们认为,只有自愿性醉酒属于原则自由行为的范畴,而非自由性醉酒不属于原因自由行为的范畴。因为原因自由行为,其强调原因行为和结果行为之间不仅仅是有一种原因自由行为,并且还具有行为意思和结果意思的一致性。通说认为,病理性醉酒人实施的危害社会的行为不应定负刑事责任,因为其行为不符合主客观相一致的犯罪构成要件,我们认为,通说的观点基本上是可取的,但是会存在例外的情形。杂性醉酒者产生危害行为时,因为辨认能力存在,但控制能力有所减弱,所以为限定刑事责任能力。醉酒人实施危害行为之后是否应负刑事责任,关键在于其行为是否符合犯罪的构成要件。关于醉酒犯罪的法律完善,应从加强醉酒犯罪的处罚规定的针对性,在法条中,详细区分醉酒的类型,体现区别对待精神,并根据有关精神病学来划分醉酒人刑事责任的标准,对确定醉酒状态增加严格的程序性规定和完善对醉酒犯罪预防的法律等的方面来完善。
[Abstract]:ABSTRACT: As for the concept of what is drunkenness, both in medical theory and practice, it is generally agreed that drunkenness is acute alcoholism, because a certain period of intake of food containing a large amount of ethanol leads to the human central nervous system from excitement to inhibition of the state, the characteristics are very obvious. Nowadays, many scholars classify drunkenness into three categories: general drunkenness, complex drunkenness and pathological drunkenness. In the case of drunkenness, however, it is the nature of drunkenness that makes a difference in the nature of harmfulness. Ordinary drunkards do not completely lose the recognition and control of their own behavior. This kind of drunkenness is often unlike pathological drunkenness, people will be delusive, or even delusive. The brain also has the ability to distinguish between things. Drunken people only weaken their ability to control their own behavior, have sufficient ability to identify their own behavior before and during drinking, and have sufficient foresight of the consequences of alcoholism, as long as a little attention can control their own drunken behavior. Pathological drunkenness is extremely rare, may be affected. Individual quality or original brain damage such as traumatic sequelae, epilepsy, cerebral arteriosclerosis and so on caused the brain to exceed the limit of alcohol tolerance. At this time, drunken people have lost the ability to identify and control their own behavior, behavior motivation is unclear. In practice, according to pathological drunkenness, the judicial expertise department in China has consciousness barrier. The symptoms of obstruction are generally judged as irresponsibility or exclusion of responsibility. Complexity of intoxication is usually manifested as inappropriate speech, left-handed and right-handed walking, weakening of recognition and control, sometimes over-excited, and prone to anger, sometimes throwing anger at others, and often producing quarrels and injuries. Generally speaking, it is a kind of drunken state which lacks the ability of restraint. To a certain extent, it has the ability of identification and is assessed as the ability of limitation of liability. When possession conforms to the principle of subjective and objective consistency in criminal law theory, it means that the perpetrator knows that the act can not be done boldly, but does not take it into account and resolutely carries out acts that endanger society. Criminal responsibility includes two kinds of problems: whether the crime is committed or not; and the form of crime. One of the problems we need to solve is what kind of specific crime constitutes the harmful act of the drunken actor. In practice, it is mainly to strictly distinguish the boundaries between crime and non-crime, and to correctly identify the criminal form of the drunken actor. There are mainly theories of social interests, such as the theory of free act in cause, the theory of strict liability and the theory of conformity of constitutive requirements. In the drunken crime, the perpetrator in the drunken stage usually has the ability of criminal responsibility, which has the subjective factors of accountability, but according to the relevant provisions of the criminal law, the drunken behavior does not have the objective elements of accountability because it is not punishable. Acts that endanger society prohibited by the law have the objective conditions of imputability, but they lack the subjective conditions of imputability because they are in the state of irresponsibility. This leads to the separation of subjective offences and acts that are carried out, which leads to the impossibility of imputability of drunken crimes and the occurrence of drunken actors who are carried out after being drunk. There are three kinds of doctrines about this problem: the maintenance of the principle of responsibility, the revision of the principle of responsibility and the exception of the principle of responsibility. However, due to the particularity of the act of freedom of cause, it does not show that the usual "act of execution and responsibility coexist", just as it shows that "act and responsibility coexist". In ordinary drunkenness, according to the attitude of the drunken actor towards drunkenness, ordinary drunkenness can be divided into voluntary drunkenness and non-self-indulgence. We believe that only voluntary drunkenness belongs to the category of free act of principle, but not free drunkenness does not belong to the category of free act of reason. The general theory holds that pathological drunken persons should not be criminally liable for the harmful acts against society, because their acts do not conform to the subjective and objective elements of the crime. We believe that the general view is basically desirable, but there will be exceptions. But the ability of control has been weakened, so the ability of criminal responsibility should be limited. Whether the drunken person should bear criminal responsibility after carrying out the harmful act depends on whether his behavior conforms to the constitutive requirements of the crime. It embodies the spirit of different treatment, divides the criminal responsibility of drunken people according to the relevant psychiatry standards, and improves the aspects of determining the drunken state by adding strict procedural provisions and perfecting the laws for preventing drunken crime.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2225452
