Transferred from: Nanjing Criminal; The red font is marked on the official account of "Procuratorial Practice".
Shunde District People's Court, Foshan City, Guangdong Province
Criminal verdicts
(2020) Yue 0606 Xing Chu No. 2648
Public Prosecution Organ: The People's Procuratorate of Shunde District, Foshan City.
Defendant He Cimin, male, born on October 15, 1969, Han nationality, early Chinese, migrant worker, registered in Baidanqiu Group, Huangshi Village, Shuhui Town, Rucheng County, Hunan Province. Because of this case, he was released on bail pending trial by the Shunde District Public Security Bureau of Foshan City on June 3, 2020, and this court decided to continue his release on bail pending trial on November 9, 2020.
On November 4, 2020, the Shunde District People's Procuratorate of Foshan City charged the defendant He Cimin with the crime of dangerous driving in the indictment of Foshun Procuratorate Criminal Prosecution [2020] No. 303, and filed a public prosecution with this court on November 4, 2020. On November 23, 2020, this court changed to an ordinary procedure in accordance with the law, formed a collegial panel, and tried the case in open court. The Shunde District People's Procuratorate of Foshan City appointed procurator Chen Yongan to appear in court to support the prosecution, and the defendant He Cimin appeared in court to participate in the proceedings. The case is now closed.
The People's Procuratorate of Shunde District, Foshan City, alleged that at about 22:50 on May 28, 2020, the defendant He Cimin drove an ordinary two-wheeled motorcycle without a license plate to the intersection of Wendeng Road, Provincial Road 112, Chencun Town, Shunde District, Foshan City, after drinking, and was seized by the police on duty. After investigation, He Cimin was not qualified to drive a motorcycle.
After evaluation, the defendant He Cimin was found to have ethanol in his blood, with a content of 99.2mg/l00ml. The prosecution submitted the following evidence to prove it: the seizure; the confession of the defendant He Cimin; Driver information query result sheet; Explanatory letter on the inclusion of vehicle types in the National Motor Vehicle Product Catalogue; Technical inspection and appraisal report of road traffic violation vehicles; Proof of household registration; On-site photos and blood draw photos; Alcohol breath test sheet; Blood sample collection registration form and test report; administrative punishment decision; plea affidavit, etc.
Based on this, the public prosecution held that the defendant He Cimin was driving a motor vehicle while drunk on the road, and that his conduct violated Article 133-1, Paragraph 1 (2) of the Criminal Law of the People's Republic of China, and that the facts of the crime were clear, the evidence was credible and sufficient, and that he should be investigated for criminal responsibility for the crime of dangerous driving. Defendant He Cimin pleaded guilty and accepted punishment, and may be given a lenient disposition in accordance with the provisions of Article 15 of the "Criminal Procedure Law of the People's Republic of China." It is recommended that the defendant He Cimin be sentenced to one month's criminal detention and fined. In accordance with the provisions of Article 176 of the "Criminal Procedure Law of the People's Republic of China," this court is requested to be sentenced in accordance with law.
After the trial, the defendant He Cimin had no objection to the facts of the crime, the charges, the evidence, and the sentencing recommendation put forward by the public prosecution, and said: 1. He was investigated on the way home from the factory where he worked, and the total distance was about 3 kilometers; 2. He had learned to drive a motorcycle in his hometown in his twenties, and because his hometown was in a mountainous area, no one had the habit of getting a driver's license, so he did not take the test himself; 3. Because his driver's license for a car had been revoked, the delivery of goods from the family workshop was now entirely dependent on hiring drivers, and the cost of business had increased.
After trial, it was ascertained that the facts of the public prosecution's accusation that the defendant He Cimin was driving a motor vehicle under the influence of alcohol were clear, and that the aforementioned evidence provided by the public prosecution and cross-examined in court was confirmed, and this court affirmed it.
It was also ascertained that on April 14, 2009, the defendant He Cimin received a motor vehicle driver's license for the first time, and the permitted driving type was C1. On June 28, 2020, the defendant He Cimin was fined RMB 1,200 and had his motor vehicle driver's license revoked by the Shunde District Public Security Bureau of Foshan City for driving a vehicle that did not match the type of vehicle that was allowed to be driven, a motor vehicle without a license plate, and drunk driving. The above facts are confirmed by the driver's information inquiry result sheet and the administrative punishment decision submitted by the public prosecution organ and cross-examined and authenticated in court, and the evidence is credible and sufficient.
