毒驾行为刑法规制研究

发布时间：2018-04-30 05:09

本文选题：毒驾行为 + 社会危害性　；参考：《湘潭大学》2017年硕士论文

【摘要】：随着机动车的不断普及,毒驾也已成为一种比较普遍的行为,这类行为极大地危害着公共安全,极易酿成特大的道路交通事故,然而按照现行的法律法规,行为人毒驾,仅仅在导致人员伤亡、财产损失以后,才会受到刑事处罚,否则只会按交通违法行为来处理,而不被视为犯罪。这样的制度安排有着极大的法律漏洞,即其无法对行为人毒驾但没有造成损害后果的抽象危险行为合理地进行处罚。为此,有必要考虑将毒驾行为明确地纳入到刑法的规制范围之中。主张毒驾行为入刑的必要性在于:毒驾行为具有严重的社会危害性、是司法实践的迫切需要,是社会公众的诉求,切合我国的刑事政策,且规制毒驾行为的现行相关法律存在着不足;毒驾行为入刑的可行性在于:毒驾行为入刑符合刑法的谦抑性、毒驾行为入刑有境外的相关立法例可供参考,毒驾行为入刑的国内外相关技术条件日臻完善。故而,将毒驾行为纳入到刑法的规制范围之中是有一定基础的。当然,对毒驾行为入刑问题的探讨不能仅仅停留在理论上,而应有具体的制度设计与其相呼应。建议在立法上将毒驾行为放置于醉驾行为之后作为危险驾驶罪中的一种情形。在法定刑的配置上应注意对人道性原则、罪刑均衡原则、明确性原则等的贯彻。对只有拘役一种主刑的危险驾驶罪应加入有期徒刑这又一主刑种,使对该罪形成一个更加严密的刑罚网。以便于更好地对毒驾犯罪人员罚当其罪,做到罪责刑相适应。在对毒驾行为入刑后具体条文的设计上不用增加“情节严重”这一限制性条件,但在处理该类案件时还应受到我国《刑法》第13条“但书”的限制。明确对毒驾行为应该采取“零容忍”的态度。分析毒驾行为入刑的构成要件,即犯罪客体为对公共交通安全的侵害;犯罪的客观方面表现为驾驶人在吸食毒品后在自身处于无责任能力或者限制责任能力的状态下仍然驾驶机动车的行为,且构成本罪不要求行为人造成实际的损害后果;年满16周岁精神正常的自然人即可成为本罪的主体;犯罪主观方面为故意。有该危险驾驶行为,同时符合交通肇事罪或者以危险方法危害公共安全罪的,应根据具体情况来决定对行为人判处交通肇事罪或者以危险方法危害公共安全罪。此外还要注意到操作中罪重与罪轻的考量以及与行政处罚的衔接等问题。
[Abstract]:With the increasing popularity of motor vehicles, drug driving has become a relatively common behavior, which greatly endangers public safety and can easily lead to serious road traffic accidents. However, according to the current laws and regulations, the perpetrators of drug driving, Only after causing casualties and property losses will they be criminally punished, otherwise they will only be dealt with as traffic violations and not as crimes. This kind of system arrangement has great legal loophole, that is, it can not punish the abstract dangerous behavior of the perpetrator but does not cause the harm consequence reasonably. Therefore, it is necessary to consider the explicit inclusion of drug driving behavior in the scope of criminal law. The necessity of advocating the crime of drug driving behavior lies in: drug driving behavior has serious social harmfulness, it is the urgent need of judicial practice, it is the appeal of the public, and it is in line with the criminal policy of our country. And there are some deficiencies in the current law of drug driving behavior; the feasibility of drug driving behavior into the criminal law is that: drug driving behavior in accordance with the modesty of the criminal law, drug driving behavior into the criminal law, there are overseas relevant legislation for reference, The domestic and foreign technical conditions of drug-driving crime are becoming more and more perfect. Therefore, there is a certain foundation to bring drug driving behavior into the scope of criminal law. Of course, the discussion of the crime of drug driving behavior can not only stay in theory, but should be accompanied by specific system design. It is suggested that drug driving should be placed after drunken driving as a case of dangerous driving. The principle of humanity, the principle of balance between crime and punishment, the principle of clarity should be paid attention to in the allocation of statutory punishment. To the crime of dangerous driving with only one kind of criminal detention, we should add the term of imprisonment, and form a more strict penalty net for this crime. In order to better punish the drug driving criminals as its crime, to adapt to the crime. There is no need to add the restrictive condition of "serious circumstances" in the design of the specific provisions after the crime of drug driving, but it should also be restricted by the proviso of Article 13 of the Criminal Law of our country when dealing with this kind of cases. We should adopt a zero tolerance attitude towards drug driving behavior. This paper analyzes the constitutive elements of the crime of drug driving, that is, the object of the crime is the violation of the public transportation safety; The objective aspect of the crime is that the driver still drives the motor vehicle after taking drugs in the condition that he has no ability of responsibility or limit the ability of liability, and the crime does not require the perpetrator to cause actual damage consequences; The natural person who has reached the age of 16 years can become the subject of the crime; the subjective aspect of the crime is intentional. If there is such dangerous driving behavior which is in line with the crime of causing traffic accident or endangering public safety by dangerous method, the crime of causing traffic accident or endangering public safety by dangerous method shall be decided according to the specific circumstances. In addition, attention should be paid to the consideration of the seriousness of crime and misdemeanor in operation and the connection with administrative punishment and so on.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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