Persist in handling cases strictly in accordance with the law and comprehensively tackling drunk driving
Promote the modernization of the misdemeanor governance system
Professor and doctoral supervisor of Peking University Law School
Liang Genlin, vice president of the Chinese Society of Criminal Law
Since the Criminal Law Amendment (VIII) in 2011 stipulated "driving a motor vehicle while intoxicated on the road" as a dangerous driving crime, the practice of criminalizing drunk driving has achieved good legal results. With the advancement of China's social development and the process of rule of law, the people's expectations for good law and good governance and individual justice have been continuously raised. In order to cope with this new situation and changes, the Supreme People's Court and the Supreme People's Court and the Ministry jointly issued the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated" (hereinafter referred to as the "Opinions"). The "Opinions" further standardize and unify the law enforcement and judicial standards for punishing drunk driving violations and crimes in accordance with the law, and establish a mechanism for the management of drunk driving cases, which provides a template for reference for the comprehensive management of the increasing number of misdemeanor cases, and will certainly play an important leading role in promoting the modernization of misdemeanor governance in China.
I. Persist in the legal provisions for crimes commensurate with the punishment for crimes, and lawfully identify and punish drunk driving crimes. In accordance with the requirements of Article 3 of the Criminal Law and the provisions of Article 13 of the Criminal Law, the Opinions comprehensively consider the blood alcohol content and the circumstances of drunk driving, and strictly define the constituent elements such as "drunkenness", "road" and "motor vehicle" for the crime of drunk dangerous driving in Article 133-1 of the Criminal Law, and standardize and unify the legal application standards for drunk driving to constitute the crime of dangerous driving. According to Article 4 of the Opinions, driving a motor vehicle on the road and the breath alcohol content test shows that the blood alcohol content reaches 80 mg and 100 ml or more, it is drunk driving, and the public security organ shall decide whether to file a case. Where the circumstances are obviously minor and the harm is not great, and it is not considered a crime, the case is not to be filed. Whether drunk driving is obviously minor and does not cause much harm shall be reviewed and judged in accordance with Article 10 and Article 12, paragraph 1 on the basis of determining that it has the constituent elements of "intoxication", "road" and "motor vehicle" in accordance with the Opinions. Where the five circumstances provided for in paragraph 1 of article 12 are met, and there are no aggravating circumstances provided for in article 10, it may be found that the circumstances of drunk driving are obviously minor and the harm is not great, and it is not considered a crime. Where there are any of the five circumstances provided for in paragraph 1 of article 12, and at the same time one of the aggravating circumstances provided for in article 10, it shall be found to be the crime of dangerous driving. This idea of combining the provisions of the General Provisions of the Criminal Law with the specific constituent elements of the Specific Provisions of the Criminal Law to jointly determine the crime of drunk driving is in line with the principle of legality of crimes and the spirit of determining crimes in accordance with law.
II. Persist in the criminal policy of blending leniency and severity, taking into account facts, legal principles, and reasonableness, to achieve the unity of the three effects. Blending leniency with severity is China's basic criminal policy, and the "Opinions" consistently implement this policy requirement in all aspects of the handling of drunk driving cases, so that the leniency is lenient, the severity is severe, and the punishment is appropriate. Article 10 of the Opinions, on the basis of summarizing the practical experience of law enforcement and judicial adjudication and refining the rules of judicial adjudication, lists in detail 15 types of drunk driving situations that are common and frequent and severely punished. This provision applies to whether a case is filed, whether to prosecute, whether to convict, whether to exempt from sentence, whether to pronounce a suspended sentence, and how to determine the sentence on a case-by-case basis. Article 14 further sets out 10 aggravating circumstances for drunk driving that are generally not subject to probation. Article 16 requires that if drunk driving constitutes another crime at the same time, and an imaginary joint offense is established, it shall be convicted in accordance with the provisions of the heavier punishment and criminal responsibility shall be strictly investigated in accordance with the law. Where driving a motor vehicle while intoxicated, using violence or threats to obstruct a lawful inspection by a public security organ, and it also constitutes a crime such as obstructing public affairs or assaulting a police officer, the punishment for multiple crimes is to be combined in accordance with law. These provisions reflect the requirements of the criminal policy that drunk driving cases should be handled harshly and punishment should be punished.
