危险驾驶罪的认定及立法完善

发布时间：2018-11-21 06:41

【摘要】：危险驾驶罪是指在道路上驾驶机动车,具有以下情节的:(一)追逐竞驶,情节恶劣的;(二)醉酒驾驶机动车的;(三)在公共道路上从事客运或者从事校车业务,未按照核载标准载客严重超载的或者严重超速行驶的;(四)未遵守我国立法关于危险化学品运输的管理规定,违法运输危险化学品,导致公共安全利益遭受严重威胁的行为。近年来,随着我国经济社会的快速发展,人们生活消费水平的显著提高,汽车作为交通工具已经逐渐在百姓当中普及开来,然而,汽车在为人们的日常生活提供便利的同时,交通肇事率的居高不下,交通事故的频发也导致了重大的人员伤亡和财产损失,给公众的生命健康和财产安全带来严重的威胁,如果仅以行政手段规制一些没有造成危害结果的醉酒驾车、追逐竞驶等危险驾驶行为,难以减少类似行为的发生。为了更好地保护人民群众的人身、财产权益,加大对危害公共安全的危险驾驶行为的处罚力度,充分发挥法律的教育和警示作用,2011年2月25日,于我国第十一届全国人大常委会第十九次会议审议通过了《刑法修正案(八)》,针对实践当中我国频繁出现的因危险驾驶行为导致的交通事故,《刑法修正案(八)》增设了危险驾驶罪这一罪名,将追逐竞驶且情节恶劣的以及醉酒驾驶纳入刑法的调整范围之内。在此基础上,2015年11月,《刑法修正案(九)》又将"违反我国关于运输危险化学品的相关规定违法运输危险化学品"以及"从事客运、校车业务的具有严重超载或者严重超速行为"纳入了危险驾驶罪的调整范畴之内。可以说,在我国《刑法》当中增设危险驾驶罪不但填补了刑法体系的漏洞,而且使我国的立法理念由结果本位为主进入到了行为本位,有效解决了刑罚滞后性的问题,是我国刑法史上具有重大意义的大事件。但是,由于危险驾驶罪是一个比较新的罪名,该罪的设立、发展一方面反映了我国现阶段社会层面对危险驾驶行为入罪的需求,另一方面,危险驾驶罪的认定和处罚仍处于探索阶段,我们的立法、司法层面也存在一些问题,这些问题值得探讨和研究。本罪设置仍然存在许多不足之处亟待完善,诸如与交通肇事罪二者存在竞合也是实践中的困境,容易造成同一行为定罪不同的尴尬。鉴于此,本文旨在通过分析危险驾驶罪的认定、危险驾驶罪与其他罪名的区分及立法弊端等问题,探讨如何修改危险驾驶罪的表述,以充分发挥设置该罪的积极作用。本文较为详细的阐述了该罪的立法概况,从犯罪构成要件的角度探讨了该罪的构成要件,阐述了危险驾驶罪的认定及立法完善。最后针对这些问题提出了调整定罪范围,确定定罪标准,提高法定刑等建议,以期为完善我国相关立法起到一定的推动力。
[Abstract]:The crime of dangerous driving refers to the driving of a motor vehicle on the road, which has the following circumstances: (1) chasing a race driving, if the circumstances are abominable; (2) driving a motor vehicle drunk; (3) those who engage in passenger transport on public roads or engage in school bus business and fail to carry passengers seriously in accordance with the standards for carrying passengers in accordance with the verification standards or if they overspeed seriously; (4) failure to comply with the regulations governing the transport of dangerous chemicals in our legislation, and illegal transportation of dangerous chemicals, which results in serious threats to public safety interests. In recent years, with the rapid development of our country's economy and society and the remarkable improvement of people's living and consumption level, automobile as a means of transportation has been gradually popularized among the people. However, the automobile provides convenience for people's daily life at the same time. The high rate of traffic accidents and the frequent occurrence of traffic accidents have also led to heavy casualties and property losses, which have brought serious threats to the life and health of the public and the safety of property. It is difficult to reduce the occurrence of similar behaviors if only administrative measures are used to regulate some dangerous driving behaviors such as drunken driving and chasing race driving which do not result in harm. In order to better protect the people's personal and property rights and interests, increase penalties for dangerous driving acts that endanger public safety, and give full play to the role of law in education and warning, on February 25, 2011, At the nineteenth session of the standing Committee of the Eleventh National people's Congress, the Amendment to the Criminal Law (8) was adopted. In view of the frequent traffic accidents caused by dangerous driving in China in practice, The Criminal Law Amendment (8) adds the crime of dangerous driving to the scope of adjustment of the criminal law. On this basis, in November 2015, the Criminal Law Amendment (IX) will also "illegally transport dangerous chemicals in violation of the relevant provisions concerning the transport of dangerous chemicals in China" and "engage in passenger transport," School bus business with serious overloading or serious speeding "is included in the adjustment of dangerous driving crime." It can be said that the addition of the crime of dangerous driving in our country's Criminal Law not only fills the loopholes in the criminal law system, but also makes the legislative concept of our country move from the result-based to the behavioural standard, effectively solving the problem of lag in punishment. It is a great event of great significance in the history of criminal law of our country. However, because the crime of dangerous driving is a relatively new crime, the establishment of the crime reflects the demand for the criminalization of dangerous driving behavior at the present stage of our country, on the other hand, The determination and punishment of the crime of dangerous driving is still in the exploratory stage, and there are some problems in our legislation and judicature, which are worthy of discussion and study. The establishment of this crime still has many deficiencies to be improved, such as competing with the traffic accident crime, which is also a dilemma in practice, which can easily lead to the embarrassment of different conviction of the same behavior. In view of this, this article aims to analyze the identification of dangerous driving crime, the distinction between dangerous driving crime and other charges, and legislative malpractice, and discuss how to modify the expression of dangerous driving crime, so as to give full play to the positive role of setting up the crime. This article elaborates the legislation of the crime in detail, discusses the constitutive elements of the crime from the point of view of the constitutive elements of the crime, and expounds the identification and legislative perfection of the crime of dangerous driving. Finally, the author puts forward some suggestions on adjusting the scope of conviction, determining the standard of conviction and raising the legal penalty, in order to promote the improvement of the relevant legislation in our country.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.3

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