[Abstract]:ABSTRACT: As for the concept of what is drunkenness, both in medical theory and practice, it is generally agreed that drunkenness is acute alcoholism, because a certain period of intake of food containing a large amount of ethanol leads to the human central nervous system from excitement to inhibition of the state, the characteristics are very obvious. Nowadays, many scholars classify drunkenness into three categories: general drunkenness, complex drunkenness and pathological drunkenness. In the case of drunkenness, however, it is the nature of drunkenness that makes a difference in the nature of harmfulness. Ordinary drunkards do not completely lose the recognition and control of their own behavior. This kind of drunkenness is often unlike pathological drunkenness, people will be delusive, or even delusive. The brain also has the ability to distinguish between things. Drunken people only weaken their ability to control their own behavior, have sufficient ability to identify their own behavior before and during drinking, and have sufficient foresight of the consequences of alcoholism, as long as a little attention can control their own drunken behavior. Pathological drunkenness is extremely rare, may be affected. Individual quality or original brain damage such as traumatic sequelae, epilepsy, cerebral arteriosclerosis and so on caused the brain to exceed the limit of alcohol tolerance. At this time, drunken people have lost the ability to identify and control their own behavior, behavior motivation is unclear. In practice, according to pathological drunkenness, the judicial expertise department in China has consciousness barrier. The symptoms of obstruction are generally judged as irresponsibility or exclusion of responsibility. Complexity of intoxication is usually manifested as inappropriate speech, left-handed and right-handed walking, weakening of recognition and control, sometimes over-excited, and prone to anger, sometimes throwing anger at others, and often producing quarrels and injuries. Generally speaking, it is a kind of drunken state which lacks the ability of restraint. To a certain extent, it has the ability of identification and is assessed as the ability of limitation of liability. When possession conforms to the principle of subjective and objective consistency in criminal law theory, it means that the perpetrator knows that the act can not be done boldly, but does not take it into account and resolutely carries out acts that endanger society. Criminal responsibility includes two kinds of problems: whether the crime is committed or not; and the form of crime. One of the problems we need to solve is what kind of specific crime constitutes the harmful act of the drunken actor. In practice, it is mainly to strictly distinguish the boundaries between crime and non-crime, and to correctly identify the criminal form of the drunken actor. There are mainly theories of social interests, such as the theory of free act in cause, the theory of strict liability and the theory of conformity of constitutive requirements. In the drunken crime, the perpetrator in the drunken stage usually has the ability of criminal responsibility, which has the subjective factors of accountability, but according to the relevant provisions of the criminal law, the drunken behavior does not have the objective elements of accountability because it is not punishable. Acts that endanger society prohibited by the law have the objective conditions of imputability, but they lack the subjective conditions of imputability because they are in the state of irresponsibility. This leads to the separation of subjective offences and acts that are carried out, which leads to the impossibility of imputability of drunken crimes and the occurrence of drunken actors who are carried out after being drunk. There are three kinds of doctrines about this problem: the maintenance of the principle of responsibility, the revision of the principle of responsibility and the exception of the principle of responsibility. However, due to the particularity of the act of freedom of cause, it does not show that the usual "act of execution and responsibility coexist", just as it shows that "act and responsibility coexist". In ordinary drunkenness, according to the attitude of the drunken actor towards drunkenness, ordinary drunkenness can be divided into voluntary drunkenness and non-self-indulgence. We believe that only voluntary drunkenness belongs to the category of free act of principle, but not free drunkenness does not belong to the category of free act of reason. The general theory holds that pathological drunken persons should not be criminally liable for the harmful acts against society, because their acts do not conform to the subjective and objective elements of the crime. We believe that the general view is basically desirable, but there will be exceptions. But the ability of control has been weakened, so the ability of criminal responsibility should be limited. Whether the drunken person should bear criminal responsibility after carrying out the harmful act depends on whether his behavior conforms to the constitutive requirements of the crime. It embodies the spirit of different treatment, divides the criminal responsibility of drunken people according to the relevant psychiatry standards, and improves the aspects of determining the drunken state by adding strict procedural provisions and perfecting the laws for preventing drunken crime.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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