Keywords: drunk driving behavior; Traffic accidents; Drunk crime; public safety
Modernity has stood out from the outline of the classical industrial society and formed a brand-new "risk society" form. [1] Taking transportation as an example, the society has chosen modern transportation for speed, spared no effort to develop and tolerated the risk of destruction to a certain extent. Of course, in this process, the society also tries to control the risk within the scope of "permission" and "tolerance" with a standardized system in order to achieve the goal of harmonious social development. In recent years, with the explosive growth of car ownership in China, the serious harmful consequences caused by traffic accidents have aroused widespread concern. Take the statistics of the Ministry of Public Security in 2008 as an example. In 2008, there were 265,204 road traffic accidents nationwide, with direct property losses of 1, 0 1 billion yuan. 73,484 people were killed and 3,04919 injured in traffic accidents. Serious consequences have repeatedly challenged the public's "tolerance" bottom line. Among them, drunk driving is even more irritating, and its lack of criminal regulation is widely criticized. It is undoubtedly an urgent task for the theoretical circle to analyze the defects of the current criminal law in regulating drunk driving and explore countermeasures.
First, the current dilemma of the criminal law regulation of the crime of drunk driving and causing trouble
The fourth paragraph of article 18 of China's criminal law stipulates: "A drunken person who commits a crime shall bear criminal responsibility." This clause concisely stipulates that the drunken actor shall bear criminal responsibility for the behavior that conforms to the constitution of the crime in his drunken state. However, there is a lack of regulations on whether the actor can constitute a crime, what kind of crime (intentional or negligent) and whether he can reduce his criminal responsibility when his capacity for responsibility is lost or obviously weakened under drunkenness. At best, it is only based on the significance of natural law and the realization of utilitarian purpose of punishment, and it is suspected of "hindsight" to stipulate the punishability of drunken people's crimes. Due to the lack of detailed legal support, the judicial determination of drunk driving accidents is confused and confusing.
(a) The scope of the types of drunkenness that can be punished is unclear.
China's criminal law only stipulates the punishability of drunken criminals, but lacks a detailed definition of the types of drunken criminals. Drunkenness in a broad sense includes physiological drunkenness, complex drunkenness and pathological drunkenness. In the actual judicial operation, in order to prove what kind of drunkenness it is, it is necessary to analyze the mental qualification of the actor when he is drunk and infer his criminal responsibility. In this regard, some people think that because compound drunkenness is an intermediate state between physical drunkenness and pathological drunkenness, the identification and control ability of compound drunkards is only weakened rather than completely lost, and the application of physical drunkenness can solve criminal responsibility, while pathological drunkenness can be classified as the determination of criminal responsibility ability of mental patients without distinction in law. [2] However, it is logical and absurd to deny the specific distinction between the types of criminal responsibility for drunkenness, which is also based on the distinction between the mental qualifications of the actor in a drunken state. More importantly, the purpose of distinguishing the types of drunkenness is to prevent the "one size fits all" punishment from expanding. Generally speaking, the perpetrator of pathological drunkenness (especially the first drunkenness) should be a person without criminal responsibility. If criminal responsibility is investigated too severely, it is generally treated as a temporary "mental illness" in judicial practice, but the omission of legislation makes the practice suspected of violating the principle of a legally prescribed punishment for a specified crime. What needs to be considered is whether the actor who is also in a state of no responsibility after being drunk should bear all criminal responsibilities, to what extent should the actor who is in a state of limited responsibility bear criminal responsibilities, and why? From this, it can be inferred that the problem of criminal responsibility ability of people who are drunk is an unavoidable problem in the process of demonstrating the rationality of penalty use and an important link to limit the arbitrariness of penalty power.
