【作者】 李凯；

【导师】 冯亚东；

【作者基本信息】 西南财经大学 ， 人口学， 2013， 博士

【摘要】 交通犯罪的范畴不能简单归结为交通领域的犯罪,而应结合具体事案中行为人的主观面和客观行为中的各要素,并关照一般民众之预期予以划定。例如,行为人基于杀人的故意以机动车为犯罪工具的,仍应定故意杀人罪,此情形显非交通犯罪。具体而言,在中国刑法语境下,交通犯罪包括危险驾驶罪和交通肇事罪,由于在某些疑难案件中涉及对以危险方法危害公共安全罪的运用,故该罪名系交通犯罪的补充适用罪名。换言之,严格而论,该罪名并非属于交通犯罪之范畴。对交通犯罪的研究,一方面是基于刑事立法论的,另一方面是基于刑法解释论的。不论从哪方面来看,都不能脱离刑法教义学信条的限制。但是,必须要强调的是,即便立足于刑法教义学的阐释也不能脱离刑事政策学而“闭门造车”。换句话说,对交通犯罪的研究是立足于二者之结合的,当然,刑法教义学在其中是居于主导地位的。就刑事立法论而言,借鉴国外的先进经验是绕不开的话题,中国刑法的发展一方面要立足于自身之国情,另一方面,特别是在交通犯罪的刑法规制领域,国外是有先进经验可兹借鉴的。从英美法系和大陆法系主要国家对于交通犯罪的刑法规制状况来看,抛开琐碎的法律技术不论,各国在对交通犯罪的刑法规制上至少在一点上表现出了共同的一面：鉴于交通失范行为所具有的极其紧迫的危险性,刑法保护的早期化是不可避免的,这主要是因为在当今社会,社会生活的复杂化与犯罪的高科技化,使得许多犯罪行为一旦得逞,便会造成不可估量的侵害结果。所以,不能等待造成侵害结果后再处罚,而必须对某些法益进行提前保护,提前保护似乎成为一种更有效率的保护。此外,有别于国外普遍将大量交通失范行为予以犯罪化的情况不同,我国将大部分交通失范行为用行政法规予以应对,基于文化差异和对“罪”的认知不同,我国刑法并不需要照搬国外的做法。但是,值得注意的一点是,对于交通犯罪,我国刑法对罚金刑的运用还不尽如人意。最后,某些严重的与现有危险驾驶罪所规定的类似的行为没有被划入犯罪圈(例如毒驾行为)这在今后的立法过程中也是值得考虑的问题。如前所述,在中国刑法语境下,交通犯罪包括危险驾驶罪和交通肇事罪,由于可能产生处罚空档,某些交通犯罪不得不适用以危险方法危害公共安全罪。因此可以说,对于交通犯罪的刑法规制,我国刑法形成了以作为抽象危险犯的危险驾驶罪、作为实害犯的交通肇事罪,以及作为具体危险犯的以危险方法危害公共安全罪的立体惩遏体系。但是,严格而论,在规制交通犯罪的法规中,以危险方法危害公共安全罪是作为前二者的补充适用罪名而存在的。作为传统的交通犯罪罪名,交通肇事罪被划分为三个罪刑单位,三者呈递进适用之关系,这是我国刑法的一种法律拟制,从刑事政策的角度看,这一立法方式并不存在逻辑上的冲突。例如,对于逃逸行为,显然是在过失犯罪中处罚故意行为的情形,因此,可以存在共同犯罪的情形。对于危险驾驶(醉驾和飚车)行为,在当今风险社会下,实有予以刑事处罚的必要,故此,对其予以犯罪化是立法者因应民意的合理反应。从刑法教义学来看,危险驾驶罪是故意的抽象危险犯,对于醉酒型危险驾驶罪不存在以刑法总则第13条进行出罪的余地,从刑事一体化的角度考虑,上述结论也是妥当的。飚车型危险驾驶罪是必要的共同犯罪,由此方能与严重超速的行政违法行为相区别。最后,从罪名之间的关系看,特别是在排除行为人具有反社会动机的状况下醉驾的情形,即便造成了较严重的实害结果,也应考虑适用交通肇事罪,而非基于以刑定罪之观念重处以危险方法危害公共安全罪。由于危险驾驶罪是故意犯罪,且为典型的持续犯,所以,当先有危险驾驶行为后又造成实害结果的,根据刑法第133条之一第2款的规定,应择一重罪认定为交通肇事罪,这是因为危险驾驶罪与交通肇事罪在实质上可以被理解为“特殊的结果加重犯”。而在危险驾驶后又产生了具体危险的情形下,同样可以认为,行为人对抽象危险是持故意的态度,而对具体危险持过失的态度。根据刑法的规定,在没有造成实害的情况下,仅能构成危险驾驶罪,在造成实害的情况下,出于结果加重的考虑,构成过失以危险方法危害公共安全罪与交通肇事罪的想象竞合犯,应适用交通肇事罪的规定。上述结论是建立于民众之常情认识以及罪刑法定原则基础之上的。总之,在交通犯罪领域,以危险方法危害公共安全罪只能充当极其例外的补充适用角色,否则将会导致刑法适用的苛酷以及危险驾驶罪与交通肇事罪的虚设。更多还原

