A should bear criminal responsibility, because the classroom, as a child, has the obligation to help the child when the danger occurs, and the occurrence of the child's danger is also related to her, which shows that she did not fulfill her due duty of care and care, which led to the danger of the child, and then the mentality of inaction led to the death of the child.
(2) How to deal with B? why
B is innocent, because he is passing by and has no legal obligation to help, so there is no criminal responsibility involved.
The focus of the report is the responsibility of omission crime. The premise of the crime of omission is the obligation to act. If you don't perform your obligation as an act, it will lead to criminal consequences, so the obligor should be responsible for the results.
(1) Is Liu Fei obligated to support Zhang Jinbao? Why?
No, the reason is that there is no dependency between Liu Fei and Zhang Jinbao. Paragraph 2 of Article 26 of the Socialist Marriage Law stipulates:
Article 26 The state protects the lawful adoptive relationship. The rights and obligations between adoptive parents and adopted children shall be governed by the relevant provisions of this Law on the relationship between parents and children.
The rights and obligations between adopted children and biological parents are destroyed by the establishment of adoption relationship.
(2) Does Liu Fei have the obligation to support Liu Bing? Why?
Have the obligation to support, because Liu Bing is underage, see Article 29 of the Marriage Law.
Twenty-ninth brothers and sisters who can afford it have the obligation to support their minor brothers and sisters whose parents are dead or unable to support them. Brothers and sisters who have the ability to be raised by brothers and sisters have the obligation to raise brothers and sisters who lack the ability to work and the source of life.
The report focuses on the establishment of the legal relationship of support, with emphasis on Article 26 of the Marriage Law. The rights and obligations between adoptive parents and adopted children shall be governed by the relevant provisions of this Law on the relationship between parents and children.
The rights and obligations between adopted children and biological parents are destroyed by the establishment of adoption relationship.
3 (1) What is the legal effect of the contract between Li and Wang? Why?
Effectiveness to be determined
According to the provisions of Article 47 of the Contract Law, a contract concluded by a person with limited capacity for civil conduct shall be valid after ratification by a legal agent, but a purely beneficial contract or a contract that is suitable for his age, intelligence and mental health does not require ratification by a legal agent.
The other party may urge the legal representative to ratify it within one month. If the legal representative fails to express it, it shall be deemed as refusal to ratify it. Before the contract is ratified, the bona fide counterpart has the right to cancel the contract. Revocation shall be made by notice.
(2) What should the court do if Li's parents file a lawsuit?
Without ratification, the contract is invalid. After Wang moved out, he returned the rented house to the landlord on a daily basis as unjust enrichment.
(3) If Li has a job and a certain income, what is the effectiveness of the rental behavior? Why?
If you have income, it depends on whether you can support yourself. If you can, then Li is a person with full capacity for civil conduct, but the property is not Li's, but his parents'. According to the civil law of our country, his behavior of signing the contract belongs to unauthorized disposition, and its effect is to be determined. You need to wait for the approval of the authorized disposition (parents). If you don't approve it within one month, the contract will be invalid.
(4) In this case, Li is a person with limited capacity for civil conduct and Wang is a person with full capacity for civil conduct.
The focus of the report should be on the issue of civil capacity, which is related to factors such as age and mental state.
The clauses involved mainly include the following provisions of the General Principles of the Civil Law: Article 9 A citizen has the capacity for civil rights from birth to death, enjoys civil rights and assumes civil obligations according to law.
Article 10 All citizens are equal in their capacity for civil rights.
Article 11 Citizens over the age of 18 are adults with full capacity for civil conduct and can engage in civil activities independently.
A citizen who has reached the age of 16 and is under the age of 18 and whose main source of livelihood is his own labor income is regarded as a person with full capacity for civil conduct.
Article 12 Minors over the age of 10 are persons with limited capacity for civil conduct and may engage in civil activities appropriate to their age and intelligence. Other civil activities shall be represented by their legal representatives or with the consent of their legal representatives.
Minors under the age of 10 are persons without capacity for civil conduct, and their legal representatives act as agents in civil activities.
Article 13 A mental patient who cannot identify his own behavior is a person without capacity for civil conduct, and his legal representative shall act as an agent for civil activities.
Mental patients who can't fully recognize their own behavior are people with limited capacity for civil conduct and can carry out civil activities that are suitable for their mental health; Other civil activities shall be represented by their legal representatives or with the consent of their legal representatives.
Article 14 The guardian of a person without or with limited capacity for civil conduct is his legal representative.
