交通肇事罪自首问题研究

发布时间：2019-03-12 08:35

【摘要】：根据《刑法》第67条的规定,自首是指犯罪行为人犯罪以后主动投案,如实供述自己的罪行,或者被采取强制措施的犯罪嫌疑人、被告人和正在服刑的罪犯,如实供述司法机关还未掌握的本人其他罪行。自首不仅有利于感召犯罪行为人主动投案,激励犯罪行为人悔过自新,减少因犯罪而造成的社会不安定因素,而且有助于迅速侦破刑事案件,及时惩治犯罪,提高刑法在惩治和预防犯罪中的作用。随着我国机动车拥有量的逐年攀升,交通肇事犯罪已然跃居安全事故类犯罪之首,极大地影响着人们的生活。一般认为,犯罪行为人在交通肇事后立即报警,积极救助伤者并保护事故现场的行为,在符合自首条件的情况下可以成立自首。司法实践中,大部分交通肇事的行为人履行如上义务且如实供述自己罪行的,也都被认定为自首而给予了从宽处罚。而浙江省高级人民法院《关于审理交通肇事刑事案件若干意见》以构成重复评价为由将交通肇事罪排除在自首制度的适用范围之外,引起学界广泛争议。自首作为我国刑法总则规定的一项重要刑罚制度,在改造和预防犯罪方面发挥着不可替代的作用,更体现了宽严相济刑事政策的精神,如无例外情形,应当无条件地适用于分则每一个罪名,交通肇事罪也不例外。《道路交通安全法》第70条规定的报警、救助伤者并保护现场等义务,是行政法律部门为交通肇事的行为人设定的行政义务,而非刑法上的义务。行为人履行此项义务不直接等同于自首,但在符合自首条件时能够成立自首,这不违反刑法禁止重复评价原则；并且,犯罪行为人在交通肇事后未履行行政义务,但事后主动投案并如实供述自己的罪行,也有成立自首的空间,不过在量刑时要考虑行为人主观恶性以及社会危害性程度的大小,决定是否给予从宽处罚,这符合罪刑相适应原则。将自首制度适用于交通肇事罪既能保护被害人,又有利于犯罪行为人,还能有效促进刑罚目的的实现,意义十分深远。本文结合我国当前关于交通肇事罪的立法现状及司法实践,通过评述理论界和司法界的主流意见,从全新的角度提出自己的观点,力求丰富这一问题研究,更期待打破同案异判的尴尬局面。
[Abstract]:According to the provisions of article 67 of the Criminal Law, voluntary surrender refers to a suspect, a defendant and a criminal serving a sentence after the perpetrator has committed a crime and gives a true confession of his or her crime, or the criminal suspect, the accused person and the offender who is serving a sentence after he or she has taken coercive measures, A truthful confession of other crimes that the judiciary has not yet mastered. Surrender is not only conducive to soliciting the criminal actor to surrender on his own initiative, encouraging the criminal actor to repentance, reducing the social instability caused by the crime, but also helps to quickly detect the criminal case and punish the crime in a timely manner. Improve the role of criminal law in the punishment and prevention of crime. With the increase of the number of motor vehicles in our country, the crime of traffic accident has leapt to the top of the crime of safety accident, which greatly affects people's life. It is generally believed that the perpetrator should report to the police immediately after the traffic accident, actively help the injured and protect the scene of the accident, and can set up a voluntary surrender under the condition of meeting the conditions of voluntary surrender. In judicial practice, most of the perpetrators of traffic accidents perform the above obligation and confess their crimes truthfully, they are also recognized as surrender and given lenient punishment. On the other hand, Zhejiang Provincial higher people's Court excluded the crime of traffic accident from the scope of application of the voluntary surrender system on the grounds of repeated evaluation, which caused widespread controversy in the academic circles. As an important penalty system stipulated by the general provisions of the criminal law of our country, surrender plays an irreplaceable role in reforming and preventing crime, and embodies the spirit of the criminal policy of combining leniency and severity, such as without exception, It shall apply unconditionally to each and every crime, and the crime of causing a traffic accident is no exception. Under Article 70 of the Law on Road Traffic Safety, it is the duty to report to the police, to help the injured and to protect the scene, etc. It is the administrative obligation, not the criminal obligation, set by the administrative and legal department for the actor who caused the traffic accident. The performance of this obligation by the perpetrator is not directly equivalent to surrender, but can be established when the conditions for surrender are met, which is not in violation of the principle of prohibition of repeated evaluation in the criminal law; Moreover, the perpetrator did not fulfill his administrative obligation after the traffic accident, but after the incident, he surrendered voluntarily and confessed his crime truthfully, and there was also room to set up a voluntary surrender. However, it is necessary to consider the subjective malignancy of the perpetrator and the degree of social harm, and decide whether to give leniency punishment, which is in line with the principle of adapting crime and punishment. Applying the system of surrender to the crime of traffic accident can not only protect the victim, but also benefit the perpetrator of the crime, but also can effectively promote the realization of the purpose of penalty, the significance is very far-reaching. Combined with the current legislative situation and judicial practice of traffic accident crime in China, this paper reviews the mainstream opinions of the theoretical and judicial circles, and puts forward its own viewpoint from a brand-new angle in order to enrich the research on this issue. We are looking forward to breaking the awkward situation of the same case.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3;D924.1

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