On some difficult problems in the crime of causing traffic accidents.

The crime of causing traffic accidents refers to the behavior that the perpetrator violates traffic management laws and regulations, causing serious traffic accidents, causing serious injuries, deaths or heavy losses to public and private property. The crime of causing traffic accidents is a kind of multiple and multiple crimes. In recent years, with the continuous development of China's transportation industry, the incidence of traffic accidents is on the rise, which has seriously endangered people's lives and property safety. 1The Criminal Law of People's Republic of China (PRC), revised and adopted at the Fifth Session of the Eighth National People's Congress in March, 1997, revised the provisions on the crime of causing traffic accidents in the Criminal Law of 1979, and the revised criminal law made the provisions on the crime of causing traffic accidents more clear, specific and operable. This is of great significance to effectively crack down on traffic accidents and protect people's lives and property. Here, the author intends to make a brief discussion on the composition of traffic accident crime and several problems existing in dealing with traffic accident crime in judicial practice.

First, about the subject of traffic accident crime.

The subject of traffic accident crime is the general subject. The revised criminal law has no special provisions on the subject of traffic accident crime. Any citizen with criminal responsibility who has reached the age of 16 can become the subject of traffic accident crime. As long as it violates traffic regulations and causes serious injuries, deaths or heavy losses of public and private property, it constitutes a traffic accident crime. Theoretical circles believe that the subject of traffic accident crime is generally the business personnel directly related to transportation. It mainly includes the following three categories: (1) vehicle drivers, such as car drivers and ship helmsman; (2) Transportation security personnel, transportation equipment operators, commanders, etc. ; (3) The direct commander of transportation production, such as the leader and commander of the motorcade. So can people who are not directly engaged in transportation constitute the crime of causing traffic accidents? Article 1 of the Notice on Strictly Handling Traffic Accident Cases in accordance with the Law (hereinafter referred to as the Notice) jointly issued by the Supreme People's Court, the Supreme People's Procuratorate 1987 stipulates that "those engaged in transportation or non-transportation violate road traffic rules and regulations, thus causing major traffic accidents, and on the basis of concrete analysis of the subjective and objective causes of the accidents, they constitute traffic accident crimes and should bear the main or full responsibility for the accidents, in accordance with Article 65438 of the Criminal Law. The "non-transporters" here only refer to people who are not professionally engaged in transportation or are not qualified to engage in transportation, and have traffic accidents during transportation (such as traffic accidents caused by driving without a license), or include other people who do not drive or direct transportation (such as pedestrians crossing the expressway illegally, and drivers braked suddenly to cause rear-end collisions). Does the perpetrator constitute a traffic accident here? Judging from the original intention of judicial interpretation, it seems that it only refers to the former, excluding ordinary pedestrians. However, from the judicial practice, there are many cases of traffic accidents caused by pedestrians' violation of regulations. Due to the different understanding of judicial interpretation, there are very few people who cause traffic accidents by non-traffic drivers or commanders in judicial practice. We believe that neither legislation nor judicial interpretation has restricted the subject of traffic accident crime. As long as there is a causal relationship between the occurrence of traffic accidents and the offender's illegal behavior, the offender can constitute the subject of traffic accident crime. Item (5) of Article 1 of the Notice stipulates that if the person in charge of the unit or the owner of the vehicle forces the unit or its employees to drive in violation of regulations, resulting in a major traffic accident, criminal responsibility shall be investigated in accordance with the provisions of Article 113 of the Criminal Law (refer to 1979 Criminal Law). In this case, according to the theory of indirect principal offender, it is worth discussing whether the person in charge of the unit or the owner and the driver are guilty of the same crime, or whether only the person in charge of the unit or the owner should be investigated for criminal responsibility. Because the criminal law of our country does not think that the same fault can constitute the same crime, in judicial practice, only the person in charge of the unit or the owner of the car is generally investigated for criminal responsibility. However, if this "compulsory order" does not contain the meaning that the driver will have adverse consequences if he does not execute this "compulsory order", but is only a suggestion or opinion, then the driver should be investigated for criminal responsibility. In a similar situation, if a criminal assists a driver in driving illegally, resulting in a major traffic accident, the criminal responsibility of assisting the driver shall be investigated for the crime of traffic accident. In addition, some people think that aviation personnel and railway operators can't constitute the main body of traffic accident crime, because the revised criminal law has newly created "flight accident crime" and "railway operation accident crime"? According to the provisions of Articles 13 1 and 132 of the Criminal Law, only aviation personnel and railway operators can constitute the crime of flight accidents and railway operation accidents, but this does not exclude aviation personnel and railway operators from becoming the main bodies of traffic accident crimes. For example, a mechanic who drives after work violates traffic regulations and causes a major traffic accident. Although A is a mechanic here, he didn't fly here but drove a car to cause an accident, so A's behavior can only constitute a traffic accident crime.

