[Dangerous driving].(Article 133-1 of the Criminal Code).
Anyone who drives a motor vehicle on the road in any of the following circumstances shall be sentenced to short-term detention and shall also be fined:
1) Chasing and racing, where the circumstances are heinous;
2) Driving a motor vehicle while intoxicated;
C) engaged in school bus business or passenger transport, seriously exceeding the rated occupant capacity, or seriously exceeding the speed limit;
4) Transporting hazardous chemicals in violation of the regulations on the safety management of hazardous chemicals, endangering public safety.
Where the owner or manager of a motor vehicle bears direct responsibility for the conduct in items (3) or (4) of the preceding paragraph, punishment is to be given in accordance with the provisions of the preceding paragraph.
Where conduct in the preceding two paragraphs simultaneously constitutes other crimes, follow the provisions for the heavier punishment at trial and sentencing.
Explanatory Notes
"Dangerous driving" within the scope of the Criminal Law refers to the act of driving a motor vehicle after being drunk, the act of drag racing, the act of overloading and speeding the vehicle driving of a school bus and passenger transport, and the act of transporting hazardous chemicals without complying with the relevant regulations, as clearly stated in the Criminal Law Amendment VIII and the Criminal Law Amendment (IX).
According to Article 119 of the Road Traffic Safety Law, "road" refers to highways, urban roads and places where social motor vehicles are allowed to pass although they are within the jurisdiction of the unit, including squares, public parking lots and other places used for public traffic; "Motor vehicle" refers to a wheeled vehicle that is driven or towed by a power unit and driven on the road for passenger use or for transporting goods and carrying out special engineering operations. Therefore, for road sections and parking lots within the jurisdiction of government agencies, enterprises and institutions, factories and mines, campuses, residential quarters and other units, if the relevant units allow social motor vehicles to pass, they also belong to the scope of "roads"; Driving a motor vehicle in these places in violation of the provisions of Article 133-1 of the Criminal Law may also constitute the crime of dangerous driving.
It should be noted that, according to the provisions of paragraph 3 of Article 133-1, it is necessary to pay attention to distinguishing and handling the relationship between the crime of dangerous driving and the crime of causing traffic accidents (Article 133 of the Criminal Law) and the crime of endangering public safety by dangerous means (Article 115 of the Criminal Law).
1) If the perpetrator commits the conduct provided for in article 133-1, causing serious injury or death to others, or causing major losses to public or private property, and meets the constitutive elements of the crime of causing a traffic accident, it shall be convicted and punished as the crime of "causing a traffic accident"; At this time, the perpetrator's dangerous driving behavior is to be considered as a sentencing circumstance.
2) Since the crime of "endangering public safety by dangerous means" is a serious crime punishable by the death penalty, it should be strictly grasped when convicted and appropriately sentenced so that the punishment is proportionate.
1.The difference with the crime of traffic accident
2.The difference between the crime of endangering public safety by dangerous means
1. Judicial determination and prosecution standards for "chasing and racing" dangerous driving
Article 133-1 stipulates that "chasing and racing" refers to the pursuit of other vehicles in the same industry as the competitive target on the road (i.e., the so-called "drag racing"), including a "time trial" in which several vehicles chase each other at the same time, and also includes a "time trial" in which each vehicle races separately. Whether or not the vehicle participating in the chase exceeds the speed limit on the road does not affect the composition of this crime; However, where the circumstances are minor, this crime is not constituted.
(1) Judicial determination of "chasing and racing" type of dangerous driving
1.Chasing and racing refers to dangerous driving behaviors such as the actor driving at high speed or speeding on the road, chasing and overtaking other vehicles at will, merging frequently and suddenly, and driving in front of other vehicles at close range
According to Article 133-1 of the Criminal Law Amendment (VIII), "driving a motor vehicle on the road to chase and race, and the circumstances are heinous", constitutes the crime of dangerous driving. The key to determining the crime of chasing and racing dangerous driving is to accurately understand the meaning of "chasing and racing" and "heinous circumstances". "Chasing and racing" is a new concept created by the Criminal Law Amendment (VIII), which has never appeared in previous laws and regulations, and has not been clarified by relevant judicial interpretations. We believe that chasing and racing refers to dangerous driving behaviors such as high-speed and speeding on the road, chasing and overtaking other vehicles at will, merging frequently and suddenly, and driving in front of other vehicles at close range.
1) The subjective aspect of the crime of chasing and racing dangerous driving.