This court is of the opinion that the following factors must be fully considered in determining whether the defendant in this case is guilty or not:
The first is the concept of criminal law. The principle of modesty in criminal law requires that people should not be easily labeled as criminals, and only in this way can people be in awe of the law and not sympathize with criminals. At present, the crime of dangerous driving has replaced the crime of theft as the crime with the highest number of cases. In the past five years, the number of drunk driving cases accepted by Shunde courts each year accounted for about 40% of the total number of criminal cases that year, and more than 1,660 people were investigated for criminal responsibility for drunk driving every year. This cannot but make people reflect on whether the judiciary should appropriately limit the application of this crime. The second is judicial practice. The reason why the legislation includes drunk driving in the criminal law is that drunk driving poses a potential threat to the legal interests of public safety and is a dangerous offender. For the abstract danger of drunk driving, if there is evidence to prove it or based on common sense, there is no danger or basically no danger, there should be no conviction or no need to convict. The third is the legal convergence. In dealing with illegal acts, it is necessary to distinguish between severity and severity, and treat them differently. For minor violations, reminders, education, and admonishment are sufficient; For general violations, administrative penalties are sufficient; Only serious violations are criminally prosecuted. Criminal prosecution needs to be cautious, and it is not appropriate to squeeze the space for administrative punishment, and if it can be adjusted with administrative punishment, there is no need to initiate criminal investigation.
The danger of drunk driving is a danger created by law, and if the blood alcohol content reaches 80 mg/100 ml or more (only the number of alcohol content is stated below), the law is presumed to be drunk, and the ability to recognize and control is reduced, and there is a presumption of social danger. The presumption of the law is drunk, but it does not mean that it is really drunk; The legal presumption of a decline in the ability to recognize and control does not mean that there is a real decline, as individual alcohol tolerance varies greatly. However, for the sake of uniformity and efficiency in law enforcement, absolute justice can only be replaced by relative justice, that is, a uniform standard that does not take into account individual differences can be universally applied. The inconvenience of legislation does not mean that the judiciary should not take it into consideration. Real life is far more complicated than legislation, for example, pathological drunken patients, although they do not meet the legal standards for drunkenness, may be really drunk; Similarly, there are many people who have an alcohol content that exceeds the standard for drunk driving, but are not actually drunk, and their ability to recognize and control is not affected. In order to solve this problem, many countries adopt the individual observation method, that is, as long as the perpetrator does not have any abnormalities in driving, or can successfully pass the verbal response or can perform specific behaviors as required, it is not considered drunk (drunk) driving. The legislation of these countries focuses on the actual threat and actual consequences of drunk driving to traffic safety, and only criminalizes the actual reduction of the driver's ability to control due to the consumption of alcohol. If you have a traffic accident due to drunk driving, you will face severe penalties.
The potential danger of drunk driving depends on the degree of intoxication, the type of motor vehicle, the speed at which it is driven, the road section and time of day, etc. Although there is no specific distinction in the legislation, just a simple alcohol content and a unified "motor vehicle" provision, judicial interpretations or case-handling practices will treat them more or less differently. Because, in general, large cars are more dangerous than small cars, and small cars are more dangerous than motorcycles. The danger of cars is more aimed at public safety, while the danger of motorcycles is more for the drivers and passengers themselves, which can also be confirmed to a certain extent from the fact that several drunk driving motor vehicles that directly triggered the discussion of drunk driving in the country were cars rather than motorcycles. The defendant in this case had an alcohol content of 99.2, and was investigated on the way home from the work factory on a motorcycle, with a total distance of about three kilometers, the time was nearly late at night, and there were few pedestrians on the road, so it was difficult to determine that he had the intention of indulging public safety, and there was no evidence to show that the defendant's motorcycle driving was abnormal, let alone a traffic accident. From this, it can be concluded that the defendant did not reach a state of intoxication sufficient to affect his ability to drive, so the social danger of his conduct did not reach the level of requiring the use of criminal punishment to regulate and punish.
Considering that there are too many drunk driving cases, the alcohol content standards for drunk driving have been raised across the country, and the highest that can be found is 170 at present, that is, if there are no aggravating circumstances, the alcohol content will not be transferred to the court for criminal responsibility if the alcohol content is less than 170. Shunde has also made an upward adjustment, and if the alcohol content is more than 80 and less than 140, and there are no aggravating circumstances, it will not be transferred to the court. The defendant in this case had an alcohol content of 99.2, far lower than the standard of 140 for prosecution in Shunde, and was prosecuted because the public prosecution believed that there was an aggravating circumstance of driving without a license in this case. To put it simply, there is nothing wrong with this prosecution, but after careful analysis, we will come to such an embarrassing conclusion: with an alcohol content of 139.99, you can not be prosecuted if you drive a car on a crowded and busy road, while the alcohol content is just 80, and you will be held criminally responsible for driving a motorcycle without a license on a remote road, which obviously violates the simple concept of fairness and justice.