On the other hand, China's criminal law does not specify whether the actor is drunk voluntarily or involuntarily. Involuntary drunkenness is mostly caused by irresistible or unpredictable reasons such as coercion and deception. Referring to British legislation, the restrictions on involuntary drunkenness are more stringent. If the defendant knows that he is drinking, he cannot declare that he is involuntarily drunk just because he underestimated the amount of drinking or the influence of drinking on him. Only when the defendant didn't realize that he was drinking alcoholic drinks, or under certain circumstances, a person was drunk because he took drugs prescribed by medical treatment (assuming alcohol), it was involuntary drunkenness. [3] Take drunk driving as an example. Involuntary drunkenness has no understanding of drunkenness itself, and there is no subjective mentality of intentionally and negligently driving a vehicle beforehand. However, a drunk driver who commits a harmful act without responsibility shall not bear criminal responsibility; If it is carried out under limited liability, it is necessary to identify subjective intention or negligence according to the situation of the act, and then clarify the severity of criminal responsibility. Due to the lack of criminal law in our country, the complicated situation is oversimplified, and there are inevitably different opinions on the subjective aspects of the crime of drunk driving.
(B) the plight of the crime of drunken driving.
The sloppy provisions of the criminal law on drunkenness are not only reflected in the unclear scope of drunken people who should be punished, but also in the identification of the constituent elements they point to. In the current public cases, the perpetrators of drunken driving accidents in judicial trials also involve disputes about "traffic accident crime" or "endangering public safety by other dangerous methods". (1) Although the specific circumstances in each case are different, the controversy over the subjective analysis of the actor's drunken behavior has never stopped. One view is that a core concept of the crime of causing traffic accidents is to "stir up trouble". In its original meaning, "stirring up trouble" not only means causing an accident due to negligence, but also means deliberately provoking trouble. In real life, traffic accidents caused by drunk driving are more likely to be deliberately let go. [4] This view holds that drunk driving is still emerging in an endless stream even though the law explicitly prohibits it and public opinion repeatedly denounces it, indicating that the actor can be aware of the danger of harm, but he doesn't care whether the harmful result occurs, that is, he doesn't oppose the actual occurrence of the danger, which is consistent with the mentality of indirect intentional laissez-faire, which is conducive to the conviction of the crime of endangering public safety by other means. This view starts from remolding the value of legal order and striving to safeguard legal interests. If the subjective negligence of the perpetrator is still the constitutive element of the crime of traffic accident, it is argued that the regulation of drunk driving should be ahead of schedule and coordinated with the sentencing of felony, that is, whether there is a harmful result is not a necessary element to initiate the investigation of criminal responsibility, but to change the consequential crime of traffic accident negligence into an abstract dangerous crime. As long as the drunk driving behavior is discovered, it can be concluded that it has caused a danger that is not allowed by law and is an attempt. If the hazard is realized, it will be established and the penalty will be increased to 60. At present, there is a broad public opinion base that the felony of drunk driving is a heavy sentence. In addition to its supportive voice, there is also a view that the principle of unity of subject and object in criminal law should be adhered to. Drunk drivers are subjective or negligent. Although they are aware of the harmful consequences of drunkenness, they think that they have the ability to avoid the occurrence of harmful consequences, and subjectively do not want the consequences to really happen, which is far from the mentality of being indifferent to the occurrence of harm indirectly. Therefore, they still insist on the conviction of the crime of causing traffic accidents. As for the behavior of evading responsibility after a traffic accident, such as causing casualties or heavy losses during the escape, it can be judged according to the specific situation. [5 ]
The subjective identification of drunk drivers is controversial, which is a mixture of criminal policy considerations such as the purpose of punishment and the effect of punishment implementation. However, due to the lack of analysis of the criminal responsibility ability of drunkards and punishment for their behavior, there is a danger of confusing the behavior of drunkards with the behavior of drunkards, and falling into the void of utilitarian determination that drunkenness constitutes a crime, which makes the punishment for drunk driving more involved in the sense of natural law, resulting in a situation in which similar cases are guilty and not guilty, and many opinions are hard to refute.
