危险驾驶罪疑难问题研究
发布时间：2018-11-21 19:33
【摘要】：《刑法修正案(八)》的出台将醉酒驾驶行为与追逐竞驶行为纳入刑法的打击范围,危险驾驶罪由此诞生。然而什么行为才是醉酒驾驶行为,醉酒的标准怎样认定,如何理解追逐竞驶行为,其与飙车有何区别,追逐竞驶行为的道路怎样认定等等,这些实践当中涌现的疑难问题一直困扰着实务界。而理论界目前对于危险驾驶罪的研究也存在诸多争议,如该罪的行为犯与危险犯之争长期存在,行为的既遂与着手标准也未形成共识。此外从立法上看,我国刑法对危险驾驶罪的规定也很不完善,一定程度上影响了该罪的司法适用。有鉴于此,本文对危险驾驶罪的疑难问题进行深入探讨,以期解决危险驾驶罪认定难的问题,并试图从立法上对危险驾驶罪进行完善。全文共分为四个部分： 第一部分主要研究司法实践当中如何认定危险驾驶罪的两种行为方式,即醉酒驾驶和追逐竞驶。结合目前司法解释和行政法规、行政规章的规定,研究醉酒驾驶的具体认定标准和操作规范等,提出醉酒驾驶的含义,指出“醉驾”应采取主观与客观相结合的认定标准。同时对追逐竞驶行为进行界定,规范其适用范围和定罪标准,提出追逐竞驶包括飙车和竞赛行驶的观点。 第二部分对危险驾驶罪的犯罪形态问题进行深入探讨。首先在评析学界关于危险驾驶罪到底为行为犯还是危险犯的不同观点基础上,指出行为犯说的错误之处,由此得出危险驾驶罪为抽象危险犯的结论并对主要理由进行阐述；然后对危险驾驶罪的既遂和着手标准进行研究,提出该罪具体的停止形态认定标准；最后对危险驾驶罪的共同犯罪形态问题进行研究,并对该罪共犯的特殊情形提出具体处理方法。 第三部分主要研究危险驾驶罪与其相似罪名的界限。先从主、客观方面研究其与交通肇事罪的界限,提出不应将危险驾驶罪作为一种特殊的交通肇事罪来对待；再从客观方面与犯罪形态角度对危险驾驶罪和以危险方法危害公共安全罪的界限进行研究,提出二者的最大区别在于行为方式不同以及对实害结果的处理不同,以便更好地在实务中做好此罪与彼罪的区分。 第四部分对危险驾驶罪整体进行了立法检视,指出其存在罪状含糊不清、行为方式列举不全、刑罚结构单一等问题,然后借鉴域外立法相关规定,提出完善我国危险驾驶罪的意见和建议,如增加行为方式,合理完善刑罚种类,增设危险驾驶致人死伤罪等。
[Abstract]:The introduction of the Criminal Law Amendment (8) brings drunk driving behavior and chasing driving behavior into the scope of the criminal law, and the crime of dangerous driving comes into being. However, what behavior is drunk driving behavior, how to determine the standard of drunken driving, how to understand the behavior of chasing race driving, what is the difference between it and racing cars, how to identify the road of chasing race driving behavior and so on, etc. The problems that appear in these practices have been puzzling the practice circle all the time. However, there are many controversies in the research of the crime of dangerous driving, such as the dispute between the crime and the crime of dangerous driving, and the standard of accomplishment and initiation of the crime has not reached a common understanding. In addition, from the legislative point of view, China's criminal law on the crime of dangerous driving is not perfect, to some extent affected the judicial application of the crime. In view of this, this paper makes a thorough discussion on the difficult problem of dangerous driving crime, in order to solve the problem that it is difficult to determine the dangerous driving crime, and try to perfect the dangerous driving crime from the legislation. The full text is divided into four parts: the first part mainly studies how to identify the dangerous driving crime in judicial practice, that is, drunk driving and chasing race driving. Combined with the current judicial interpretation and administrative regulations, this paper studies the specific identification standards and operational norms of drunken driving, puts forward the meaning of drunken driving, and points out that "drunken driving" should adopt the combination of subjective and objective standards. At the same time, it defines the behavior of chasing race driving, standardizes its applicable scope and standard of conviction, and puts forward the viewpoint that chase race driving includes racing cars and race driving. The second part discusses the crime form of dangerous driving crime. Firstly, on the basis of analyzing the different viewpoints of the academic circles on whether the crime of dangerous driving is an act crime or a dangerous crime, the author points out that the behavior crime is wrong, and then draws the conclusion that the dangerous driving crime is an abstract dangerous crime and expounds the main reasons. Then, the author studies the completion and initiation standards of the crime of dangerous driving, and puts forward the standard of the specific cessation of the crime. Finally, the paper studies the form of joint crime of dangerous driving crime, and puts forward specific treatment methods for the special circumstances of the accomplice of the crime. The third part mainly studies the boundary of dangerous driving crime and its similar charges. First, from the subjective and objective aspects of the study of the boundary between the crime and traffic accident, put forward that the crime of dangerous driving should not be treated as a special crime of traffic accident; From the angle of objective aspect and crime form, the paper studies the boundary of dangerous driving crime and endangering public safety crime by dangerous method, and points out that the biggest difference between them lies in the difference of behavior mode and the treatment of actual harm result. In order to do a better job in the practice of this crime and the distinction between that crime. The fourth part has carried on the legislative examination to the dangerous driving crime as a whole, pointed out that its existence crime is ambiguous, the behavior way enumerates incomplete, the penalty structure is single, and then draws lessons from the extraterritorial legislation related provisions. Some suggestions are put forward to improve the crime of dangerous driving in our country, such as increasing the behavior mode, reasonably perfecting the types of penalty, adding the crime of death and injury caused by dangerous driving and so on.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2348067