This type of crime is subjectively deliberate, i.e. the perpetrator is aware that the chase and racing act he has committed poses an abstract danger to traffic safety, and hopes or allows this dangerous state to occur. It is worth noting that the actor's hope or indulgence of the dangerous state does not mean that he also has the hope or indulgence of the harmful consequences caused by the dangerous driving behavior. The abstract danger recognized by the perpetrator is not always translated into actual harm as the law convents on the basis of the general nature of such acts and the experience of social life. Therefore, although the perpetrator deliberately created such a danger, he believed that the danger would not be converted into actual damage during his driving, and that the traffic accident could have been avoided by virtue of his driving ability. In the event of a traffic accident in a chasing race, the perpetrator is usually negligent about the consequences of the accident, and in most cases it is overconfident negligence. The subjective characteristics of this type of offence are essentially the same as those of the drunk driving offence.
2) The motive and purpose of chasing the race.
According to the specific circumstances in judicial practice, it can be roughly divided into three categories: First, the pursuit of excitement in a competitive manner. This mentality is more common in illegal racing activities where several people meet together to compete and take pride in winning, and there may be illegal purposes such as gambling behind it. However, it is not excluded that a person uses other vehicles as imaginary competition opponents and chases specific or unspecified vehicles on the road in search of thrills. The second is to conflict with others in the process of driving, and provoke the other party in the way of chasing and racing, venting dissatisfaction, commonly known as "driving a fighting car". It includes two people provoking each other, chasing each other, and blocking each other, as well as one person provoking others and chasing and blocking other people's vehicles that are driving normally. The third is to chase and race for other purposes. For example, if A drives fast and wants to get rid of B, who comes to collect debts, and B pursues closely behind and tries to overtake and stop A, B's behavior is a chase race.
3) The objective act of chasing and racing.
Chasing and racing behaviors are mostly manifested as high-speed and speeding driving with certain dangers. Low-speed driving is generally not a chase race, but there may be malicious slowdowns during the race, which may hinder the normal driving of others. The basic way of chasing and racing is to chase and overtake other vehicles at will, frequently merge in line, merge suddenly, or drive in close proximity before other vehicles, often accompanied by violations such as running red lights and not following traffic signs. The actor's driving route does not depend entirely on the demand for traffic, nor does he always choose the most convenient and safest driving route, but for the purpose of suppressing and overtaking the other party, and changes the route according to the other party's driving situation, forming control over the other party. These characteristics are especially evident in competitive and vindictive chase racing.
When understanding and grasping the objective manifestations of chasing and racing, attention should be paid to the following two issues: First, it is determined that the chasing and racing does not take speeding and other illegal circumstances as the constitutive elements. Chasing other vehicles by speeding, running red lights, or other illegal driving methods certainly constitutes chasing and racing, but although there is no violation of the rules, regardless of driving safety, frequently creating dangerous situations to chase and avoid other vehicles, it can also constitute chasing and racing. The second is to pursue excitement, show vehicle performance, driving skills on the road at high speed, arbitrarily overtake unspecified vehicle behavior, commonly known as "drag racing", although not aimed at a specific chase and racing object, but if it hinders the normal driving of others, causing danger to traffic safety, it can also constitute a chase race.
Excerpted from "Guidelines for Handling Criminal Cases of Dangerous Driving", edited by Gao Guijun, People's Court Press, 2014).
2.A typical form of chasing and racing is when two or more people chase each other, but unilateral chasing and racing of a specific or unspecified vehicle against one person can also be found to be the crime of dangerous driving
There are different opinions on this issue: one opinion is that two or more people must chase each other to constitute a chase race, and one person cannot constitute a chase race; Another view was that in addition to two or more persons chasing each other, one person could also constitute a chasing race. In our view, the typical form of chasing and racing is that two or more people chase each other, but unilateral chasing and racing against a specific or unspecified vehicle carried out by one person can also be recognized as the crime of dangerous driving. The second opinion is more realistic and reasonable. According to the number of participants in the chase race, the chase race can be roughly divided into three categories:
One isA chase carried out by one person. This behavior can be found in the aforementioned competitive, vindictive, and other types of chase racing. The perpetrator may always chase the same target vehicle, or may change the original target to chase other vehicles during the chase. Since the party being chased does not have the intention to chase and race with others, although it objectively appears to be in a state of chasing and racing with the perpetrator, it does not constitute the crime of dangerous driving.