Second, clarification of subjective identification of drunk driving accidents
As mentioned above, the important factor of ineffective regulation of drunk driving behavior lies in the "chaos" of the criminal law itself. Because there is no clear legal principle to sort out the relationship between the state of criminal responsibility ability and the behavior carried out in a drunken state, when encountering "drunkenness", the specific identification of criminal responsibility ability in a specific state will be ignored and the subject will be judged directly. According to the provisions of Article 2 of the Interpretation of the Supreme Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents, "Driving a Motor Vehicle after Drinking and Taking Drugs" and "Causing serious injuries to more than one person, bearing all or the main responsibility for the accident", the crime of traffic accidents is directly convicted and punished, thus the existence of subjective fault of the perpetrator is determined in reverse, and the form of fault can only be negligence; For the reason why drunken accidents can be identified as crimes, the reverse search answer is based on the fourth paragraph of Article 18 of the Criminal Law; What is the legal basis for punishing drunken criminals in the general principles of criminal law? To achieve the purpose of punishment, we need to find the answer again. Then, since in order to better achieve the purpose of punishment, why not use the crime of endangering public safety in other dangerous ways to regulate drunk driving accidents, there is a dispute about whether drunk drivers are intentional or negligent subjectively, and the behavior of actors in two independent stages of "drunkenness" and "driving" is blurred as ". Therefore, in order to clarify the subjective aspects of drunk drivers, it is necessary to go to the appearance and trace back to the source, starting with the determination of the degree of responsibility for human behavior in the state of drunkenness and the legal basis for supporting the implementation of behavior in the state of special punishment.
(1) Status of responsibility ability of drunk drivers
According to the observation and research of modern medicine and forensic psychiatry, people's physiological, psychological and spiritual changes can be roughly divided into three periods: the first period is the excitement period, which generally appears quickly after the pure alcohol content in alcoholic beverages reaches 20 ~ 40 ml, when the drinker's self-control ability decreases, he likes to argue with others, and his mood is unstable and easily excited; The second period is * * * ataxia, which mostly occurs when drinking a lot. At this time, the drunken person is in a drunken state, with increased speech, slurred speech, unstable gait and decreased recognition ability. When the economic movement tends to be unbalanced, the ability to control behavior is obviously weakened; The third period is drowsiness. When the pure alcohol content in the wine is above 100ml, the drinker may have deep sleep, loss of consciousness, coma and other manifestations, and in severe cases, he may die due to the damage of the respiratory center. [6] According to the determination of alcohol content in the blood of motor vehicle drivers in China, the driving behavior with alcohol content greater than or equal to 20mg P 100ml and less than 80mgP 100ml belongs to drinking driving; The driving behavior of vehicle drivers whose blood alcohol content is greater than or equal to 80mgP 100ml belongs to drunk driving. The level of alcohol concentration in the blood of motor vehicle drivers is also related to the physical quality of drinkers. ② It is possible that actors who think they are sober have higher alcohol blood concentration than those who are already confused. Therefore, in the process of drunk driving, the actor has the possibility of restricting behavior, incapacitating behavior, restricting behavior to incapacitating behavior and incapacitating behavior to restricting behavior. Its influence on the criminal responsibility of the perpetrator will be analyzed below.
(2) Whether the theory of free action for cause can be applied to drunken driving accidents.
When a drunk driver has limited or no capacity for behavior, it is an unavoidable problem whether his behavior will affect his criminal responsibility because of his lack of capacity for behavior. Accordingly, the civil law system discusses the theory of free act of cause in detail. The act of freedom of cause means that the actor intentionally or negligently puts himself in a state of no responsibility, which leads to a result that meets the constitutive requirements. [7] The behavior that the actor makes himself fall into a state of no responsibility or limited liability is called causal behavior; Acts that conform to the constitution of a crime and are carried out under the state of no responsibility or limited responsibility are called consequential crimes. Because the actor has the ability to decide independently on the behavior of setting the cause, it is commensurate with the behavior of free cause. As an exception to the principle of "coexistence of responsibility and behavior", this theory aims to regulate the criminal responsibility of drunken people by tracing back the subjective malignancy of the actor's limited capacity or incapacity. However, with the refinement of the theory, the theory itself revolves around how to solve the core problem of "what is the meaning of an act with both responsibility and behavior" [8], which mainly includes the following viewpoints [9- 12]: First, the theory of indirect principal offender structure. This view focuses on causal behavior, analogizing the theory of indirect principal offender, using causal behavior to find the subjective basis of implementing behavior, and adhering to the principle of coexistence of implementing behavior and responsibility ability; Second, the theory of behavioral meaning determination. This view focuses on the result behavior, ignoring the principle that behavior and responsibility coexist to some extent, and traces the actor's ultimate will-determining ability in the cause behavior with the result behavior, that is, to investigate the responsibility of the whole behavior with control in advance; Third, the theory of quite causal behavior. This view holds that as long as there is a considerable causal connection and responsibility connection between the cause behavior and the result behavior, the responsibility of the cause free behavior can be investigated. The related arguments of free action based on reasons are still in dispute and development, and the confrontation between arguments is beyond the scope of this article, so I will not repeat them here. However, it is of great significance to apply the theory of free action for reasons in drunk driving cases to distinguish between "drunk" and "driving" behaviors. Compared with the jurisprudence of relevant contents in China, it is more helpful to clarify the subjective responsibility of behavior.