As well as the aforementioned Article 47 of the Contract Law, a person with civil capacity is restricted from concluding a contract, and the contract is valid after ratification by a legal representative, but a contract with pure income or a contract suitable for his age, intelligence and mental health does not need ratification by a legal representative.
The other party may urge the legal representative to ratify it within one month. If the legal representative fails to express it, it shall be deemed as refusal to ratify it. Before the contract is ratified, the bona fide counterpart has the right to cancel the contract. Revocation shall be made by notice.
Article 48 A contract concluded in the principal's name after the actor has no agency right, exceeds the agency right or the agency right is terminated, without ratification by the principal, it will not be effective for the principal, and the actor shall bear the responsibility.
As China entered the automobile society, traffic accidents occurred frequently, which caused shocking social problems. Because of the high proportion of accidents caused by drunk driving and great harm, it has aroused widespread concern. Drunk driving and drunk driving are becoming more and more popular. According to the comparison of illegal costs and benefits, "drunk driving into punishment" is the general trend and the will of the people. The Criminal Law Amendment (VIII) conforms to the changes of the times and increases the punishment for drunk driving.
Keywords: illegal costs and benefits of drunk driving
I. Overview of "Drunk Driving" Cases under the Criminal Law Amendment
On June 5438+February 65438+February 4, 2008, Sun Weiming collided with four cars in driving without a license on Chenglong Road, Chengdu, killing four people and injuring 1 person. On July 22, 2009, Chengdu Intermediate People's Court sentenced him to death for endangering public security by dangerous methods. Sun Weiming refused to accept the verdict and appealed. On September 4th, Sichuan High Court conducted the second trial of Sun Weiming's case. At 8: 30 am on September 8, Sichuan Provincial High Court sentenced Sun Weiming to life imprisonment and deprived of political rights for life for the crime of endangering social security by dangerous means. In 2009, there were many cases of drunk driving in China, among which Zhang Mingbao case, Sun Weiming case in Sichuan and Li Jingquan case in Guangzhou had the worst influence. At 8: 30 pm on June 30, 2009, Zhang Mingbao, who was engaged in construction project contracting, ate and drank with his friends at Jinsheng Road, Jiangning District, Nanjing, and drove home. He knocked down nine passers-by and damaged six motor vehicles parked on the roadside, causing five deaths and injuries. On the night of the incident, Zhang Mingbao was under police control. According to the traffic police, Zhang Mingbao was drunk driving. The blood alcohol concentration at the time of the incident was as high as 38 1mg/ 100ml. On July 5th, 65438, Nanjing People's Procuratorate approved the arrest of Zhang Mingbao on suspicion of "endangering public security by dangerous means". On October 29th, 65438/kloc-0, Nanjing People's Procuratorate filed a public prosecution with Nanjing Intermediate People's Court on Zhang Mingbao's suspicion of "endangering public security by dangerous means". After the incident, Sun Weiming's drunken driving caused 4 deaths 1 injury case, which caused widespread concern, was not sentenced to death in the second instance. Therefore, how to judge Zhang Mingbao and whether he will be sentenced to death have become the focus of attention from all walks of life. On June 27th, 2009, 165438+ The case was heard in public in Nanjing Intermediate People's Court. The prosecution believes that the behavior of Zhang Mingbao, the driver who caused five deaths and four injuries due to drunk driving, has constituted the crime of endangering public safety by dangerous means, and it is suggested that the court should be sentenced and convicted accordingly. On the morning of June 23, 2009, the "June 30" case in Jiangning, Nanjing was pronounced in the first instance of Nanjing Intermediate People's Court. Zhang Mingbao, the perpetrator, was sentenced to life imprisonment and deprived of political rights for life.
Coupled with the recent sensational "Yao Jiaxin case", "drunk driving" has become one of the key words this year. However, it is the different "fate" of each drunk driver that pushes this series of events to the climax of the public opinion storm. Sun Weiming, a young man from Chengdu, was sentenced to death in the first instance and was sentenced to life in the second instance, because he didn't have a driver's license and drunk driving caused 4 deaths 1 serious injuries. Nanjing Zhang Mingbao was sentenced to life imprisonment; Hangzhou guy Wei Zhigang was sentenced to two years and three months in prison; As for the case of Yao Jiaxin, Yao Jiaxin was sentenced to death in the first instance, but in view of Yao Jiaxin's appeal, his final fate is still up in the air.