The second isThe two of them carried out a chase race. This kind of behavior mainly exists in the rendezvous competition and vindictive chase racing. The two chased each other, squeezed, and blocked each other on the road because of their fighting spirit or competition, and both adopted a certain dangerous driving style against each other, which was obviously more damaging to the traffic order, and should be strictly controlled when convicted. In practice, there are also cases where two people set off from different places and chase and race with other vehicles on the road in order to get to their destination first.
The third isMulti-player chase. This kind of behavior mainly exists in organized competitive chasing and racing, such as multiple people driving modified cars to participate in illegal racing activities, which has the characteristics of a large number of participants, excessive vehicle performance, and great danger, and is the current key target of crackdown. Of course, in practice, there are also cases where multiple people drive ordinary vehicles in pursuit of excitement in the process of driving.
Excerpted from "Guidelines for Handling Criminal Cases of Dangerous Driving", edited by Gao Guijun, People's Court Press, 2014).
(2) Standards for filing and prosecuting cases for "chasing and racing" type dangerous driving
In any of the following circumstances, it is a "heinous circumstance" of chasing and racing, and a case shall be filed for prosecution, short-term detention, and a fine.
1.Chasing and racing after drinking or taking drugs;
2.chasing and racing without driving qualifications;
3.driving an illegally modified motor vehicle to chase and race;
4.chasing a race at a speed exceeding 50% of the speed limit;
5.chasing and racing on roads with high traffic flow and many pedestrians;
6.Multiple people or multiple chasing and racing;
7.Serious traffic jams or public panic caused by chasing and racing;
8.Using forged, altered or other motor vehicle license plates, or deliberately obscuring, defaced, or not installing motor vehicle license plates in accordance with regulations;
9.Those who have received administrative punishments for chasing and racing and then chase and race;
10.Other circumstances where the circumstances are aggravated.
The essential requirement criterion for the "aggravating circumstances" of the chase race is the presence of a hazard to public safety, that is, the definition of a dangerous offender. The basic criterion for judging aggravating circumstances is the degree of danger of the chasing and racing behavior. The definition of "aggravating circumstances" can include the following:
The first is the speed and mode of the vehicle: according to different road sections, road conditions, as well as the traffic flow on the road, the number of pedestrians, and the speed limit standard of the road as the basis for judgment.
The second is time, which includes not only the node of time, but also the length of time, the number of driving, etc., these factors will affect the danger of chasing and racing.
The third is the type of vehicle, driving different vehicles to drag racing, the harm it produces is also different.
Fourth, the subjective viciousness of chasing and racing is relatively large. If a person has been subject to administrative punishment or criminal prosecution for chasing a race, if multiple people have chased and raced many times, if he has been drunk or after taking drugs, or if he has not been qualified to drive a motor vehicle, it may also be considered that the circumstances are heinous.
Serious violations of the Road Traffic Safety Law, such as running red lights, forcibly overtaking, and resisting traffic law enforcement, shall also be comprehensively considered, and where they are sufficient to threaten the safety of others' lives or property, and are "heinous circumstances" in the crime of dangerous driving.
II. Judicial Determination and Prosecution Standards for "Drunk Driving" Dangerous Driving
According to the national mandatory standard "Threshold and Test of Blood and Breath Alcohol Content of Vehicle Drivers" (GB19522 -2010), drinking and driving refers to the driving behavior of vehicle drivers whose blood alcohol content is greater than or equal to 20mg 100ml and less than 80mg 100ml; Drunk driving refers to the driving behavior of the driver of a vehicle with a blood alcohol content greater than or equal to 80mg 100ml.
(1) Judicial determination of "drunk driving" type of dangerous driving
The determination of "road" and "motor vehicle" in drunk driving cases shall be governed by the provisions of the Road Traffic Safety Law on "road" and "motor vehicle".
About authorization of "road". "Roads" as used in Article 133-1 of the Criminal Law is to be implemented in accordance with the provisions of Article 119 (1) of the "Road Traffic Safety Law", that is, highways, urban roads, and places where social motor vehicles are allowed to pass although they are within the jurisdiction of the unit, including squares, public parking lots, and other places used for public passage, excluding passages and special parking lots that do not allow the free passage of motor vehicles in residential areas, school campuses, government agencies, enterprises, and institutions. Whether a road section within the jurisdiction of a government organ, an enterprise or public institution, a factory or mine, a campus, a residential area or other unit is identified as a "road" shall be judged on the basis of whether it is "public" and whether it "allows social motor vehicles to pass". Where only motor vehicles within the unit and specific visiting motor vehicles are allowed to pass, they may not be designated as "roads".