The second is the understanding and identification of "escaping after traffic accident" and "causing death due to escaping"

According to Article 133 of the Criminal Law, anyone who escapes after a traffic accident or has other particularly bad circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; Whoever escapes and causes death shall be sentenced to fixed-term imprisonment of not less than seven years. Theoretic circles generally refer to this provision as "the constitution of derivative crime". Due to the serious problem of escaping after traffic accident in judicial practice, it is necessary to further study the composition of this derivative crime.

(1) The problem of escaping after a traffic accident. The so-called escape after a traffic accident means that after a traffic accident, the main responsible person fled the scene of the accident without immediately reporting to the relevant departments to help rescue the injured and take necessary measures to prevent the loss from expanding. The act of escaping after the accident not only destroys the scene of the traffic accident, but also often causes the injured person in the accident to be rescued in time, resulting in serious injury and death, and the avoidable loss is enlarged because the necessary measures are not taken. Therefore, it is in line with the principle of consistency between crime and punishment to stipulate heavier punishment for escape after an accident, and it is also necessary to crack down on this kind of crime. However, in judicial practice, it is necessary to distinguish between the escape behavior after the accident and the escape behavior that the driver has to take for fear of retaliation from the victim's family, and the situation that he has to leave the scene because of performing an emergency task. In practice, after a traffic accident, the victims' families often gather people to retaliate against the perpetrators because of their emotional loss of control. In this case, the driver's escape behavior is essentially different from the behavior of escaping from responsibility after the accident. In addition, when the actor performs emergency tasks such as emergency rescue and disaster relief, the behavior of leaving the scene to continue to perform the task after the accident should not belong to escape after the accident. There are different views on whether the plot of "escaping after a traffic accident" belongs to the constitutive elements of a crime or the plot of sentencing. There is a view that escaping after a traffic accident is not only a sentencing plot, but also an important constituent element of a crime. Escape is a sentencing circumstance when the behavior of the doer has constituted a crime, and it can be a constitutive element of the crime when the behavior of the doer has not constituted a crime. Because "in some escape cases after accidents, there is indeed evidence that the perpetrators only bear secondary or equal responsibilities. This kind of accident behavior does not constitute a crime. It is only because of the serious circumstances of escape that the crime is recognized after comprehensive consideration of its social harmfulness. " ? We believe that the escape behavior after a traffic accident is an after-the-fact behavior, which can reflect the subjective viciousness of the traveler to a certain extent, but this after-the-fact behavior does not play a decisive role in whether the previous behavior constitutes a crime, that is, the escape behavior after a traffic accident cannot be used as a constituent element of the traffic accident crime. On the premise that there is evidence to prove that the accident behavior of the perpetrator does not constitute a crime, even if the perpetrator has the plot of escape, it cannot be considered that the traffic accident behavior constitutes a crime. According to the provisions of Article 133 of the Criminal Law, the behavior of the perpetrator only constitutes a crime when it violates traffic regulations and causes serious injuries, deaths or heavy losses to public and private property. If the perpetrator did not violate the traffic regulations or violate the rules but did not cause serious consequences, even if the perpetrator fled after the accident, it would not constitute a crime, otherwise it would violate the principle of legality. Therefore, we believe that the escape behavior after a traffic accident is only a sentencing circumstance, that is, if the perpetrator commits the crime of traffic accident, he should be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.

(2) The problem of escape causing death. Death caused by escape means that after a traffic accident, the victim who was injured in the accident did not get timely rescue and died because the actor escaped. The establishment of "death caused by escape" must meet the following conditions: First, the actor fled after a traffic accident.

