“毒驾”问题的刑法学研究

发布时间：2018-11-25 07:56

【摘要】：当代中国毒品泛滥,尤其是新型合成毒品日益平民化,带来范围极广的不良影响。我国已全面进入汽车时代,当机动车驾驶和毒品二者相结合时,产生的潜在危险不言而喻。在一些恶性交通事故的背后,醉驾和追逐竞驶行为开始受到应有的关注,被纳入了刑法视线。相比之下,毒驾仍游离于刑法之外,可见立法者对于有着高度相似性的毒驾行为,尚缺乏关注。只要不出事就万事大吉,出了事则后果不堪设想。这种立法现状使预防和打击“毒驾”行为处于被动状态,导致性质恶劣的毒驾处于滋长期,如果仍不加以重视,其影响力将是巨大的。《刑法修正案(八)》中新增的危险驾驶条款只涵盖了醉酒驾驶和情节恶劣的追逐竞驶两种情况,显然不足以解决国内日趋恶化的毒驾事态。对毒驾的处罚不能有效惩戒毒驾人员,行为人的法制意识便薄弱,无形中违法成本过低,便不会下意识控制自身行为,从而造成毒驾现象的普遍存在。行政法规及部门规章也仅从禁入角度,限制向吸毒人员发放驾照或注销其驾照,难以从根本上控制毒驾行为。相比之下,尽管危险驾驶罪在现行刑法上是轻罪,但依然能够对酒驾及追逐竞驶行为产生足够的威慑作用,因此禁绝“毒驾”应考虑、借鉴以抽象危险犯设计的危险驾驶罪。如毒驾行为能入罪,行为人面临被刑事处罚的风险,必然会对驾驶人员产生有效的指引作用,形成规范驾驶的预期效果,从而达到保护公共交通安全的目的。虽然毒品检测存在一定的难度,但发达国家和地区的立法和检测技术相对成熟,可以为我国“毒驾”入刑起到重要的借鉴作用。我国的法制、政策环境正经历着一系列的结构转变,刑法的发展特征逐渐由“厉而不严”向“严而不厉”过渡,罪名与刑罚的设计开始具有严密化和轻刑化的发展趋势。笔者建议将毒驾列入危险驾驶罪,在刑法中设计为抽象危险犯,不要求其产生具体的损害后果,以此种方式来更好地保护社会交通秩序和公众的人身财产安全,即只要行为人吸毒驾驶机动车上路的,即构罪,而“毒驾入刑”的途径及设置,尚需进一步的调研和细化。
[Abstract]:The proliferation of drugs in contemporary China, especially the increasing popularity of new synthetic drugs, has brought a wide range of adverse effects. China has entered the automobile age, when the combination of motor vehicle driving and drugs, the potential danger is self-evident. Behind some malignant traffic accidents, drunken driving and chasing race driving behavior began to receive due attention and were brought into the line of sight of criminal law. In contrast, drug driving is still outside the criminal law. As long as nothing happens, everything will be all right, and the consequences will be unthinkable. This kind of legislation makes the behavior of preventing and combating "drug driving" in a passive state, leading to the bad nature of drug driving in the long run, if it is still ignored, its influence will be enormous. The new dangerous driving clause in the Amendment (8) of the Criminal Law only covers the drunken driving and the vicious pursuit of race driving, which is obviously not enough to solve the deteriorating situation of drug driving in China. The punishment of drug driving can not effectively punish the drug driving personnel, the legal consciousness of the perpetrators will be weak, and the illegal costs will be too low, they will not subconsciously control their own behavior, resulting in the widespread existence of drug driving phenomenon. Administrative regulations and departmental regulations restrict drug addicts from issuing or cancelling their driving licenses only from the point of view of prohibition, so it is difficult to fundamentally control drug driving behavior. In contrast, although the crime of dangerous driving is a misdemeanor in the current criminal law, it can still have a sufficient deterrent effect on the behavior of drinking driving and chasing race driving. Therefore, the prohibition of "drug driving" should be considered and the dangerous driving crime designed by abstracting dangerous criminals should be taken into account. If the drug driving behavior can be criminalized, the perpetrator will face the risk of being punished by the criminal law, which will inevitably have an effective guiding effect on the driver, and form the expected effect of standardizing driving, so as to achieve the purpose of protecting the safety of public transportation. Although there are some difficulties in drug detection, the legislation and detection technology of developed countries and regions are relatively mature, which can play an important reference role in our country. The legal system and policy environment of our country are undergoing a series of structural changes, the development characteristic of criminal law is gradually from "severe but not strict" to "strict but not severe", the design of charge and penalty begins to have the development trend of strict and light punishment. The author suggests that the drug driving should be included in the crime of dangerous driving and designed as an abstract dangerous crime in criminal law, without requiring it to produce concrete damage consequences, so as to better protect the social traffic order and the personal and property safety of the public in this way. That is to say, as long as the doer takes drugs and drives the motor vehicle on the road, the crime will be constructed, and the way and establishment of "drug driving into criminal law" need further investigation and refinement.
【学位授予单位】：黑龙江大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

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