"Drunken driving" replaces theft to become the first criminal prosecution
Treating Drunk Driving with Integrated Crime Prevention Concept
□ Reporter Zhu Ningning
Recently, the Institute of Law of the Chinese Academy of Social Sciences and the Social Science Literature Publishing House jointly released the "Blue Book of Rule of Law" in 2020 to comprehensively analyze the crime situation in 2019. It is worth noting that the Blue Book points out that the dangerous driving crime with drunk driving as the main body has become the most criminal case tried in the first half of this year, surpassing the crime of theft for the first time. And this year's work report of the Supreme People's Procuratorate also pointed out that "drunk driving" replaced theft as the first criminal prosecution crime.
Obviously, this phenomenon shows that on the one hand, the relevant law enforcement is being strengthened, on the other hand, it also shows that the dangerous driving behavior that endangers public safety continues to be high and the base is large, and it is necessary to increase the comprehensive governance.
"Crime control is a systematic project, and criminal law is only one of them, and it is the most costly means. On the basis of continuous improvement of technical means, the incidence of dangerous driving crimes has been effectively reduced to make criminal law the last resort. It needs serious consideration." Zhou Guangquan, a deputy to the National People’s Congress, deputy director of the Constitution and Law Committee of the National People’s Congress, and a professor at the School of Law of Tsinghua University, believes that the means of controlling crimes cannot all rest on the criminal law. In the process of advancing the modernization of national governance, it is necessary to pursue Criminal, economic and social integration of crime prevention concepts.
Drunk driving can have serious legal consequences
On May 1, 2011, the Criminal Law Amendment (8) came into effect. It is stipulated that when the alcohol content in the blood of the driver of the vehicle is greater than or equal to 80 mg/100 ml, it is determined to be drunk driving, and drunk driving will be prosecuted for criminal responsibility as a dangerous driving crime. It can be said that the official imprisonment of drunk driving effectively curbed the occurrence of vicious traffic accidents involving drunk driving.
"For the perpetrator, the legal consequences of drunk driving are very serious. Not only can the perpetrator be unemployed and jailed, but a few vicious traffic accidents caused by drunk driving will also cause the victim to suffer significant personal and property losses." Zhou Guangquan analysis pointed out that drunk driving Will be included in personal credit records, loans, consumption, etc. are restricted; in the event of a major traffic accident, the actor can not only get claims from the insurance company, but also have his driver’s license revoked, and must not re-acquire the driver’s license; the most serious consequence is that Those who commit crimes shall be investigated for criminal responsibility according to law. In addition, while perpetrating criminal responsibility, the perpetrator also needs to be responsible for a series of subsequent consequences, including: specific practice qualifications (lawyers, physicians, etc.) are revoked, individuals cannot apply for national civil servants, and military or military schools cannot pass the political review, When the employed unit terminates the labor contract, the public official shall be expelled from the party and expelled from the public office.
Despite the serious legal consequences of drunk driving, the incidence of drunk driving and drunk driving in my country remains high. According to Zhou Guangquan, nearly two million cases of drunk driving and drunk driving are investigated and dealt with each year nationwide. Among them, there are more than 300,000 cases of "drunk driving" that constitute crimes, accounting for more than 20% of the total number of criminal cases in my country.
"From a national and social point of view, it is not a good thing to produce more than 300,000 criminals every year because of dangerous driving such as drunk driving." Zhou Guangquan said that most criminals who constitute dangerous driving crimes due to drunk driving are sentenced to actual detention in prison, but During the execution of short-term free punishment, there is a high probability of cross-infection of criminals, which increases the risk of re-criminals. At the same time, the more criminals, the more opposites in society, the greater the difficulty of social governance, and the greater the price the entire society pays for this.
It is recommended to force the installation of car alcohol detection device
"From the perspective of reducing the incidence of crime and promoting social governance innovation, blindly investigating, convicting and punishing drunk driving is not the best way to solve the problem." Zhou Guangquan believes that thinking about crime control strategies from the perspective of technical means may have Help to solve difficult problems.
