论“飙车型”危险驾驶罪
发布时间：2018-11-08 16:11
【摘要】：“飙车型”危险驾驶行为作为《刑法修正案(八)》新增的危险驾驶罪的法定罪状之一,被正式写入刑法之中。从“飙车型”危险驾驶行为入罪的立法沿革看来,最高人民法院将“飙车型”危险驾驶行为抽象为危险驾驶罪,这种违反交通安全管理法规的行为确立为犯罪,使其从行政处罚的领域进入到刑法的控制领域。从刑事立法学的角度来讲,危险驾驶罪的构成要件的设立,是中国刑法上的一个重大突破和改革,对于今后的刑法立法乃至司法领域均将产生重大的影响。 “飙车型”危险驾驶的行为因其严重的社会危害性和主观恶性,被吸纳到刑法的调整范围之中,存在其入罪的必要性和可行性,同时也符合我国宽严相济的刑事政策的要求和迎合了民众的法律观念,但在具体的司法实践中仍然存在诸多的问题与困惑。“飙车型”危险驾驶罪缺乏具体的认定标准、机动车认定范围和证据的收集与采信,模糊了我国行政处罚与刑事处罚的二元机制,使得行政处罚在“飙车型”危险驾驶行为上被架空,两者难以衔接。“飙车型”危险驾驶行为入罪过分宽泛化,法定刑处罚不到位,使得现有的司法资源难以承担追诉“飙车型”危险驾驶行为犯罪的使命,容易造成选择性执法等问题。 要摆脱上述困境,现实对策就是明确“飙车型”危险驾驶的概念及具体行为的认定标准。严格将“飙车型”危险驾驶罪的危险行为规定为在道路上驾驶机动车追逐竞驶,情节恶劣的行为,同时要求行为实施时具备超速驾驶机动车追赶他人并与之竞争的行为。对于“情节恶劣”的范围限定在道路情况,机动车的情况和参加“飙车”的人数、次数的多少,实际危害结果等情节,还应该适当考虑行为人的个人状况作出判断。 笔者认为,《刑法修正案(八)》中对于“飙车型”危险驾驶罪的增设没有作出具体的认定标准,针对驾驶机动车的范围,追逐竞驶的具体对象,情节恶劣的情况以及法定刑的处罚都没有作出明确的司法解释和认定,给刑法理论研究和司法实务分析带来困扰。因而在今后的刑法理论研究中应该不断的完善“飙车型”危险驾驶罪的不足之处,使之更有利于我国刑事政策的发展要求。
[Abstract]:The "drag racing" dangerous driving behavior, as one of the new crimes of dangerous driving in the Criminal Law Amendment (8), has been written into the Criminal Law. From the legislative evolution of the criminalization of "drag racing" dangerous driving, the Supreme people's Court abstracts the "drag racing" dangerous driving as a dangerous driving crime, which violates the traffic safety regulations and regulations as a crime. Make it from the field of administrative punishment into the field of criminal law control. From the angle of criminal legislation, the establishment of the constitutive elements of the crime of dangerous driving is a major breakthrough and reform in Chinese criminal law, which will have a great impact on the future criminal law legislation and even the judicial field. Because of its serious social harmfulness and subjective malignancy, the behavior of "drag racing" dangerous driving is absorbed into the adjustment scope of the criminal law, and the necessity and feasibility of its incrimination exist. At the same time, it meets the requirements of our country's criminal policy of leniency and strict punishment and caters to the legal concept of the public, but there are still many problems and puzzles in the concrete judicial practice. The "drag racing type" dangerous driving crime lacks the concrete identification standard, the vehicle identification scope and the evidence collection and the adoption, has blurred our country administrative punishment and the criminal punishment binary mechanism, Make the administrative punishment in the "drag racing" dangerous driving behavior is elevated, the two are difficult to link up. "drag racing" dangerous driving behavior into the crime of broad division, legal punishment is not in place, making the existing judicial resources difficult to prosecute "drag racing type" dangerous driving behavior crime mission, easy to cause selective law enforcement and other problems. To get rid of the above predicament, the realistic countermeasure is to make clear the concept of "drag racing" dangerous driving and the identification standard of concrete behavior. The dangerous behavior of "drag racing" dangerous driving crime is strictly defined as driving a motor vehicle on the road to chase after a race, the behavior of bad circumstances, at the same time requiring the behavior of speeding motor vehicle to catch up with others and compete with it. The scope of "bad circumstances" is limited to the road condition, the condition of motor vehicle, the number of people participating in "drag racing", the number of times, the actual result of harm, and so on, and the individual condition of the perpetrator should be considered appropriately to make a judgment. The author believes that in the Criminal Law Amendment (8), there is no specific standard for the establishment of the "drag racing" crime of dangerous driving, and the specific object of the pursuit of race driving is aimed at the range of driving motor vehicles. The circumstance of abominable circumstance and the punishment of legal punishment have not made clear judicial explanation and cognizance, bring trouble to the theory research of criminal law and judicial practice analysis. Therefore, in the future study of the theory of criminal law, we should constantly perfect the deficiency of "drag racing" crime of dangerous driving, and make it more favorable to the development of our country's criminal policy.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.32