Where a person is drunk and moves a vehicle for a short distance in a residential area, public parking lot, or other place where the public passes, or where another person drives to a residential area, parking lot, or other place for a short distance to take over the driver of a parked motor vehicle, or where a person drives a short distance out of a residential area, public parking lot, or other place and then hands it over to another person to drive, it does not fall under Criminal Law article 133-1 of the Criminal Law's "driving a motor vehicle while intoxicated on the road".
Determination of "motor vehicle". Whether or not to identify a motor vehicle shall be carefully determined by distinguishing the circumstances.
According to Article 119 of the Road Traffic Safety Law, a "motor vehicle" refers to a wheeled vehicle that is driven or towed by a power unit and driven on the road for passenger use or for transporting goods and carrying out special engineering functions.
For over-standard electric bicycles that are driven by a power unit and have a design maximum speed, empty mass, and external dimensions that are close to or equivalent to motor vehicles, they should not be identified as "motor vehicles"; However, if an electric bicycle is modified and is identified as meeting the technical parameter standards of a motor vehicle, it shall be deemed to be a "motor vehicle".
(2) Standards for filing and prosecuting cases for "drunk driving" type of dangerous driving
About the criteria for filing a case. Where a motor vehicle is driven on the road and a breath alcohol content test shows that the blood alcohol content reaches 80 mg to 100 ml or more, the public security organs shall decide whether to file a case in accordance with the provisions of the Criminal Procedure Law and these Opinions. 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.
Public security organs shall promptly collect blood samples from criminal suspects and send them for testing, and have the staff of medical establishments or qualified inspection and appraisal establishments take blood samples in accordance with regulations, and promptly conduct blood alcohol content testing. The determination of whether a criminal suspect is intoxicated is primarily based on the blood alcohol content evaluation opinion. where the test results do not meet the standard for intoxication, the case is withdrawn.
Where a criminal suspect has a breath alcohol content test showing a blood alcohol content of 80 mg or more and 100 ml or more, and escapes or finds someone to replace him before the blood sample is taken, the breath alcohol content test results may be used as the basis for determining that he is intoxicated.
Where a criminal suspect intentionally consumes alcohol before a breath alcohol content test or a blood sample is taken during a lawful inspection by a public security organ or after a road traffic accident occurs, in order to avoid legal prosecution, the blood alcohol content evaluation opinion after the seizure may be used as the basis for determining that he is intoxicated.
III. Judicial Determination and Prosecution Standards for "Serious Overcrowding and Serious Speeding" Dangerous Driving
(1) Judicial determination of "serious overcrowding and serious speeding" type of dangerous driving
Article 133-1, paragraph 1 (3) of the "school bus" refers to the school or lawfully established road passenger transport business enterprises, urban public transport enterprises and specialized school bus operating units in accordance with the "School Bus Safety Management Regulations" promulgated by the school bus to obtain a license to transport students receiving compulsory education to and from school more than 7 passenger vehicles; "Passenger transport" refers to the road passenger transport business enterprises or urban public transport enterprises engaged in road travel business operations in accordance with the Road Transport Regulations to obtain a passenger transport business license. It should be noted that: (1) whether the relevant licenses have been obtained or the relevant business or driving qualifications have been obtained, and whether serious consequences have been caused, do not affect the establishment of this crime; This offence can be constituted as long as there is an actual engagement in the school bus business or passenger transportation, and there is a serious overcrowding or speeding. (2) School buses are available to students receiving compulsory education; If a school bus is diverted for other purposes to transport other persons, the provisions of this article shall not apply. (3) Vehicles used by colleges and universities or other vocational education institutions to transport teachers and students for teaching free of charge belong to the unit's own vehicles and do not belong to the scope of school buses as provided for in this article; The act of picking up and dropping off teachers and students is not passenger transportation. (4) There is no clear legal provision for the definition of serious overloading and speeding of school buses or buses. In judicial practice, the criterion for conviction is generally to overload or exceed the speed limit by more than 50%.
(2) Standards for filing and prosecuting cases for "serious overcrowding and serious speeding" type of dangerous driving
Standards for Filing Criminal Cases of Serious Overcrowding and Serious Speeding and Dangerous Driving (Trial)" (Public Transmission Law 2015 No. 708, Ministry of Public Security, November 20, 2015 Internal Fax and Telegram).