[Abstract]:The introduction of the Criminal Law Amendment (8) brings drunk driving behavior and chasing driving behavior into the scope of the criminal law, and the crime of dangerous driving comes into being. However, what behavior is drunk driving behavior, how to determine the standard of drunken driving, how to understand the behavior of chasing race driving, what is the difference between it and racing cars, how to identify the road of chasing race driving behavior and so on, etc. The problems that appear in these practices have been puzzling the practice circle all the time. However, there are many controversies in the research of the crime of dangerous driving, such as the dispute between the crime and the crime of dangerous driving, and the standard of accomplishment and initiation of the crime has not reached a common understanding. In addition, from the legislative point of view, China's criminal law on the crime of dangerous driving is not perfect, to some extent affected the judicial application of the crime. In view of this, this paper makes a thorough discussion on the difficult problem of dangerous driving crime, in order to solve the problem that it is difficult to determine the dangerous driving crime, and try to perfect the dangerous driving crime from the legislation. The full text is divided into four parts: the first part mainly studies how to identify the dangerous driving crime in judicial practice, that is, drunk driving and chasing race driving. Combined with the current judicial interpretation and administrative regulations, this paper studies the specific identification standards and operational norms of drunken driving, puts forward the meaning of drunken driving, and points out that "drunken driving" should adopt the combination of subjective and objective standards. At the same time, it defines the behavior of chasing race driving, standardizes its applicable scope and standard of conviction, and puts forward the viewpoint that chase race driving includes racing cars and race driving. The second part discusses the crime form of dangerous driving crime. Firstly, on the basis of analyzing the different viewpoints of the academic circles on whether the crime of dangerous driving is an act crime or a dangerous crime, the author points out that the behavior crime is wrong, and then draws the conclusion that the dangerous driving crime is an abstract dangerous crime and expounds the main reasons. Then, the author studies the completion and initiation standards of the crime of dangerous driving, and puts forward the standard of the specific cessation of the crime. Finally, the paper studies the form of joint crime of dangerous driving crime, and puts forward specific treatment methods for the special circumstances of the accomplice of the crime. The third part mainly studies the boundary of dangerous driving crime and its similar charges. First, from the subjective and objective aspects of the study of the boundary between the crime and traffic accident, put forward that the crime of dangerous driving should not be treated as a special crime of traffic accident; From the angle of objective aspect and crime form, the paper studies the boundary of dangerous driving crime and endangering public safety crime by dangerous method, and points out that the biggest difference between them lies in the difference of behavior mode and the treatment of actual harm result. In order to do a better job in the practice of this crime and the distinction between that crime. The fourth part has carried on the legislative examination to the dangerous driving crime as a whole, pointed out that its existence crime is ambiguous, the behavior way enumerates incomplete, the penalty structure is single, and then draws lessons from the extraterritorial legislation related provisions. Some suggestions are put forward to improve the crime of dangerous driving in our country, such as increasing the behavior mode, reasonably perfecting the types of penalty, adding the crime of death and injury caused by dangerous driving and so on.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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