【作者】 付尧；

【导师】 徐岱；

【作者基本信息】 吉林大学 ， 刑法学， 2009， 硕士

【摘要】 交通肇事罪是最常见多发的犯罪之一,危害整个社会秩序和公共安全。对本罪进行深入的研究,对保障人权和维护社会公共交通秩序以及公共安全,都有着积极和现实的意义。本文针对交通肇事罪理论和实践中的一些热点和难点问题进行了探讨,并对一些争议问题提出了自己的见解和看法。本文首先论述了交通肇事罪主体的认定,阐明了“非交通运输人员”的范围是指除交通运输人员以外的一切人员,主要讨论了几类特殊人员交通肇事罪的主体性问题。关于交通肇事逃逸行为的认定,本文探讨了交通肇事后逃逸和因逃逸致人死亡两个问题。从逃逸行为必须以构成基本犯罪为前提,对逃逸行为的主客观方面进行了分析,着重论述了争议颇多的“因逃逸致人死亡”的一系列问题,包括“因逃逸致人死亡”的对象范围、罪过形式以及认定与处置等几个方面。关于交通肇事罪共同犯罪的认定,笔者认为,共同过失犯罪是成立的,2000年最高人民法院《关于审理交通肇事刑事案件具体应用法律若干问题的解释》(以下简称《解释》)第7条以司法解释的形式确立了共同过失犯罪的可罚性依据,而《解释》第5条第2款违背了刑法理论上的一般原理,属于越权解释。最后,在借鉴国外有关交通安全犯罪立法实践的基础上,对交通肇事罪的立法完善从定罪标准、法定刑上提出了一些意见,并建议增设交通肇事逃逸罪。更多还原

【Abstract】 Traffic accident crime is a frequently-occurred common crime. It not only seriously affects the healthy development of the economy and people’s lives and property safety, but also to bring a lot of social factors of instability and to bring the physical and psychological hurt to the victims and their families. It disrupted traffic and social order seriously. This essay discusses some controversial issues about traffic accident crime in the theory and practice. Through analysis and argumentation of the crime’s theoretical and practical issues, the essay is hoped to be beneficial to the research of the crime.The essay is divided into four parts:The first part describes the verification of traffic accident crime’s subject. The Supreme People’s Court’s“interpretation”prescribes that the subject of the crime is“the person undertaking transportation or person not undertaking transportation.”The so-called the person undertaking transportation refers to all persons being engaged in the transport business and having direct relationship with transportation safety. These people become the criminal subject. In theory and in practice there are not large differences. How to determine the“person not undertaking transportation”has theoretical dispute. Based on the views of scholars and the various viewpoints, the essay concludes that person not undertaking transportation refers to other person expect for person undertaking transportation. And the essay discusses some special types of subject qualification in judicial practice. It emphasizes that the drivers of non- motor vehicle, foot passenger and the head of the office staff can also become subject of traffic accident crime.The second part of the essay focuses on the verification of escape after traffic accident. The section discusses the two issues. Firstly, the section describes the meaning, the nature, the precondition and the establishment about the act of escape after traffic accident. It explains that the nature of the act of escape after traffic accident is a kind of nonfeasance escaping obligations. The precondition of the escape act must have acts of antecedence that constitutes traffic accident crime. The traffic accident crime is a act that subjective aspect consist with the objective aspect, that is, that is, apart from the perpetrator having the objective external behavior of escape, he must know the happening of traffic accidents and his purpose of evading accountability and the legal punishment. Secondly, the essay discusses causing the death of people because of escape. The scholars have relatively large differences. The essay obtains some views on the basis of summarizing comments. The part is divided into three issues. The first issue discusses the scope of that the“people”should be victims in the original accident, instead of the second accident victims in the course of perpetrator escaping. The second issue discusses the subjective aspect of“causing death because of escape.”The essay believes that regardless of intentional form or negligence form, it does not affect significance of becoming traffic accident crime’s circs. Therefore, it is no significance that we study subjective aspect of causing death because of escaping. It not only hasn’t guiding significance for the judicial practice, also has judicial practice misunderstand. The third issue discussed the verification and disposition of“causing death because of escape”. It indicates that and that the aggravating circumstances of the crime, if applicable, should pay attention to the following aspects: First, the perpetrator has been a traffic accident crime; Second, the act of escaping must have occurred after traffic accident and the perpetrator has recognized subjectively injuries because of the accident occurred; Third, the victim’s death and the escape of the perpetrators must have causal relationship of criminal law; Fourth, the death of the victim must be caused by the behavior of escape, which did not interfere in other acts. In the course of the escaping, if the victim’s death has occurred because the perpetrator has other acts or his act includes other circumstances, we should not regard the instance as“causing death because of escape”.The third part of the essay describes co-crimes of traffic accident. Firstly, domestic and foreign scholars’arguments on the common fault are analyzed. It can be seen that fault crime can make common crime. Secondly, from analyzing the establishment of common fault of crime, it can be seen that the common negligence crime of traffic accident crime can be set up. The provision of“interpretation”of article 7 is in full compliance with the conditions of common negligence crime. It establishes the theory of common crime in China’s criminal law. Finally, the“interpretation”of paragraph 2 of article 5 is analyzed. It pointed out that the“head of the office staff, motor vehicles owners, contractors or ride”in the accident occurred instigate others to escape, resulting in the death of the victim, which should be penalized with“the crime of complicity”. The provisions of the Penal Code break the traditional theory and violate the Penal Code legislative provisions.The fourth part of the essay points out legislative proposals. There are three levels. First, standardize the conviction standard.“Interpretation”of paragraph 1, item 3 of article 2, provides that amounts of incapable compensation are conviction standard. It not only revised the elements of a criminal offence, but to breach the principle of equality before the law. So the interpretation is illegal. It should be abolished. Second, raise the crime of legal sentence. Traffic Accidents are frequent, the rapid development of transportation is one reason, but the most important thing is the human factor. As the crime of legal sentence too low, the driver’s safety vigilance is generally low and there are more deliberate violations. Therefore, increase the crime of legal sentence will enhance the driver’s responsibility. Reduce unnecessary human incidents is good. Therefore, in this essay, we should change traffic crime’s sentence from the current three years to five years, and abolish detention. Third, make“escape after traffic accident”become an independent crime First of all, the section describes the“interpretation”is lack of science on“escape after traffic accident”.“Escape after traffic accident”in essence has been completely beyond the nature of basic traffic accident guilty. It can not be treated aggravated crime of traffic accident guilty. It should be other crimes. Secondly, that escape acts have serious social harm, independent contents and independent mentality of acts. Therefore, escape after traffic accident has significance of independence acts in criminal law. It should be independent crime. Again, the section introduces conviction ways of escape after traffic accident in foreign country and in China’s researches. It comments on various viewpoints. Finally, traffic escape crime should be added. And the criminal offence and sentence standards should be constructed. I hope they can help to solve some questions of criminal legislation, conflict and contradiction in judicial practice on the acts of escape after traffic accident and the common crime of traffic accident crime.更多还原