本文编号：2319001
[Abstract]:The "drag racing" dangerous driving behavior, as one of the new crimes of dangerous driving in the Criminal Law Amendment (8), has been written into the Criminal Law. From the legislative evolution of the criminalization of "drag racing" dangerous driving, the Supreme people's Court abstracts the "drag racing" dangerous driving as a dangerous driving crime, which violates the traffic safety regulations and regulations as a crime. Make it from the field of administrative punishment into the field of criminal law control. From the angle of criminal legislation, the establishment of the constitutive elements of the crime of dangerous driving is a major breakthrough and reform in Chinese criminal law, which will have a great impact on the future criminal law legislation and even the judicial field. Because of its serious social harmfulness and subjective malignancy, the behavior of "drag racing" dangerous driving is absorbed into the adjustment scope of the criminal law, and the necessity and feasibility of its incrimination exist. At the same time, it meets the requirements of our country's criminal policy of leniency and strict punishment and caters to the legal concept of the public, but there are still many problems and puzzles in the concrete judicial practice. The "drag racing type" dangerous driving crime lacks the concrete identification standard, the vehicle identification scope and the evidence collection and the adoption, has blurred our country administrative punishment and the criminal punishment binary mechanism, Make the administrative punishment in the "drag racing" dangerous driving behavior is elevated, the two are difficult to link up. "drag racing" dangerous driving behavior into the crime of broad division, legal punishment is not in place, making the existing judicial resources difficult to prosecute "drag racing type" dangerous driving behavior crime mission, easy to cause selective law enforcement and other problems. To get rid of the above predicament, the realistic countermeasure is to make clear the concept of "drag racing" dangerous driving and the identification standard of concrete behavior. The dangerous behavior of "drag racing" dangerous driving crime is strictly defined as driving a motor vehicle on the road to chase after a race, the behavior of bad circumstances, at the same time requiring the behavior of speeding motor vehicle to catch up with others and compete with it. The scope of "bad circumstances" is limited to the road condition, the condition of motor vehicle, the number of people participating in "drag racing", the number of times, the actual result of harm, and so on, and the individual condition of the perpetrator should be considered appropriately to make a judgment. The author believes that in the Criminal Law Amendment (8), there is no specific standard for the establishment of the "drag racing" crime of dangerous driving, and the specific object of the pursuit of race driving is aimed at the range of driving motor vehicles. The circumstance of abominable circumstance and the punishment of legal punishment have not made clear judicial explanation and cognizance, bring trouble to the theory research of criminal law and judicial practice analysis. Therefore, in the future study of the theory of criminal law, we should constantly perfect the deficiency of "drag racing" crime of dangerous driving, and make it more favorable to the development of our country's criminal policy.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.32
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