(3) Classification and determination of subjective responsibility
As a legal principle to demonstrate the punishment of behavior under special circumstances, the theory of free action in cause should be affirmed. Just as the view of denying the penalty of free action for cause has been accused, "the psychological connection between mental loss and previous loss has been completely cut off." It is inconceivable that decisions made in a normal mental state can be consciously carried out according to the original plan in the case of mental loss. If it can still be carried out as planned, it can be proved that the mind is not lost and the perpetrator cannot be exempted from criminal responsibility; If you say that you have lost your mind, you should have no responsibility "[13]. Facing the query of _ _ negative theory, it is regrettable that the act of freedom of cause cannot be convincingly explained. However, it is enough to identify the responsibility of drunk driving. Because the actor may be in the stage of the consequential offense with limited capacity or no capacity, when the causal behavior is established and the consequential offense has a considerable causal relationship, the actor's subjective responsibility can be proved by using the causal free behavior, and the actor's subjective responsibility can be directly determined when the causal relationship is not obvious. This is the advantage of the theory of quite causal behavior, and the author also holds this view, that is, combining the behavior ability of the actor after drunkenness with the jurisprudence of free behavior for reasons.
1. The drunk driver is in a state of limited capacity. At the beginning of the result behavior, this kind of actor is in a state of limited capacity until the actual harmful result occurs. At this time, the actor has not completely lost the ability to recognize or control his behavior, but his ability to observe or control is reduced due to drunkenness, and he is in an abnormal driving state. It is precisely because they are not completely incapacitated that subjective intention and negligence exist, which should be divided into four situations: intentional drinking+intentional behavior, intentional drinking+negligent behavior, negligent drinking+intentional behavior, and negligent drinking+negligent behavior. The former has intentional mentality and negligent mentality, and the implementation behavior after this state also has intentional mentality and negligent mentality, including the original intentional mentality that is difficult to reverse under the condition of restricting behavior, and the new intentional mentality or harmful negligent mentality.
First, in the case of intentional drinking+intentional behavior, the intention of drinking is weakened by the intention of implementing the behavior, and the actor's falling into a state of limited capacity may only be one of the steps to finally complete the behavior, or it may be that there is no intention to commit a crime in the stage of intentional drinking, but the intention to implement B is formed when implementing drunk driving behavior. Therefore, in the case of intentional continuity, the relationship between the cause behavior and the result behavior of the former is close, and the psychology of the former can be absorbed by the subjective psychology of the latter. For example, in order to carry out harm, the actor intentionally drinks alcohol and falls into a drunken state, but when drunk driving, he intentionally kills people. At this time, the criminal responsibility of the perpetrator's intentional homicide is directly determined according to the intentional mentality of the perpetrator when he is drunk driving.
Secondly, in the case of intentional drinking+negligence, based on the actor's limited behavioral ability, and the cognitive ability or control ability is only weakened to a certain extent, the prior malice of self-trapping behavior cannot be transformed into negligence with a negative attitude towards the harmful results. Self-trapping behavior may only occur unintentionally or intentionally, and the actor is at fault for the B result in the stage of behavior realization. At this time, the cause behavior is the beginning of the result behavior. If there is no cause behavior, there is no result behavior, so the theory of free behavior of cause can be applied. If intentional drunkenness is a crime of A, it should be considered as an attempted crime of A, and be punished as a negligent crime of B ***. For example, the actor drank too much and bravely killed A. When he arrived at the crime scene, passerby B died of drunk driving, so the actor should constitute the crime of intentional homicide (preparation) and traffic accident; If there is no intention to commit a crime when drinking intentionally, and the result is only caused by drunk driving negligence, it is considered as a negligent crime.