Article 11 of the Opinions lists five types of drunk driving situations that should be dealt with leniently, and Articles 12, 13 and 14 successively stipulate the conditions for drunk driving to be significantly minor, emergency avoidance without conviction, non-prosecution for minor drunk driving, and probation for drunk driving if the circumstances are relatively minor. For example, it is clarified that drunk driving in emergencies such as emergency medical evacuation can be punished by emergency avoidance, and it may not be considered a crime if the vehicle is moved over a short distance or handed over the vehicle without aggravating circumstances. These provisions take into account the facts, legal principles and reasonableness, embody the criminal policy requirements of leniency in handling drunk driving cases, and highlight the modern criminal justice concept of criminalization in accordance with the law and reasonable guilt, which helps to overcome mechanical law enforcement and dogmatic judicial thinking, narrow the scope of convictions, eliminate criminal punishments, reduce social antagonism, promote social harmony and stability, and realize the organic unity of political, legal and social effects.
III. Persist in combining punishment with prevention, placing equal emphasis on crime and governance, and promoting the modernization of the governance of misdemeanors. As one of the safest countries in the world today, China's social order is generally good, and at the same time, the crime situation and criminal structure are undergoing major changes, with the number and proportion of serious crime cases with natural offenders as the main body declining, and the number and proportion of misdemeanor cases with statutory offenders as the main body increasing significantly. How to establish and improve the misdemeanor governance mechanism and realize the modernization of the misdemeanor governance system and governance methods in view of the illegal nature, degree of harm, occurrence law and governance needs of misdemeanor cases is a new challenge facing China at present and in the future. In response to the challenges of this era, the "Opinions" put forward the overall requirements for the combination of punishment and prevention, and established corresponding mechanisms for the connection of executions, the management of cases and comprehensive management, and the governance at the source. Article 19 of the "Opinions" requires that if a criminal suspect or defendant decides not to prosecute or waive criminal punishment, non-criminal punishment measures may be applied in accordance with the provisions of article 37 of the Criminal Law. Article 20 uses the interpretation rule of "taking the light to the heavy" to determine that "drunk driving is a serious act of driving a motor vehicle after drinking". Regardless of whether drunk driving constitutes a crime, the public security organ shall revoke the perpetrator's motor vehicle driver's license in accordance with the law. For drunk driving offenders who have not been investigated for criminal responsibility, administrative penalties such as fines and administrative detention shall also be imposed in accordance with the provisions of the Road Traffic Law on driving a motor vehicle after drinking. This provision clarifies the principle that all drunk driving must be punished, confirms the legal basis for administrative punishment for drunk driving violations that have not been investigated for criminal responsibility, and realizes the connection between execution and execution in handling drunk driving cases.
On the basis of adhering to the principle of evidence adjudication, following legal procedures, protecting the rights of parties in accordance with the law, and ensuring the quality of case handling, the Opinions have constructed a mechanism for handling drunk driving cases, clarified the requirements for evidence collection in drunk driving cases, and made specific arrangements for the conditions for applying the mechanism of reasoning, litigation time limits, compulsory measures, social investigation and assessment, document production, circulation and service of case files and legal documents, etc., opening up a fast channel for handling drunk driving cases, which will greatly promote the quality and efficiency of the whole process of handling drunk driving cases. The comprehensive management measures of the "Opinions" on popularizing the law, coordinating governance, and education and transformation are conducive to overcoming the inertial thinking of "handling cases on a case-by-case basis", and truly embody the requirements of modernizing the management of misdemeanors by combining punishment with prevention, and paying equal attention to punishment and governance.