【作者】 程青；

【导师】 葛明珍；

【作者基本信息】 山东大学 ， 法学理论， 2013， 硕士

【摘要】 顺应现实需要,囊括醉酒驾驶行为的《刑法修正案(八)》已经生效,但围绕醉酒驾驶法律规制的争论并未也不应停止。纵观现有的研究成果,学者们大多是从社会现实、实务效果、刑法理念、刑法原则的角度论证自己的观点；本文拟从法经济学的视角进行分析,为论证醉酒驾驶入刑的合理性、完善醉酒驾驶法律条款、有效规制醉酒驾驶行为提供不同的视角和理论依据。本文主要分为导论、正文、结语三部分,其中正文分为四章：第一章是醉酒驾驶入刑与否的法经济学分析,如果运用侵权法规制醉酒驾驶行为,损害的分散性、公共产品的特性、起诉的成本收益三个方面的原因必然导致受害人缺乏起诉醉酒驾驶的行为人的激励。通过行政法规制醉酒驾驶行为,对于行为人而言其醉酒驾驶的收益大于行为成本,无法通过违法成本遏制醉酒驾驶行为。侵权法、行政法在规制醉酒驾驶行为方面的无奈、无力表明需要运用刑法规制醉酒驾驶行为。醉酒驾驶行为的严重社会危害性表明需要将醉酒驾驶予以事前规制。完美赔偿之不可能表明其他法律无法使醉酒驾驶的行为人完全内在化其醉酒驾驶行为的外部成本,运用刑法规制醉酒驾驶行为成为必然。所以我们应该把醉酒驾驶作为危险犯规制。第二章是醉酒驾驶一律入罪与否的法经济学分析,从社会成本收益的角度进行分析,醉酒驾驶一律入罪的社会成本巨大,远远大于醉酒驾驶入刑的社会成本,而醉酒驾驶一律入罪的社会收益并不比醉酒驾驶入刑的社会收益多很多。与醉酒驾驶入刑相比,醉酒驾驶一律入罪的边际成本大于边际收益,而最佳犯罪圈的评价标准是社会净收益,此时没有达到净收益的最大化,没有实现资源的有效配置。而且,并非所有醉酒驾驶行为都满足行为入罪的条件,我们应该在综合案件所有情节的基础上,对醉酒驾驶行为人对道路交通安全所造成的危险程度以及预期事故成本和预防成本的大小关系作出判断。第三章是“醉驾型”危险驾驶罪刑罚设置的法经济学分析,“醉驾型”危险驾驶罪的现行刑罚是拘役,并处罚金,显然不能完全实现罪责刑相适应。从法经济学的角度分析,与无差别酷刑相比,罪责刑相适应原则更有效率,更能实现刑罚的犯罪预防目的。成本约束下的刑罚确定性与严厉性的最优配置是等威慑水平曲线与等威慑支出曲线的切点。通过进行成本分析可知：罚金刑的最佳配置方式是高严厉性、低确定性。监禁刑的最佳配置方式是低严厉性、高确定性。考虑到醉酒驾驶的行为人多为风险偏好型,他们对刑罚确定性的变化更为敏感,而且提高罚金刑严厉程度的成本很低,将更多的资源投入到提高判刑率方面并不会对提高罚金刑的数额产生很大的影响。所以我们还是应将更多的司法资源投入到提高判刑率方而而非提高刑罚严厉程度方面。监禁刑与罚金刑各有利弊,“醉驾型”危险驾驶罪的刑罚既有罚金刑也有监禁刑,可以使社会福利的损失最小化。从成本收益的角度进行分析,对“醉驾型”危险驾驶罪科以“资格刑”是有效率的选择。第四章是醉酒驾驶法律规制途径研究,醉酒驾驶入刑会造成巨大的社会成本,我们可以通过加强业务培训,组建强而有力的专业办案队伍,提高执法能力,创新办案模式,构建前科消灭制度来降低醉酒驾驶刑法规制的成本。通过比较运用刑法规制犯罪的成本和收益与预防犯罪的成本和收益可知,应该把预防“醉驾型”危险驾驶作为法律规制的核心。要预防“醉驾型”危险驾驶行为的发生,就要改变醉酒驾驶对于行为人的成本收益状况,使其醉酒驾驶的个体成本大于醉洒驾驶的个体收益。我们可以通过降低醉酒驾驶行为的收益,增加醉酒驾驶行为的直接成本、机会成本,提高查处率,集中宣传“醉驾入刑”,构建醉酒驾驶累犯制度来预防“醉驾型”危险驾驶的发生。总体来说,本文从法经济学的角度分析醉酒驾驶入刑的必要性,醉酒驾驶一律入罪的弊端,醉酒驾驶行为入罪的具体条件,“醉驾型”危险驾驶罪刑罚设置存在的问题及完善建议与醉酒驾驶法律规制的途径。更多还原