Thirdly, in the case of negligent drinking+intentional behavior and negligent drinking+negligent behavior, although the actor is in a state of limited capacity due to negligence, the results caused by drunk driving are still investigated in the usual way. If the perpetrator intentionally harms the result when he is drunk driving, it is deemed as intentional crime. On the other hand, if the actor is negligent in the harmful result, it is considered as a negligent crime.
2. Drunk drivers are in a state of incapacity. At this time, the actor has lost the ability to identify or control. In this state, there should be no subjective intention or negligence in the sense of criminal law, that is, the implementation of the act is out of touch with the responsibility. However, from the perspective of natural law, it is necessary to measure the punishment of intentional or negligent behavior, and the theory of free behavior in cause should be applied to demonstrate the subjective understanding when the behavior is trapped. Based on this, it should also be divided into three situations: intentional drinking (intentional behavior), intentional drinking (negligent behavior) and negligent drinking (negligent behavior). The former is the subjective will trapped in a state of incapacity, and the attitude of the actor towards the subsequent implementation of the behavior in brackets. Just like black and white keys, the white key is the original sound, and black keys is the accent. No single key can cover the range of chords. You need to press two keys at the same time to get the "punished" melody.
First, in the case of intentional drinking (intentional behavior), when the actor pursues a state of incompetence, has an understanding of driving behavior, and adopts a hopeful or laissez-faire attitude, it should be subjectively recognized as intentional. In the intentional mentality, the direct intentional attitude is more obvious, and the indirect intentional laissez-faire attitude needs comprehensive identification.
Secondly, in the case of intentional drinking (negligent behavior), such as A going to a restaurant to eat and deliberately getting drunk (because he was in a bad mood and wanted to get drunk), A didn't realize that he would drive home later, so he killed B on his way home. When setting the cause, A deliberately pursued the state of incompetence, but he did not intentionally kill people by driving, but should have foreseen the possible accident results when he was about to drive on the road, which was negligence. [14] In this case, its subjective fault should be comprehensively recognized as negligence. At the same time, the actor may be too confident about the resulting behavior. For example, an actor who has many years of "experience" in safe drunk driving "accidentally" has backfired. Based on its conviction that dangerous results can be avoided, it should also be considered as a fault subjectively. It should be noted that it is difficult to subjectively identify the resulting behavior as an indirect intentional or overconfident fault when the actor deliberately falls into a state of drunkenness and has no capacity at all during the implementation stage. For example, it also caused casualties. If the perpetrator is drunk for the first time and is presumed to be intentional between laissez-faire, it seems difficult to explain why the above-mentioned habitual drunk driver is not overconfident based on believing in his own ability. [15] Otherwise, it will evolve into the conclusion that subjective malignant minor faults depend on the number of deviant behaviors and accumulated experience, which is obviously contrary to logic. As a subjective aspect of pedestrians in traffic accident cases, overconfidence fault is universal and real. It is necessary to distinguish the situation by combining the specific reasons of the actor's drunkenness, the words and deeds when he carries out the harmful behavior, the reaction after the harmful behavior and the harmful result, the reaction after waking up and the reaction at the time of the incident. [ 16 ]
Third, in the case of negligent drinking (negligent behavior), the actor is negligent in the state of incapacity, so there is no subjective intention for the subsequent behavior of drunk driving, but there is negligence or overconfidence in the cause setting stage, so it should be subjectively recognized as negligence.
3. Drunk drivers develop from limited capacity to no capacity. The influence of alcohol on the ability of responsibility often has a gradual development process. A drunk driver may also have a change in alcohol consumption during driving. For example, when he starts driving, in order to limit his ability, he will develop into a state of incompetence after a certain period of time, which will eventually lead to harmful results. How should he determine his responsibility? Theoretical analysis holds that as long as the behavior has been implemented in the state of limited capacity, although the post-behavior in the state of limited capacity is subjectively cut off from the pre-behavior, but the related behavior pattern of the post-behavior is essentially the same as that of the pre-behavior, then it is not necessary to take the act of free cause as the intermediary, but directly identify the responsibility, [17] that is, the intention and negligence in the state of limited capacity dominate the subjective identification of the behavior in the stage of limited capacity and the stage of incapacity.
