Why did the "Criminal Verdict of Not Guilty of Drunk Driving" four years ago become popular all over the Internet?

来源 | 學人Scholar

In the past decade, the crime of "dangerous driving" has gradually become the most common crime in the mainland criminal law system. There has been controversy in society about the widespread situation that nearly 300,000 people are convicted of drunk driving every year and bear the collateral consequences of the crime (such as dismissal from public office, revocation of professional qualifications, termination of labor contracts, restrictions on children's employment, etc.).

Zhou Guangquan, a professor at Tsinghua University Law School, pointed out that by 2020, 25.9% of the total number of criminal cases for drunk driving had been concluded by courts across the country, making it the number one crime worthy of the name. While bearing criminal responsibility, the perpetrator is often subject to more long-lasting soft sanctions, such as unemployment and involvement of children. From the perspective of social governance, large-scale conviction and punishment of drunk driving is not the best way to solve the problem, but will lead to more social antagonism and greater governance costs. Therefore, he suggested that on the basis of maintaining the crime and maintaining a high-pressure posture on the circumstances of serious crimes, the threshold for conviction should be raised, "intoxication" should be replaced with "intoxication" as a conviction condition, and the collateral consequences other than the punishment should be reduced, and the administrative punishment should be increased at the same time, so as to further optimize the crime of dangerous driving.

However, Li Xiang, a professor at East China University of Political Science and Law, believes that the large number of crimes is not a reason to abolish or raise the threshold for criminalization. In the past ten years, the concept of "don't drink while driving, don't drive when drinking" has been deeply rooted in the hearts of the people, and refusing to drink and drive has become a social consensus. If drunk driving is "loosened" on the grounds that the circumstances are obviously minor, it will confuse the public who support "serious drunkenness", because it leaves a vague area that may be exploited by certain malicious people. He believes that the collateral consequence of "drunk driving punishment" is not that drunk driving is criminalized, but that drunk driving reflects that the perpetrator does not have the political literacy and moral character to engage in the corresponding profession, so it has become one of the criteria for consideration by employers. The criminalization of minor crimes is legitimate, and on the premise of adhering to the principles of protection of legal interests and proportionality, the criminal law can give full play to its function as a catch-all in social governance.

Recently, a criminal verdict of "acquitted of drunk driving" four years ago has been circulated on the Internet, causing widespread discussion. The person involved in drunk driving, not only did the ethanol content detected in the blood exceed the standard of 80, but also the aggravating circumstance of driving an unlicensed vehicle without a license. The defendant pleaded guilty and accepted punishment and had no objections to the facts of the crime, the charges, the evidence, and the sentencing recommendation submitted by the procuratorate. Some people believe that if it were other judges, there is a high probability that they will be found guilty, but the judge in this case dares to find not guilty, and in the criminal verdict, the facts are combined with the law, and the legal reason is with reason, demonstrating the judge's dedication and professionalism.

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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 XX, male, born on October 15, 1969, Han nationality, early Chinese, migrant worker, household registration in Hunan Province XX. 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 People's Procuratorate of Shunde District, Foshan City, charged the defendant He XX 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 XX 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 XX 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 XX is not qualified to drive motorcycles.

After identification, the defendant He XX 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; Defendant He XX's confession; 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 XX drove a motor vehicle while drunk on the road, and 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 he should be investigated for criminal responsibility for the crime of dangerous driving. Defendant He XX pleaded guilty and accepted punishment, and may be given a lenient disposition on the basis of article 15 of the "Criminal Procedure Law of the People's Republic of China." It is recommended that the defendant He XX be sentenced to one month's criminal detention and a fine. 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 XX had no objection to the facts of the crime, the charges, the evidence, and the sentencing recommendation made 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, but 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 had been revoked, the delivery of goods from the family workshop now depends entirely on hiring drivers, and the cost of doing business has increased.

After trial, it was ascertained that the facts of the public prosecution's accusation that the defendant He XX drove a motor vehicle while drunk were clear, and 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 XX 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 XX 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, the motor vehicle did not have a license plate, and driving while drunk. 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. 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. The third is the legal convergence. In dealing with illegal acts, it is necessary to distinguish between severity and severity, and treat them differently.

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. 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. 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; In order to solve this problem, the legislation of many countries focuses on the actual threat and actual consequences of drunk driving to traffic safety, and only when the consumption of alcohol causes the actual reduction of the driver's ability to control, it will be criminalized. If you have a traffic accident due to drunk driving, you will face severe penalties.

。 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 judged that

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.

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. In this way, with the improvement of people's living standards, motorcycles and automobiles are no longer scarce products, and it is precisely for this reason that the Ministry of Public Security issued the "12 Measures to Deepen the Reform of Public Security Traffic Management" and Optimize the Business Environment on October 17, 2020", which adjusted 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. The defendant in this case was driving a motorcycle, although the defendant in this case did not have the qualifications to drive a motorcycle, but claimed that he had learned to drive in his hometown in his twenties, and because his hometown was in 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. 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, the defendant in this case is accordingly

In terms of legal effect, 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. Because, according to the relevant guidelines of the Supreme People's Court for handling cases, otherwise it is a breakthrough in the law and a violation of the law. In terms of social effects,

The reason is that 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 treatment effect will not be much different. As for the political effect of the case, this court believes that under the current situation of the new crown pneumonia epidemic has not been lifted, and the "six stability" and "six guarantees" are still severe,

To sum up, this court finds that, in view of the limited judicial resources, after discussion and decision by the adjudication committee of this court, in accordance with 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:

Defendant He XX 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.

Relevant laws and regulations are attached:

Criminal Law of the People's Republic of China

Article 13 All acts that endanger state sovereignty, territorial integrity, and security, split the country, subvert the power of the people's democratic dictatorship, overthrow the socialist system, undermine social and economic order, infringe upon state-owned property or property collectively owned by the working masses, infringe upon property owned by private citizens, infringe upon citizens' personal rights, democratic rights, and other rights, and other acts that endanger society, and shall be punished by criminal punishment in accordance with law, are all crimes, but where the circumstances are obviously minor and the harm is not great, it is not considered a crime.

Criminal Procedure Law of the People's Republic of China

Article 16: In any of the following circumstances, criminal responsibility is not pursued, and where it has already been pursued, the case shall be withdrawn, or not prosecuted, or the trial terminated, or a not guilty:

(1) The circumstances are obviously minor and the harm is not great, and it is not considered a crime;

(2) The statute of limitations for prosecution has already expired;

(3) Exemption from criminal punishment by amnesty order;

(4) Crimes that were handled only after a complaint was made in accordance with the Criminal Law, and the complaint was not made or the complaint was withdrawn;

(5) The criminal suspect or defendant is deceased;

(6) Other laws provide for exemption from criminal responsibility.

Article 200: After the defendant's final statement, the chief judge announces an adjournment, and the collegial panel conducts deliberations, and makes the following judgments on the basis of the facts and evidence that have already been ascertained, and relevant legal provisions:

(1) Where the facts of the case are clear, the evidence is credible and sufficient, and the defendant is found guilty in accordance with law, a guilty verdict shall be made;

(2) Where the defendant is found not guilty in accordance with law, a not-guilty verdict shall be made;

(3) Where the evidence is insufficient and the defendant cannot be found guilty, a not-guilty verdict shall be rendered that the evidence is sufficient and the alleged crime cannot be established.