According to the statistics of the Ministry of Public Security, in 2008, there were 265,204 road traffic accidents in China, which directly caused property losses of 1.0 1 billion yuan. 73,484 people were killed and 3,04919 injured in traffic accidents. However, according to international statistics, traffic accidents caused by drunk driving motor vehicles account for 25% of the total traffic accidents. In 2008, 654.38+083.765.438+0 people were killed, 76.230 people were injured and the direct property loss was 250.25 million yuan. The harm of drunk driving is shocking and has become the first "hidden danger" of traffic safety. According to the Threshold and Detection of Alcohol Content in Blood and Breath of Vehicle Drivers issued by the General Administration of Quality Supervision, Inspection and Quarantine and the National Standards Committee in 2004, the threshold of alcohol content in drunk driving in China is 0.2%, which is higher than the American standard of 0. 1% and far higher than the Japanese standard of 0.05%, the German standard of 0.03% and the Swedish standard of 0.02%. This fully shows that the starting point for determining drunk driving standards in China is very loose. The seriousness of the problem lies in that China's handling of drunk driving is not only extremely loose, but also extremely loose. No wonder both ordinary people and experts and scholars shout: the current legal provisions in China make the illegal cost of "drunk driving" too low! The Ministry of Public Security will increase the score of illegal drunk driving from April 2065438 to April 2000, with a one-time score of 12, which is in line with drunk driving. Deducting 12 points is just the beginning. The voice of "drunk driving into punishment" from all walks of life is getting higher and higher.
The People's Republic of China (PRC) Criminal Law Amendment (VIII) was adopted by the 19th meeting of the 11th NPC Standing Committee in People's Republic of China (PRC) on February 25th, 20 1 1, and came into force on May 25th, 201/. One article is added after Article 133 of the Criminal Law as one of Article 133: "Whoever drives a motor vehicle on the road to chase a race, if the circumstances are bad, or who drives a motor vehicle drunk on the road, shall be sentenced to criminal detention and fined." Drunk driving is officially "punished".
It is noteworthy that since the promulgation and implementation of the Criminal Law Amendment, there are still people who violate the law regardless of the illegal cost and the punishment of the law. On the afternoon of May 5, Wugang People's Court made a public judgment, and Hou, a drunk driver, was sentenced to four months' criminal detention and fined 2000 yuan for dangerous driving. After the verdict was pronounced, Hou said in court that he accepted the verdict and did not appeal. This case has become the first sentencing case involving drunk driving in Henan province and even the whole country since the implementation of "drunk driving into punishment". In addition, Li Junjie, the first drunk driver in Beijing, had his driver's license revoked according to law. Liao Xinghua, the first driver involved in alcohol in Chongqing, was prosecuted.
Second, the analysis of law and economics
Whether to severely punish "drunk driving" is a problem worth studying.
The so-called illegal cost refers to the price that organizations or individuals who commit illegal acts have to pay for their illegal acts. The cost or expense of an illegal act is legal. The reason why national laws set costs or costs for illegal acts is to reduce or eliminate illegal acts. The basis of illegal cost to curb and limit illegal behavior is that people have the nature of "pursuing advantages and avoiding disadvantages" when making their own behavior judgments and choices, especially when standing at the boundary between legal (law-abiding) and illegal, illegal cost often plays a key role. The usual situation is: the cost of breaking the law is low, and people usually choose to break the law instead of obeying the law; On the contrary, illegal costs are high, and people usually choose not to violate the law and choose to abide by it. When the illegal cost is lower than the illegal income, most people choose to violate the law; When the illegal cost is equal to the illegal income, most people have a fluky psychology, that is, they hope that their illegal behavior will not be discovered or investigated; When the illegal cost is higher than the illegal income, most people may choose not to violate the law or obey the law. This is the "inverse relationship" between the possibility of breaking the law and its cost. Only by setting the cost (or cost) far higher than the illegal income for illegal acts can we effectively curb and restrict the occurrence of illegal acts.