4. Drunk driving behavior from inability to limited ability. Drunk driving behavior is in a state of incapacity at the beginning of realizing behavior, and the situation that unexpected events turn into a state of limited capacity also exists in reality. If the actor is drunk driving in a state of incapability, and suddenly stimulates his nerves after the accident, making him drive away in a state of drunkenness, or even hitting several people, it can be handled separately according to two different behavior stages, that is, the former's behavior in a state of incapability is judged according to the situation mentioned in the above 2, while the latter is still in a state of limited capacity in drunkenness, so it can be directly determined whether it is intentional or negligent subjectively by considering his recovery of limited cognitive ability or control ability. (3) Based on this analysis, the Supreme People's Court proposed: "If a drunk driver continues to drive and collide after the accident, allowing harmful consequences to occur, causing heavy casualties, which constitutes a crime of endangering public safety by dangerous means, he should be convicted and punished in accordance with the provisions of Article 1 15 of the Criminal Law." [18] This kind of identification conforms to the subjective characteristics of such actors.
Third, improve the criminal legislative regulation of drunk driving.
It is no accident that the determination of traffic accident crime is controversial. From the above analysis, it can be seen that there is a dispute between "intentional faction" and "negligent faction" in the subjective determination of drunk driving behavior, and both parties lose. Drunk driving is only a description of social life, and the focus of theoretical analysis is how to identify the criminal responsibility of the actor when restricting the person with capacity and the person without capacity to enter the drunken state. Therefore, the crime of endangering public safety by other dangerous means cannot be recognized under the condition of not being drunk. As long as there is a deliberate attitude towards the implementation of the act before deliberately drinking alcohol to the point of incapability, or the actor is subjectively intentional under the state of limited capacity, it can be recognized. In other cases, it should be regarded as subjective traffic accident crime. But careful analysis still can't restrain the impulse of judicial practice to achieve utilitarian effect. Only by making up the legislative deficiency of the crime of causing traffic accidents in China's criminal laws and regulations can we finally achieve the purpose of standardizing and judging such crimes.
(a) Comments on relevant legislative proposals
1. Suggestions on legislative amendment of traffic accident crime. Some people think that the subjective mentality of traffic accident crime should include indirect intention. Under the condition of unclear will, it is difficult to determine whether the drunk driver's attitude towards harmful results is laissez-faire or refusal. Therefore, if it is knowingly committed, it should be judged as intentional, but after all, the actor is not pursuing the occurrence of harmful results, so it cannot be regarded as direct intention, but indirect intention. [19] This view will greatly change the structure of traffic accident crime, which is not only manifested as adding a subjective crime, but also not acceptable. The first is the inconvenience of deliberately choosing only indirect intention in the expression of terms. Secondly, the intentional attitude of the actor to the harmful result is easily confused with the attitude of the actor to the violation of traffic regulations itself. It is entirely possible for the actor to know that it is a violation of traffic laws, that is, many acts that know that it is a violation of traffic laws will seriously reduce or even substantially eliminate the mentality of identifying the subjective fault of the actor. Thirdly, it is more intuitive to regulate traffic accident cases only for "being busy outside" but not for "safety", that is, it is more intuitive to exclude other crimes according to the particularity of infringing legal interests, but whether the subjective aspects of drunk driving and other actors are indirect intention or negligence has not been solved in the crime of traffic accident.
