“毒驾”入刑问题研究
发布时间：2019-04-18 20:33
【摘要】：自刑法修正案八颁布以来,关于“毒驾”入刑的研究就一直就比较活跃。2015年11月1日起施行的刑法修正案九虽然扩展了危险驾驶罪的内容,但是人民群众以及学者反响比较强烈的“毒驾”入刑仍然没有实现。这又一次在学界引起了一阵讨论的热潮,一时间关于“毒驾”是否入刑的争论在学界此起彼伏。本文的第一章旨在界定“毒驾”的清晰含义。通过将“毒驾”行为拆解为三个部分:吸毒行为、驾驶行为以及吸毒行为对驾驶行为的影响。并且分别对这三个部分进行理论上的探讨和定义,本文最终给出的“毒驾”行为的定义是:所谓“毒驾”是指行为人在摄入国家规定的管制的麻醉药品和精神药品之后,在药品的药理作用下,基于运行机动车的意图自主发动机动车的引擎或者实际运行机动车的行为。本文的第二章首先介绍了目前学界关于“毒驾”是否应该入刑的两种学说,即“否定说”和“肯定说”。“否定说”反对“毒驾”行为入刑,其主要理由有:“毒驾”入刑违反了刑法的谦抑性原则、“毒驾”入刑违反了刑法的罪刑法定原则、“毒驾”入刑后难以保证司法的公平认定与执行。而“肯定说”针对“否定说”的观点提出了相反的意见。本文最后赞同“肯定说”的观点,认为“毒驾”行为应该入刑。随后,在支持“肯定说”的基础上,本文再次强调了“毒驾”入刑在我国的必要性和可行性。本文的第三章在前文论述的基础之上,并借鉴域外国家的立法经验,给出了自己对“毒驾”入刑的立法构想。主要从我国“毒驾”入刑的入刑标准和罪名设计两个方面阐述了自己的观点。在罪名设计方面,又分析了“毒驾”犯罪的犯罪构成问题。本文的第四章又具体论述了“毒驾”入刑以后的司法认定问题。主要包括“罪与非罪”问题,以及本罪与彼罪之间的界限问题。最后为本文得出的结论。经过研究,本文认为:在“毒驾”形势愈发猖獗的今天,“毒驾”行为入刑已是刻不容缓。在借鉴域外国家关于“毒驾”犯罪的立法经验之后,本文建议将“毒驾”行为纳入危险驾驶罪,作为危险驾驶罪的罪状之一,犯本罪的,处拘役,并处罚金。有前款行为,同时构成其他犯罪的,依照处罚较重的规定定罪处罚。同时,本文认为治理“毒驾”等毒品类犯罪,既不能不要刑法,也不能仅仅依靠刑法打击。“徒法不能自行”,唯有发动群众,走群众路线,才能彻底消灭毒品犯罪这一社会毒瘤。
[Abstract]:Since the promulgation of Amendment VIII to the Criminal Code, the study of "drug driving" has been active. Amendment IX to the Criminal Law, which came into effect on 1 November 2015, although it extends the crime of dangerous driving, However, the strong response of the people and scholars to "drug driving" has still not been achieved. This once again caused a discussion upsurge in the academic world, and the debate about whether drug driving should be sentenced to punishment began to rise and fall one after another in the academic circle. The first chapter of this paper aims to define the clear meaning of "poison driving". Drug driving is divided into three parts: drug-taking behavior, driving behavior and the influence of drug-taking behavior on driving behavior. And respectively to these three parts carries on the theoretical discussion and the definition, this article finally gives "the poison driving" the behavior definition is: the so-called "poison driving" refers to the perpetrator after ingesting the narcotic drugs and the psychotropic drugs which the state prescribes, Under the pharmacological action of drugs, the behavior of starting the engine of the motor vehicle or the actual operation of the motor vehicle based on the intention of running the motor vehicle. In the second chapter, the author first introduces two theories about whether "poison driving" should be punished, that is, "negative theory" and "positive theory". The main reasons for "negative driving" against the entry of "poison driving" are as follows: "poison driving" violates the principle of modesty of criminal law, and "poison driving" violates the principle of legality of crime and punishment of criminal law, and "poison driving" violates the principle of crime and punishment of criminal law. Drug driving is difficult to ensure the fair identification and execution of justice. On the contrary, "positive theory" puts forward a contrary view on "negative theory". At the end of this paper, the author agrees with the view that "drug driving" should be punished. Then, on the basis of supporting "positive theory", this paper emphasizes the necessity and feasibility of "poison driving" in our country again. The third chapter of this paper, on the basis of the previous discussion, and drawing lessons from the legislative experience of foreign countries, puts forward the legislative conception of "drug driving". In this paper, the author expounds his viewpoint from two aspects: the entry standard and the charge design of "drug driving" in our country. In the crime design aspect, also analyzed "poison driving" crime constitution question. The fourth chapter of this paper specifically discusses the issue of judicial determination after the death of "poison driving". It mainly includes the question of crime and non-crime, as well as the boundary between this crime and other sin. Finally, this paper draws a conclusion. Through the research, this paper holds that: in the situation of "drug driving" is more rampant today, "drug driving" behavior has become an urgent task. After drawing lessons from the legislative experience of foreign countries on the crime of drug driving, this paper suggests that the act of drug driving be included in the crime of dangerous driving as one of the counts of the crime of dangerous driving, if the criminal is guilty of the crime, he shall be sentenced to criminal detention and concurrently be sentenced to a fine. If any act in the preceding paragraph constitutes any other crime, the offender shall be convicted and punished in accordance with the provisions of the heavier punishment. At the same time, this paper argues that to deal with drug-related crimes, such as drug driving, can not only be dealt with without criminal law, nor can it be dealt with only by criminal law. Only by mobilizing the masses and following the mass line can we thoroughly eliminate the social cancer of drug-related crimes.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2018