From the perspective of law and economics, criminal law focuses on the logic of collective action, not on individual interests. From the economic point of view, the problems that the parties can solve by themselves should be solved by civil law, and only the problems that the parties can't solve by themselves or through civil law can be solved by criminal law. When the criminal commits a crime, when the income of the crime is greater than or equal to the expected punishment, this situation has its realistic possibility. What the criminal pursues is the profit of crime, that is, his criminal behavior must be efficient, so that the profit of crime is greater than the social cost. When the expected punishment is greater than or equal to the criminal's income, the crime can be contained, and when the marginal social cost of reducing the crime is equal to the marginal social income (in fact, the marginal net loss), the optimal social deterrent is realized. According to the provisions of Article 133 of China's current criminal law: "Whoever violates the traffic and transportation management regulations and thus causes a major accident, causing serious injury, death or heavy losses to public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever 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; If death is caused by escape, he shall be sentenced to fixed-term imprisonment of more than seven years. " This dangerous behavior of drunk driving can only constitute a crime, that is, the crime of causing traffic accidents, if it causes serious consequences, otherwise, it can only be given administrative punishment according to the provisions of Article 91 of the Road Traffic Safety Law. Article 91 of the Road Traffic Safety Law stipulates: "Whoever drives a motor vehicle after drinking alcohol shall temporarily suspend his motor vehicle driver's license for more than one month and less than three months, and impose a fine of more than 200 yuan and less than 500 yuan; Anyone who drives a motor vehicle after being drunk shall be restrained by the traffic administrative department of the public security organ until he wakes up, and shall be detained for less than fifteen days and temporarily detained for more than three months and less than six months, and shall be fined not less than five hundred yuan but not more than two thousand yuan. Driving and operating a motor vehicle after drinking, temporarily withholding the motor vehicle driver's license for three months and imposing a fine on 500 yuan; Anyone who drives or operates a motor vehicle after being drunk shall be detained by the traffic administrative department of the public security organ, temporarily detained for six months until he wakes up on the 15th, and fined 2,000 yuan. If you have been punished for driving a motor vehicle after being drunk in the first two paragraphs within one year, your motor vehicle driver's license shall be revoked and you shall not drive or operate a motor vehicle within five years. " From this regulation, we can see that the illegal cost of drunk driving is to temporarily detain the motor vehicle driver's license for more than 1 month and less than 3 months, and impose a fine of more than 200 yuan and less than 500 yuan, or temporarily detain the motor vehicle driver's license for 3 months and impose a fine of 500 yuan. The illegal cost of drunk driving is to be detained for more than 3 months and less than 6 months on 15, and fined for more than 2,000 yuan in 500 yuan, or detained for less than 6 months on 15, and fined for 2,000 yuan. It can be seen that the illegal cost of drunk driving is lower than the income brought by the offender due to drunk driving. According to the provisions of the Criminal Law, it can be seen that the illegal cost of serious injury, death or heavy loss of public and private property caused by drunk driving is that if it is investigated, it will be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and it will be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. These low illegal costs make the offenders feel lucky and choose to break the law.
Although the Ministry of Public Security has increased the score of illegal drunk driving from April 2065438 to April 2000 to 12, compared with the penalties imposed on drunk driving in Europe and America, the cost is still too low, and the measures of deducting 12 sometimes seem pale and powerless in the face of drunk driving.
"People's Republic of China (PRC) Criminal Law Amendment (VIII)" stipulates: "Whoever drives a motor vehicle to chase and race on the road, if the circumstances are bad, or who drives a motor vehicle drunk on the road, shall be detained and fined." In this way, the illegal cost of drunk driving has been greatly increased, and the lucky ones have changed from illegal to illegal, and they have chosen to abide by the law in order to avoid large illegal costs.
From the legal and economic point of view, severe punishment of drunk driving is to increase the illegal cost of drunk driving. "Drunk driving into punishment" brings "drunk driving" into the adjustment range of criminal law. No matter how the punishment will be set, as long as it is brought into criminal law, it will have a psychological deterrent effect. In this way, the illegal cost increases, and the illegal cost is higher than the expected income of the offender. It should be pointed out that we advocate that offenders should bear the cost or price far higher than their illegal gains, but we are not "heavy penalty activists" or "heavy penalty activists". Practice has repeatedly proved that heavy punishment and heavy punishment cannot effectively curb crimes and illegal acts. On the contrary, the negative effect of heavy punishment on curbing crime and breaking the law is obvious. Effective prevention and containment of crimes does not lie in multiple punishments for criminal acts, but in whether criminal acts are generally investigated effectively. However, the low illegal cost makes illegal activities unscrupulous. Illegal acts can generally be effectively investigated and dealt with, and the probability of offenders escaping punishment is very low, which requires increasing the illegal cost. Because for the vast majority of people, the reason for breaking the law is to consider the low illegal cost in exchange for the income higher than the cost, so there is a lucky psychology that will not be discovered or can escape investigation. Therefore, when raising the illegal cost, we should consider how high it is, so that everyone will not break the law, nor will they be severely punished and fall into heavy punishment.
The punishment of drunk driving has undoubtedly brought great shock to drunk drivers. It is also the proper meaning of establishing and perfecting the socialist legal system and building a socialist country ruled by law.