Article 1 Driving a motor vehicle on the road to engage in school bus business or highway passenger transport, tourist passenger transport, chartered passenger transport, has any of the following serious circumstances that exceed the rated occupants to carry passengers, may be filed for investigation:
1) Driving a large passenger vehicle that carries more than 50% of the rated occupants or 15 or more of the rated members;
2) Driving a medium-sized passenger vehicle that carries more than 80% of the rated occupants or more than 10 rated members;
3) Driving a small or micro passenger vehicle that carries more than 100% of the rated occupants or 7 or more of the rated members.
Article 2 Driving a motor vehicle on the road to engage in school bus business or highway passenger transport, tourist passenger transport, chartered passenger transport, any of the following serious circumstances exceeding the prescribed speed, may be filed for investigation:
1) Driving on expressways and urban expressways, exceeding the speed limit by more than 50% per hour, and driving at a speed of more than 90 kilometers per hour;
2) Driving on roads other than expressways and urban expressways, exceeding the prescribed speed by 100% or more, and driving at a speed of 60 kilometers per hour or more;
3) Exceeding the prescribed speed by more than 50% per hour and driving at a speed of more than 30 kilometers per hour when passing through railway crossings, sharp bends, narrow roads, narrow bridges, or driving on ice, snow, or muddy roads, or making U-turns, turning, or descending steep slopes, as well as in low-visibility meteorological conditions such as fog, rain, snow, dust, and hail;
4) Passing through accident-prone road sections such as dangerous roads near mountains, continuous downhill, continuous sharp bends, etc., exceeding the prescribed speed by more than 50% and driving at a speed of more than 30 kilometers per hour.
Article 3 Where the owner or manager of a motor vehicle compels or instructs the driver of a motor vehicle to carry out the acts listed in Articles 1 and 2 of these Standards, or has other circumstances for which he or she is directly responsible, a case may be filed for investigation.
4. Judicial identification and prosecution standards for dangerous driving of the type of "illegal transportation of hazardous chemicals".
(1) Judicial determination of dangerous driving of the type of "illegal transportation of hazardous chemicals".
The "hazardous chemicals" specified in item (4) of the first paragraph of Article 133-1 refer to highly toxic chemicals and other chemicals that are toxic, corrosive, combustion, combustion, etc., and are harmful to the human body, facilities and the environment (see the Regulations on the Safety Management of Hazardous Chemicals). Determined, published and adjusted in accordance with the criteria for the identification and classification of chemical hazard characteristics. The so-called illegal transportation of hazardous chemicals can be the act of engaging in road transportation of hazardous chemicals in violation of the safety management regulations of hazardous chemicals, or the transportation behavior of engaging in transportation without registration with the administrative department for industry and commerce, or the violation of traffic laws and regulations during the transportation of hazardous chemicals with relevant permits. The current "Regulations on the Safety Management of Hazardous Chemicals" has made more detailed provisions on the scope of hazardous chemicals and related definition conditions, considering that hazardous chemicals are mainly transported by land when they are transferred from production enterprises to the consumer market, the existing relevant regulations in terms of transportation management, respectively, stipulate the qualification standards for drivers, the qualification application conditions of transport enterprises, the safety standards for the use of transport vehicles, and the safety protection measures for hazardous chemicals. However, this does not prevent the illegal transportation of hazardous chemicals. To constitute the crime provided for in this subparagraph, the following conditions shall be met: (1) the perpetrator transports hazardous chemicals on the road; (2) Violation of safety management regulations for hazardous chemicals; (3) Endangering public safety, but not causing a traffic accident.
(2) Standards for filing and prosecuting cases for dangerous driving of "illegal transportation of hazardous chemicals".
1) In violation of the Regulations on the Safety Management of Hazardous Chemicals and other provisions, without obtaining a road transport permit for dangerous goods, engaging in the transport of dangerous goods on the road without authorization; (2) the use of invalid, forged, altered, cancelled and other invalid road transport of dangerous goods license engaged in the transport of dangerous goods on the road; (3) beyond the permitted matters, engaged in the transport of dangerous goods on the road; (4) Non-commercial road transport of dangerous goods units engaged in road transport of dangerous goods, belongs to the illegal transport of hazardous chemicals.
Only when the perpetrator not only violates the relevant management norms by transporting hazardous chemicals, but also objectively poses a close possibility of causing real harm to the life, health or safety of major public or private property of most or unspecified persons, it should be affirmed that the act endangers public safety and thus constitutes the crime of dangerous driving.
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