【Abstract】 Traffic offenses cannot be simply determined as crimes in traffic domain, but should be defined based on considerations of subjective and objective factors in specific cases, and the expectations of the masses. For instance, the doer in a deliberate killing by using a motor vehicle should be convicted offense of intentional killing rather than traffic offense. To be more specific, in Chinese context of criminal law, traffic offenses consist of crime of dangerous driving and crime of causing traffic casualties. Since applications of crime of endangering public security by using dangerous means has been involved in some complicated cases, it should be considered as a supplementary accusation of traffic offenses. In other words, strictly speaking, crime of endangering public security by using dangerous means should not be in the category of traffic offenses.Analyses on traffic offenses have to be carried out from perspectives of criminal legislation and interpretation of criminal law, and both perspectives are under the restriction of the creed of criminal doctrine. However, what has to be emphasized is that even explanations based on the creed of criminal doctrine should not be separated from criminal policy. In other words, analyses on traffic offenses are based on combinations of the two with the creed of criminal doctrine in leading position.It is inevitable to borrow from advanced experiences from abroad, as far as perspective of criminal legislation is concerned. Therefore, the development of Chinese criminal law is dependent on both national conditions and advanced experiences from abroad, particularly in the domain of traffic offenses. From criminal regulations of traffic offenses of major countries in both Anglo-American law system and Continental law system, despite of trivial legal techniques, all these countries have one thing in common on criminal regulations of traffic offenses:due to the extreme danger brought about by traffic violations, early employment of criminal law is inevitable. Nowadays, social life is so complicated, and crimes with applications of high technology have been causing immeasurable negative consequences to the society. Therefore, penalization should not come after infringements, and early protection of some legitimate rights and benefits should be carried out to make protection more effective. Besides, different from other countries which define most of the traffic violations as crimes, China deals with most of the traffic violations under administrative regulations. Because of cultural difference and different understandings of "Crime", our criminal law doesn’t have to copy what overseas countries do. However, what we should pay special attention to is that our applications of pecuniary penalty in traffic offenses is far from satisfactory. Finally, some severe actions which are similar to currently existing crime of dangerous driving, such as drug driving, have not been included in the domain of crime. This is also an issue worth considering in future legislation.In Chinese criminal context, traffic offenses consist of crime of dangerous driving and crime of causing traffic casualties. Due to some possible penalization gaps, some traffic offenses have to be considered as crime of endangering public security by using dangerous means. So, our criminal regulation for traffic offenses has established a three-dimensional penalty system, which consists of crime of dangerous driving as abstract potential damage offense, crime of causing traffic casualties as actual damage offense, and crime of endangering public security by using dangerous means as concrete potential damage offense. Strictly speaking, in regulating traffic offenses, the latter dimension exists as a supplementary to the former two. In traditional charges in traffic offenses, crime of causing traffic casualties has been divided into three crimes and punishment units applied in gradual process, which is the legal fiction of Chinese criminal law. Therefore, from the perspective of criminal policy, there is no conflict in criminal theory in this legislation. For instance, as for conduct of escaping, it is obvious that its deliberate action is punished within the domain of negligent crime, and therefore, joint crime can exist in conduct of escaping. As for dangerous driving (drunk driving and joyriding), it is necessary to give it criminal penalty under the risky environment in our society today. So, making it a crime is legislators’reasonable response to public will. From the perspective of criminal doctrine, dangerous driving is a deliberate abstract potential damage offense, and dangerous drunk driving cannot be decriminalized based on general provisions of criminal law article13. From the perspective of criminal integration, above conclusion is also appropriate. Dangerous joyriding is a necessary common crime, and this makes it different from severe speeding which is an administrative malfeasance. Finally, from the relationship between these charges, even though actual damage have been caused by dangerous joyriding, crime of causing traffic casualties is more applicable than crime of endangering public security by using dangerous means which is based on notion of crime fits the punishment. Because dangerous driving is a intentional offense and typically a continuous offense, when actual damage have been caused after dangerous driving, it should be recognized as crime of causing traffic casualties which is a heavier offense based on the second paragraph of part one in article133in criminal law of the PRC. This is also because dangerous driving and crime of causing traffic casualties can be virtually understood as "special aggregated consequential offense". In cases when concrete danger is caused after dangerous driving, it can also be considered that the doer holds a deliberate attitude toward abstract danger, and a negligent attitude toward concrete danger. Based on criminal law, in situations when no actual damage is caused, it only constitutes dangerous driving; in situations when actual damage is caused, in terms of aggravated results, it constitutes imaginative joiner of offense with both fault of the crime of endangering public security by using dangerous means and crime of causing traffic casualties, and should be recognized as crime of causing traffic casualties. All the above conclusions are based on common understanding of the masses as well as conviction and penalty according to law principle. In a word, in the domain of traffic offense, crime of endangering public security by using dangerous means plays only a supplementary role in extremely exceptional cases; otherwise, it will cause harsh applications of criminal law and make dangerous driving as well as crime of causing traffic casualties exist in names only.更多还原