The driver's license is the management requirement of the traffic management department for the driver, which assesses the driver's driving ability, health status, mastery and compliance with traffic rules, etc. With a valid driver's license, you are qualified to drive and are presumed to be capable of driving. But in real life, there are many people who have driving qualifications, but have no car to drive for a long time after the examination, so that the actual driving ability is not qualified; Similarly, there are many people who are not qualified to drive, but who are skilled in driving, especially motorcycles. Based on the uniformity and convenience of administrative management, it is not improper to make such uniform provisions, but this does not preclude the examination of individual factors in judicial practice. With the improvement of people's living standards, motorcycles and automobiles are no longer scarce products, and driving motor vehicles has changed from the earliest vocational skills to the basic skills of individuals. It is precisely for this reason that on October 17, 2020, the Ministry of Public Security issued the "12 Measures to Deepen the Reform of Public Security Traffic Management" and Optimize the Business Environment", adjusting the upper age limit of the driver's license for small cars, small automatic transmission cars and mopeds from 70 years old to no restriction. The message of this measure is very clear that driving a car or motorcycle is not a difficult task. The defendant in this case drove an automatic transmission motorcycle, which was easy to drive, and could be mastered with a little practice, so it can be said that those who can ride a bicycle can generally drive. Although the defendant in this case did not have the qualifications to drive motorcycles, he claimed that he had learned to drive in his hometown when he was in his twenties, and because his hometown was a mountainous area, no one had the habit of obtaining a motorcycle driver's license, so he did not take the test. In 2009, the defendant obtained a C1 car driver's license and now has more than 10 years of experience in driving cars. The fact that the defendant has the qualifications to drive a car means that the defendant has passed the traffic rules test and is in good health, so the defendant in this case is not driving without a license in the typical sense, but only "does not match the type of driving permitted by the driver's license". This discrepancy is not the difficulty of driving with low difficulty, but the difficulty of driving by the difficult car C license and the low difficulty of the E license motorcycle. In view of this situation, the Supreme People's Court also clearly pointed out in the relevant case handling guidelines that in view of the fact that the phenomenon of driving motorcycles without a license is relatively common in some towns and rural areas, and in view of the fact that the danger of driving a motorcycle without a license is less than that of driving a car without a license, in order to avoid the scope of the crackdown, driving a motorcycle without a license may not be severely punished according to the specific circumstances of the case. Therefore, it is not only inconsistent with the Supreme People's Court's guidelines for handling cases but also unconvincing to identify the defendant's unlicensed driving as an aggravating circumstance and pursue his criminal responsibility as an aggravating circumstance.
In terms of legal effect, the "proviso" part of Article 13 of the Criminal Law of the People's Republic of China resolves the problem of the criminalization of acts that simply conform to the composition of the crime from a formal point of view, but are considered to be obviously minor and do not cause much harm based on the circumstances of the case, and the basis for the adjudication of this case lies in this. Not pursuing the guilt of the defendant in this case not only does not violate the legal provisions of the crime, but is also the proper meaning of the principle of the legality of crimes. This is because the principle of legality of crimes solves the limitation of criminalization, that is, to determine that a person's behavior constitutes a crime, there must be clear provisions in the criminal law. The criminal law does not and cannot stipulate acts that do not constitute crimes, so the only way to commit a crime is to rely on reason, which is the common sense and common sense of people based on the experience of social life. According to the relevant case-handling guidelines of the Supreme People's Court, the "proviso" of Article 13 of the Criminal Law is aimed at all crimes in the Criminal Law, and cannot be excluded from the crime of dangerous driving because there are no restrictive conditions such as serious circumstances, otherwise it will be a breakthrough in the law and a violation of the law. From a practical point of view, only by combining leniency and severity can the criminal law have a stronger deterrent effect. In terms of social effects, the contradiction between the principle of the law and the specificity of the facts of the case requires that judicial personnel cannot handle cases mechanically and numbly, and that the reasoning of judgment documents must not violate common sense, common sense, and common sense, otherwise they will not be able to move people's hearts and will not have good social effects. There is a limit to the punishment of the defendant, whether lenient or severe, that is, "leniency does not encourage crime, and severity does not make people sympathetic."
In this case, after the defendant's C1 car driver's license was revoked due to the inconsistency of the permitted driving type, the delivery of the family workshop relied on hiring a driver, and the business cost increased. The reason is that the decrease in drunk driving is not mainly due to the crime of dangerous driving, but the intensive card inspection by the public security traffic management department. In the past, drunk (drunk) driving was serious, more because the administrative law enforcement to investigate and deal with drunk (drunk) driving was not in place at that time. Even if the crime of dangerous driving is abolished, as long as the current inspection density is still strictly carried out and administrative penalties such as detention, fines, and revocation of driving qualifications are applied, the actual governance effect will not be much different. As for the political effect of the case, this court believes that the organic combination of legal effect and social effect is the best political effect, and under the current situation that the new crown pneumonia epidemic has not been lifted, and the "six stability" and "six guarantees" are still grim, the people's livelihood is not easy, and we should still have compassion and be as tolerant as possible for those vulnerable groups with limited education and few livelihood skills.
To sum up, this court believes that, in view of the limited judicial resources, the criminal law's crackdown on drunk driving should distinguish between automobiles and motorcycles, and focus on those drunk drivers who have a real danger, that is, drunk driving that causes their behavior to lose control or cause traffic accidents. After discussion and decision by the adjudication committee of this court, and in accordance with the provisions of article 13 of the Criminal Law of the People's Republic of China and article 16 (1) and article 200 (2) of the Criminal Procedure Law of the People's Republic of China, the judgment is as follows:
The defendant He Cimin is not guilty.
If they are not satisfied with this judgment, they may appeal through this court or directly to the Intermediate People's Court of Foshan City, Guangdong Province, within 10 days from the second day of receiving the judgment. Where an appeal is made in writing, one original and two copies of the appeal petition shall be submitted.