To this end, Zhou Guangquan suggested that the Supreme People’s Court, together with the Ministry of Industry and Information Technology, the Ministry of Science and Technology, the China Banking Regulatory Commission, and other departments, conduct research on some issues and organize efforts to develop vehicle-mounted (automobile-specific) alcohol detection devices, especially for new cars, which should all be installed compulsorily. The driver must pass this device and pass the alcohol test before starting the car. The installation cost of the equipment can be shared by manufacturers, distributors, and customers, and part of the cost can be borne by insurance companies. The government can give car manufacturers appropriate subsidies in the early stages of technology application.
He also pointed out that if it is difficult to install alcohol detection devices for all vehicles compulsorily, it is possible to stipulate that the private car must be mandatory for the private car of the person who is administratively punished for driving under the influence of alcohol and must be forced to install alcohol detection equipment to prevent its conversion from illegal persons to Drunk driving criminal.
"In short, actively promoting the development and application of on-board alcohol detection devices is of great significance for preventing crime through the technological revolution." Zhou Guangquan said.
Carry out the principle of adaptation of crime and punishment stipulated in the criminal law
When it comes to governing drunk driving, Zhou Guangquan believes that there is another issue that deserves attention, and that is how to accurately apply the crime of dangerous driving.
"According to the provisions of Article 133 of the Chinese Criminal Law, the maximum penalty for the crime of dangerous driving is detention, which is a misdemeanor. However, in the current judicial practice, the suspended sentence is basically not applicable to the crime of dangerous driving, and it is not exempt from criminal punishment. Most criminals are sentenced to real sentences." In Zhou Guangquan's view, this approach is incompatible with the nature of misdemeanor and the leniency system for pleading guilty and punishment. "From the point of view of the Criminal Procedure Law, no matter whether it is a felony or a misdemeanor, as long as the defendant pleads guilty and pleads guilty, he can be leniently punished. , To apply it to misdemeanor, should reflect the effect of this system."
Zhou Guangquan used a specific example of the crime of traffic accident similar to the crime of dangerous driving. As a result, the first statutory sentence of the crime of traffic accident is up to 3 years’ imprisonment; while the crime of dangerous driving is an abstract dangerous crime, the statutory maximum penalty is 6 months in prison. In this way, the crime of dangerous driving is a lighter crime than the crime of traffic accident. However, in judicial practice, a large number of traffic offenders have been sentenced to probation, and there are many cases exempted from criminal punishment. Dangerous driving crimes are basically sentenced to real sentences, and the punishment is obviously uneven.
Zhou Guangquan suggested that the Supreme People’s Court and the Supreme People’s Procuratorate study relevant rules of adjudication to ensure that the leniency effect can be “honoured” after pleading guilty to misdemeanor, to prevent the offender from feeling “favored” after pleading guilty, and to implement the criminal punishment prescribed in the Criminal Law Adaptation principles. Therefore, the following should be considered when dealing with drunk driving cases: The leniency plea guilty punishment system must be run through the entire process of criminal litigation and applicable to all stages of investigation, prosecution, and trial. A defendant who pleads guilty to guilty for drunk driving may not be detained or prosecuted, and may be sentenced to probation or be exempt from criminal punishment. If there is no special circumstances for drunk driving, if the alcohol content in each 100 ml of blood is less than 200 mg, if the criminal suspect has a good attitude of guilty, shows repentance, and is willing to confess punishment, in principle, a suspended sentence or exemption from punishment can be applied. .
However, Zhou Guangquan also emphasized that a “negative list” of judicial discretions that must be prosecuted without probation and parole should be formulated to ensure that criminals are not indulged. For example, those who have been subject to administrative punishment or criminal prosecution for driving under the influence of alcohol while driving while drunk. As another example, drunk driving forcibly enters a special prosperous section of the city (such as a pedestrian street, etc.) or forcibly enters a pedestrian overpass, a drunk driving escapes after a traffic accident, a drunk chases after a race, etc.