【Abstract】 To conform to the practical needs, the8th criminal law amendment which includes criminal regulation of driving while intoxicated has gone into effect, but the arguments about legal regulation of driving while intoxicated have not stopped, and they should not stop. Looking at the existing research results, most scholars have demonstrated their viewpoints from the point of social reality, practical effect, idea of criminal law and principles of criminal law; this paper intends to analyse legal regulation of driving while intoxicated on the view of Law and Economics and provides a different perspective and theoretical basis for the rationality of criminal regulation of driving while intoxicated, perfecting the clause about driving while intoxicated in the law and the effective regulation of driving while intoxicated.This paper is composed of three parts, including introduction, main text and epilogue. And the main text comprises four chapters.The first chapter analyses criminal regulation of driving while intoxicated on the view of Law and Economics. If we regulate driving while intoxicated by tort law, victims will not have inspirit to press a charge against the perpetrators who drive while intoxicated because of the scattered damage, the properties of public product and the cost and benefit of civil action. If we regulate driving while intoxicated behavior by administrative law, for the perpetrators, the benefit of driving while intoxicated exceeds the cost of it, and we cannot suppress this kind of behavior by illegal cost. The fact that tort law and administrative law are helpless and powerless in regulating driving while intoxicated shows driving while intoxicated needs to be regulated by criminal law. The serious social harm of driving while intoxicated shows we should regulate this kind of behavior in advance. The impossible perfect compensation shows other law cannot make perpetrators who drive while intoxicated internalize the external cost of their behaviors completely. Criminal regulation of driving while intoxicated is inevitable. So we should regulate driving while intoxicated as potential damage offense by criminal law. The second chapter analyses criminalization of all driving while intoxicated on the view of Law and Economics. From the perspective of social cost-benefit analysis, the social cost of criminalization of all driving while intoxicated is huge. It exceeds the social cost of criminal regulation of driving while intoxicated very much. The social benefit of criminalization of all driving while intoxicated does not exceed the social benefit of criminal regulation of driving while intoxicated much. Compared with criminal regulation of driving while intoxicated, the marginal cost of criminalization of all driving while intoxicated exceeds the marginal benefit of it. The evaluation criterion of the optimum scale of crime is net social benefit. We cannot maximize the net benefit and achieve efficient allocation of resources at this time. Not all driving while intoxicated meets the requirements of criminalization. So we should estimate the level of the danger that the perpetrators who drive while intoxicated pose to road traffic safety and the relationship of size between the expected accident cost and prevention cost on the basis of comprehensive evaluation of all details of a case.The third chapter analyses the penalty of driving while intoxicated sin (one kind of dangerous driving sin) on the view of Law and Economics. The present penalty of driving while intoxicated sin (one kind of dangerous driving sin) is criminal detention and fine. It does not fully satisfy the principle of suiting penalty to crime and criminal responsibility obviously. In comparison with the principle of indiscriminate torture, the principle of suiting penalty to crime and criminal responsibility is more efficient and can achieve the purpose of crime-prevention of penalty better on the view of Law and Economics. The optimal allocation of the certainty and severity of penalty under the cost restrain is the point of tangency of the curve of equal deterrence and the curve of equal cost of deterrence. We can draw the conclusion that the optimal allocation of fine is high severity and low certainty and the optimal allocation of imprisonment is high certainty and low severity by cost analysis. Most perpetrators who drive while intoxicated are risk-takers. They are more sensitive to the certainty of penalty. The cost of the increase of fine is low. That we invest more resources to increase the certainty of penalty will not have much negative influence on the increase of the severity of fine. So we should invest more resources to increase not the severity of penalty but the certainty of penalty. Both imprisonment and fine have their virtues and their faults. That the penalty of driving while intoxicated sin (one kind of dangerous driving sin) is imprisonment and fine can minimize the losses of social welfare. From the perspective of cost-benefit analysis, that the qualification penalty is added to the penalty of driving while intoxicated sin (one kind of dangerous driving sin) is an efficient choice.The fourth chapter is about the study of approaches of legal regulation of driving while intoxicated. Criminal regulation of driving while intoxicated will result in huge social cost. We can reduce the cost of criminal regulation of driving while intoxicated by strengthening professional training, setting up a powerful and professional team, enhancing the ability of law enforcement, creating new mode of case-solving and establishing the system of abolition of criminal record. We can draw the conclusion that we should elevate the prevention of driving while intoxicated as the core by comparison the cost and benefit of criminal regulation of driving while intoxicated with the cost and benefit of the prevention of driving while intoxicated. To prevent driving while intoxicated, we should change the cost and benefit of driving while intoxicated for the perpetrators and guarantee that the cost of driving while intoxicated exceeds the benefit of it in the light of individual. To prevent driving while intoxicated, we can reduce the benefit of driving while intoxicated, increase the direct cost and opportunity cost of driving while intoxicated, increase the detection rate, publicize that criminal law regulates driving while intoxicated vigorously, and establish the recidivism system of driving while intoxicated.To sum up, this paper analyses the necessity of criminal regulation of driving while intoxicated, the drawbacks of the criminalization of all driving while intoxicated, the actual conditions of criminalization of driving while intoxicated, the problems in the present penalty of driving while intoxicated sin (one kind of dangerous driving sin), the suggestions to perfect the penalty, and the approaches of legal regulation of driving while intoxicated on the view of Law and Economics.更多还原