Escape behavior; Second, the consequences of the victim's death; If the victim survived because of the help of others, even if the perpetrator fled after the accident, the provisions of this paragraph shall not apply. Thirdly, there is a direct causal relationship between the death of the victim and the escape behavior of the perpetrator; The so-called direct causality means that the victim did not die in the traffic accident at that time, and the death result could be avoided as long as he was properly rescued, but the victim died because the perpetrator escaped. There are two main reasons for determining the causal relationship between escape behavior and death result: first, there is evidence to prove that the victim did not die on the spot; Secondly, according to the viewpoint of modern medicine, the injury of the victim can be avoided as long as it is treated in time. If the victim's injury is fatal, even if the rescue is timely, it will not save his life. In this case, the cause of the victim's death is the traffic accident of the perpetrator, and there is no causal relationship between it and the escape behavior. The following problems should be paid attention to when determining that the victim died because the perpetrator escaped: First, the perpetrator himself fled the scene, but others carried out rescue, and the victim died of injuries on the way to the victim's rescue or during the rescue. In this case, although the perpetrator did not carry out rescue, the causal relationship between the victim's death result and the perpetrator's escape behavior was interrupted by the intervention of others' rescue behavior. The perpetrator shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; Second, the perpetrator carried out rescue after the accident, but the victim died in the process of rescue, and the perpetrator abandoned the body to escape responsibility. In this case, the cause of the victim's death is a traffic accident and ineffective rescue measures, and there is no causal relationship with the victim's escape behavior. However, if the perpetrator only sent the victim to a medical institution and fled, resulting in the medical unit refusing to rescue the victim because no one was responsible for the medical expenses, there is a causal relationship between the victim's death and the perpetrator's escape after giving up the rescue, and the perpetrator should bear the criminal responsibility of "death caused by escape". Third, after the accident, the perpetrator deliberately moved the victim to a secluded place to escape responsibility, or even hid and buried the victim and fled the scene. In this case, the author thinks that the perpetrator's behavior of concealing and transferring the victim constitutes the crime of intentional homicide. Because the subjective aspect of the perpetrator has changed, his consequences for the victim's death are no longer out of negligence, but laissez-faire and even hope. Because of his previous accident behavior, the actor put the victim in a state of urgent need of rescue, and the actor has the legal obligation to carry out rescue behavior. When the actor subjectively hopes or lets the victim die, objectively refuses to perform the obligation to help the victim, and there is a causal relationship between the victim's death and the actor's behavior, the actor constitutes the crime of intentional homicide, which is combined with several crimes caused by his previous behavior; If his traffic accident behavior has no other serious consequences except causing serious injuries to the victim, it is established as an absorption crime, and his intentional homicide absorbs traffic accident behavior and is only treated as intentional homicide.

Third, the causal relationship in the crime of causing traffic accidents.

In real life, the crime of causing traffic accidents is only included in the scope of criminal law adjustment, which is limited to traffic accidents that cause serious injuries, deaths or heavy losses of public and private property because the actor violates traffic management regulations. However, there are many reasons for traffic accidents. In addition to the offender's illegal behavior, there may be other factors involved, which have an important influence on what kind of responsibility the offender should bear in traffic accidents and the size of the responsibility. Therefore, it is of great significance to correctly analyze the causes of traffic accidents and accurately divide the responsibilities for accurately identifying the crime of traffic accidents. The intervening factors in traffic accidents can be summarized as: (1) the victim's fault. For example, the victim himself violated traffic regulations, crossed the road and walked on the highway. And the driver failed to avoid because the speed was too fast, resulting in the death and injury of the victim. (2) The fault of the third party. That is to say, in addition to the illegal behavior of the perpetrator, the fault behavior of the third person contributed to the accident. If a third person overtakes illegally, it forces the driver who is speeding to avoid, but the speed is too fast and he rushes onto the sidewalk, causing casualties. (3) Natural factors such as wind, rain, fog, snow, flood and landslide. (4) The vehicle and the equipment themselves are out of order. For example, during driving, the tire suddenly burst and the brakes failed. When these intervention factors and the illegal behavior of the actor appear at the same time, resulting in major traffic accidents and serious damage consequences, it is necessary to quantitatively analyze the role of the actor's illegal behavior in causing traffic accidents to determine the size of his responsibility. Specifically, the liability of the perpetrator in traffic accidents can be roughly divided into four types: full liability, primary liability, equal liability with other intervening factors, and secondary liability. So how much responsibility does the actor have for his illegal behavior to constitute a crime? Article 1 of the notice stipulates that "if a transport person or a non-transport person violates the road traffic rules and regulations and causes a major traffic accident, and on the basis of a concrete analysis of the subjective and objective causes of the accident, he is mainly or fully responsible for the accident, he shall be investigated for criminal responsibility in accordance with the provisions of Article 1 13 of the Criminal Law." According to this judicial interpretation, only when the actor takes full or main responsibility in the traffic accident can his behavior constitute a crime. However, the theoretical circle does not agree with this view, and thinks that those who have caused very serious consequences or especially bad circumstances can be indulged but only bear secondary responsibility for the accident. ? The author believes that the current criminal law does not clearly stipulate how much responsibility the pedestrian should bear in traffic accidents, but the crime of causing traffic accidents, as a kind of business negligence crime, is highly dangerous in the face of the high speed of modern traffic, and strict requirements for the personnel engaged in transportation are necessary to protect the lives and property of the general public. Needless to say, the actor who is fully or mainly responsible for the occurrence of traffic accidents constitutes a crime. When the actor's illegal behavior plays the same role as other intervening factors, there is also a causal relationship between his illegal behavior and the serious harmful consequences in criminal law, and his accident behavior also constitutes a crime. As for the offender's violation of regulations, it only plays a secondary role in traffic accidents and generally should not be treated as a crime.