【分类号】：D924.3
本文编号：2460310
[Abstract]:Since the promulgation of Amendment VIII to the Criminal Code, the study of "drug driving" has been active. Amendment IX to the Criminal Law, which came into effect on 1 November 2015, although it extends the crime of dangerous driving, However, the strong response of the people and scholars to "drug driving" has still not been achieved. This once again caused a discussion upsurge in the academic world, and the debate about whether drug driving should be sentenced to punishment began to rise and fall one after another in the academic circle. The first chapter of this paper aims to define the clear meaning of "poison driving". Drug driving is divided into three parts: drug-taking behavior, driving behavior and the influence of drug-taking behavior on driving behavior. And respectively to these three parts carries on the theoretical discussion and the definition, this article finally gives "the poison driving" the behavior definition is: the so-called "poison driving" refers to the perpetrator after ingesting the narcotic drugs and the psychotropic drugs which the state prescribes, Under the pharmacological action of drugs, the behavior of starting the engine of the motor vehicle or the actual operation of the motor vehicle based on the intention of running the motor vehicle. In the second chapter, the author first introduces two theories about whether "poison driving" should be punished, that is, "negative theory" and "positive theory". The main reasons for "negative driving" against the entry of "poison driving" are as follows: "poison driving" violates the principle of modesty of criminal law, and "poison driving" violates the principle of legality of crime and punishment of criminal law, and "poison driving" violates the principle of crime and punishment of criminal law. Drug driving is difficult to ensure the fair identification and execution of justice. On the contrary, "positive theory" puts forward a contrary view on "negative theory". At the end of this paper, the author agrees with the view that "drug driving" should be punished. Then, on the basis of supporting "positive theory", this paper emphasizes the necessity and feasibility of "poison driving" in our country again. The third chapter of this paper, on the basis of the previous discussion, and drawing lessons from the legislative experience of foreign countries, puts forward the legislative conception of "drug driving". In this paper, the author expounds his viewpoint from two aspects: the entry standard and the charge design of "drug driving" in our country. In the crime design aspect, also analyzed "poison driving" crime constitution question. The fourth chapter of this paper specifically discusses the issue of judicial determination after the death of "poison driving". It mainly includes the question of crime and non-crime, as well as the boundary between this crime and other sin. Finally, this paper draws a conclusion. Through the research, this paper holds that: in the situation of "drug driving" is more rampant today, "drug driving" behavior has become an urgent task. After drawing lessons from the legislative experience of foreign countries on the crime of drug driving, this paper suggests that the act of drug driving be included in the crime of dangerous driving as one of the counts of the crime of dangerous driving, if the criminal is guilty of the crime, he shall be sentenced to criminal detention and concurrently be sentenced to a fine. If any act in the preceding paragraph constitutes any other crime, the offender shall be convicted and punished in accordance with the provisions of the heavier punishment. At the same time, this paper argues that to deal with drug-related crimes, such as drug driving, can not only be dealt with without criminal law, nor can it be dealt with only by criminal law. Only by mobilizing the masses and following the mass line can we thoroughly eliminate the social cancer of drug-related crimes.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2018
【分类号】：D924.3
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