In 2015, the Standing Committee of the National People's Congress passed the Ninth Amendment to the Criminal Law, which added the crime of dangerous driving. Scholars believe that driving a motor vehicle while intoxicated is an abstract dangerous offense, and judicial practice has made this type of crime the largest criminal case in the country. Drunk driving has caused heated discussions, and at the end of 2023, the judicial interpretation raised the threshold for criminalization. At present, some people ask, should the threshold for drunk driving be raised? Drunk driving cannot be abolished, but the relevant crimes of the sub-provisions of the Criminal Law should be interpreted in a standardized manner.
For example, Article 133-1, Paragraph 1 (1) of this Law stipulates that "driving a motor vehicle while intoxicated" is considered by most scholars to constitute the crime of dangerous driving, and at the same time believe that drunk driving is an abstract dangerous offense.
Generally speaking, systematic interpretation refers to the interpretation of the general provisions (general provisions) and basic principles of this law according to the above and below provisions of the law. However, the interpretation of criminal law crimes is different, for example, in theory, the specific name of the crime is a constitutive condition (element).
The establishment element and the constituent element are completely different concepts. "Establishment Element" refers to the constituent element that can be determined in accordance with the relevant provisions of this Law. The constituent elements refer to the cross-sectoral law and can only be determined in accordance with this law. The Criminal Code is the guarantee of various legal relationships, and accordingly, the constitutive elements of a crime are a unique concept in criminal law theory.
Explained from the provisions of the Criminal Law, there are no abstract dangerous offenders in China, and the reason is that Article 13 of this law has a "proviso" provision, and the main content of the proviso is to identify crimes according to different circumstances, in which the circumstances are obviously minor and are not considered to be crimes, even if they are crimes of endangerment. Accordingly, there are no specific dangerous offenders in the Penal Code.
The basis for the determination of the offence of dangerous driving is the Road Traffic Safety Law. Among them, the second paragraph of Article 91 of this Law stipulates that a person who drives a motor vehicle while intoxicated shall be restrained by the traffic management department of the public security organ until he sobers up, revoke the driver's license of the motor vehicle, and pursue criminal responsibility in accordance with the law.
In China, the crime of dangerous driving was criminalized in 2015, but in the West, the crime of dangerous driving has long been criminalized, for example, most states in the United States have been "criminalized" since the 20th century. The reason why this article uses double quotation marks for the criminal punishment of the United States is that the United States is unwritten law. "Majority" means that the current network data does not determine that all states in the United States have criminalized drunk driving. According to this, the criminalization of drunk driving in China was introduced from the West.
Since criminal law scholars believe that drunk driving is an abstract dangerous offense, China determines drunk driving mainly based on blood alcohol content, except for drunk driving such as emergency avoidance. Since the United States criminalizes drunk driving earlier than China, it is necessary to refer to the law enforcement process or procedures in the United States to determine drunk driving. According to online information, the law enforcement process specifically includes: parking inspection procedures, on-site sobriety tests, breath or blood (urine) tests, and detention of drunk drivers.
Among them, the prerequisite for a breath or blood (urine) test is that the drunk driver cannot pass the "on-site sobriety test". The precondition for the detention of a driver is that it is proven that the driver is actually impaired by the use of alcohol or drugs. According to this, even in the West, the crime of dangerous driving is not an abstract dangerous offense.
In unwritten law countries, where it is known that there is no abstract danger of committing a crime, one may ask, how do scholars in our country interpret the existence of such crimes in the Criminal Code? The general reasons are as follows: the provisions of the Penal Code are understood separately or separately. For example, the Ninth Amendment to the Criminal Law states as follows:
"Anyone who drives a motor vehicle on the road in any of the following circumstances shall be sentenced to short-term detention and a concurrent fine:Scholars have made the following understanding: "(1) If the circumstances are heinous, this item is not an abstract dangerous offense. "(2) Whoever drives a motor vehicle while intoxicated is an abstract dangerous offender under this subparagraph. The legal provisions use semicolons between items, and scholars need to interpret the full stops between items in the same way, that is, the "aggravating circumstances" in the first item is the common condition of each item. Accordingly, legal persons, especially judicial personnel, need to pay special attention to the items and semicolons of the sub-provisions of the Criminal Law, for example, "signing a contract with a fictitious unit or fraudulently using the name of another person" is a common element of the crime of contract fraud.1) Chasing and racing, where the circumstances are heinous;
2) Driving a motor vehicle while intoxicated;
As far as the question or discussion of "the threshold for the criminalization of drunk driving should be raised", since China's criminal law scholars believe that there are abstract dangerous criminals in the Criminal Law, and the majority of the public, even legislators and judicial personnel, believe that the scholars' views are correct, the current judicial interpretation has raised the threshold for criminalization, but whether there are abstract dangerous criminals needs to be discussed or paid attention to. **10,000 Fans Incentive Plan