On the other hand, some people think that special provisions can be added to the traffic accident crime of drunk driving alone, which can appropriately increase the sentencing range of traffic accident crime. [20] We think this is a more pertinent opinion. At present, the criminal responsibility of drunk driving in the criminal law is only determined as the crime of traffic accident according to the provisions of the fourth paragraph of General Provisions 18 and the second article of the relevant judicial interpretation of the Supreme Court. As long as the perpetrator did not escape, the crime of ordinary traffic accidents shall be punished with fixed-term imprisonment of not more than three years or criminal detention according to law, and those who cause heavy casualties shall only be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. It should be said that only taking "drunk driving" as "conviction plot" is incomplete in the evaluation system. First, in the first sentencing range, if "1 person dies or more than three people are seriously injured", it makes no difference whether it belongs to "drunk driving" in sentencing. Secondly, in the second sentencing range, that is, "more than 2 people died or more than 5 people were seriously injured", there is no difference in sentencing whether it belongs to "drunk driving". [2 1] Especially "in the past, as a negligent crime, more than 70% of traffic accidents were suspended by the court, and some courts reached more than 90%. Therefore, in the practice of _ _ _ _ _, people often have an illusion that they can get away with something, [22] which directly leads to the lack of deterrence of drunk driving punishment. Therefore, drunk driving can be clearly classified as the crime of causing traffic accidents, and low threshold should be matched with high sentencing. In ordinary traffic accidents, those who are identified as drunk driving will be given a penalty range of "particularly bad circumstances", and those who cause heavy casualties will be given the highest sentence.
2. Suggestions on establishing intermediate charges. Due to the danger of drunk driving, it is suggested that there is still a lack of a transitional charge between the crime of causing traffic accidents and the crime of endangering public safety by dangerous means. That is, in the setting of charges, it can be set as dangerous crime and behavioral crime. For example, as long as you drink alcohol, you can be punished as soon as the car starts. [23] This view put aside the subjective disputes of the above two crimes and began to solve the punishment problem of drunk driving itself. The problem is that similar acts are committed within the scope of administrative punishment. If they are all punished, there will be a tendency for criminal law to be omnipotent. The drunk driving behavior stipulated in Article 9 1 of the Road Traffic Safety Law also includes temporary suspension, revocation of motor vehicle driver's license, fine and detention. Retaining the punishment level of drunk driving is conducive to increasing the opportunity for the actor to repent and rehabilitate, and reducing the degree of "drug resistance" in society. If severe punishment is widely used, only heavier punishment can maintain the value of order in the future, and there is no possibility of relief.
(2) Our opinions
Taking two cases of drunken driving accidents announced by the Supreme Court on September 9, 2009 as samples, and taking the policy orientation of "severely punishing drunken driving crimes according to law", the traditional thinking orientation of treating chaos with severe punishment appeared in practice. In practice, some people suggested: "For the crime of drunk driving, there may be no need to argue whether to convict and sentence for the crime of causing traffic accidents or for the crime of endangering public safety-it has basically become common sense to punish the crime of drunk driving for the crime of endangering public safety in a dangerous way." [24] But in fact, if the drunken driving behavior is completely considered from the utilitarian criminal policy, and only the serious consequences are considered without clarifying and fully refining the punishability of the behavior that the perpetrator intentionally or negligently puts himself in a state of limited capacity or incapacity, it may shake the foundation of the principle of criminal responsibility and the principle of adaptability between crime and punishment. After all, the subjective severity of drunken people who have completely lost the ability to identify and control crimes is still very different from that of those who are not drunk.
Therefore, criminal law theory should redefine the boundary between indirect intention and overconfidence fault in a risky society, criminal policy should aim at the purpose and stability of the law, and criminal justice should start with the punishment in the stage of drunkenness and carefully identify the subjective fault of the actor. As far as the perfection of legislation is concerned, in order to avoid the difficulty of subjective identification of drunk driving behavior, we advocate that drunk driving, speeding and driving without a license can be regarded as aggravating circumstances of traffic accident crime on the basis of traffic accident crime, and these "road killers" can be given heavy sentences ranging from 10 to life imprisonment. Such legislation can achieve multiple purposes: first, it meets the needs of strengthening criminal law regulation in a risky society and the expectation of severely punishing dangerous driving behaviors such as drunk driving; The second is to dilute the huge difference between indirect intention and overconfident negligence in sentencing, and avoid the subjective entanglement and hesitation of the judiciary; The third is to unify the application of the law, purify the crime of endangering public safety by other dangerous methods, adhere to the principle of unity of subjective and objective, and make the application of crimes by law enforcement agencies less arbitrary. Only those who obviously show intentional drunk driving accidents are deemed as "the crime of endangering public safety by other dangerous methods"; The fourth is to reduce the public's doubts about the selective law enforcement of "different crimes in the same case" and "different punishments in the same case".