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Punishment and governance of intoxicated dangerous driving
-- Also on the improvement of the mainland's misdemeanor governance system
Miao Shengming is a full-time member of the Procuratorial Committee of the Supreme People's Procuratorate
Abstract The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice issued the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated", which established diversified standards for the criminalization of drunk driving, such as "drunk driving behavior + blood alcohol content + circumstances", and optimized the single standard of blood alcohol content only; It clarifies the circumstances of heavier and more lenient punishments, which is conducive to the full and accurate implementation of the criminal policy of blending leniency and severity; The case-handling process has been simplified, and a mechanism for rapid handling of drunk driving cases has been constructed with the criminal expedited procedure as the framework; The connection mechanism between criminal justice and administrative law enforcement and non-criminal punishment measures have been clarified, forming a more rigorous and progressive drunk driving governance system. The Opinions provide a sample for the construction of a misdemeanor governance system with Chinese characteristics from multiple dimensions such as substance, procedure, policy, and governance. Key words: drunk driving, proviso to Article 13 of the Criminal Law, blending leniency and severity, rapid handling mechanism, misdemeanor management
On December 13, 2023, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated" (Gao Jian Fa Ban Zi [2023] No. 187) (hereinafter referred to as the 2023 Opinions) on the basis of summarizing the effectiveness of the governance of drunk driving for more than 10 years and researching practical issues. The 2023 Opinions are of great significance for deepening the governance of drunk driving and even promoting the improvement of the governance system for misdemeanors in the mainland, by comprehensively and accurately implementing the criminal policy of blending leniency and severity, unifying and optimizing the judicial standards for drunk driving law enforcement, and simplifying the case-handling process.
1. On the substantive issues of handling drunk driving cases
(1) Criminalization criteria for drunk driving cases 1. Consideration for optimizing the criminalization criteria In May 2011, the Criminal Law Amendment (VIII) added the crime of dangerous driving, and driving a motor vehicle while intoxicated on the road (hereinafter referred to as drunk driving) is one of the dangerous driving behaviors. Unlike other types of dangerous driving crimes, such as chasing and racing, the criminalization of drunk dangerous driving does not have other conditions such as "heinous circumstances", "serious circumstances" and "endangering public safety". Therefore, theoretically speaking, the crime of drunk dangerous driving in mainland criminal law is considered to be an act offender and an abstract dangerous offender. The problem is that although the perpetrator does not need the occurrence of the result, it also requires "the existence of a risk of infringement of legal interests", and the establishment of an abstract dangerous offender requires not only danger but also different degrees of danger. As Professor Zhang Mingkai said, abstract danger actually has a degree of danger, and in some crimes, it refers to a major and imminent danger of actual harm, which is actually equivalent to actual harm in some cases, and in some cases it is a relatively mild danger that is far away from the actual harm. How to judge this abstract danger requires unified, quantitative, and actionable standards. The Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases of Driving Motor Vehicles While Intoxicated (Fa Fa [2013] No. 15) (hereinafter referred to as the 2013 Opinions) stipulates that driving a motor vehicle on the road with a blood alcohol content of 80 mg/100 ml or more is considered to be drunk driving a motor vehicle and is convicted and punished as the crime of dangerous driving. This article defines the criteria for the crime of dangerous driving caused by drunk driving: first, the standard for drunkenness is a blood alcohol content of 80 mg/100 ml or more, and second, as long as it is drunk driving a motor vehicle, it should be convicted and punished as the crime of dangerous driving. The reason for determining the criminalization criterion of a blood alcohol content of more than 80 mg/100 ml was that the study at that time believed that "the blood alcohol content of 80 mg/100 ml is based on the physiological characteristics of mainland drivers, the result of a large number of investigations and studies, and the results of multi-party argumentation, which has a strong scientific nature, and has been widely recognized by the society and can be adopted after many years of practical operation." The 80 mg/100 ml criterion set by the 2013 Opinions clarifies the "degree of danger" of judging drunk driving as a dangerous offender from the practical level, plays a role in "judicial quantification", and plays a positive role in clarifying the criteria for determining drunk driving and standardizing case handling procedures. However, in the implementation of the 2013 opinions, a prominent problem was encountered, and many deputies to the National People's Congress and members of the Chinese People's Political Consultative Conference (CPPCC) generally reported that 80 mg/100 ml as a "criminalization standard" was too simple and mechanical. From the perspective of criminal law provisions, drunk driving is a comprehensive act composed of a series of elements in a specific situation, including the degree of intoxication of the perpetrator, the purpose and motivation of driving, whether the perpetrator has driving skills and the level of driving skills, the type of motor vehicle driven, road conditions (road sections, traffic flow, etc.), driving time, speed, distance, etc. The perpetrator's blood alcohol content is only a criterion for reflecting the degree of his intoxication, not only does the difference in the actual degree of intoxication reflected by the same blood alcohol content vary in different people's constitution and alcohol tolerance, but also, more importantly, in addition to the degree of intoxication, the other factors mentioned above also determine the degree of danger of his behavior, which should not be ignored. Considering this difference factor is reflected in the judicial handling of more and more drunk driving cases. First, in some cases, the blood alcohol content reached more than 80 mg/100 ml, which was not treated as a crime. For example, short-distance driving behaviors such as moving a car in a parking lot and handing over a vehicle at the entrance of the community. Second, the proviso to Article 13 of the Criminal Law was applied in batches, which in fact adjusted the criterion for criminalization. For example, the "Minutes of the Meeting of the Zhejiang Provincial High People's Court, the Zhejiang Provincial People's Procuratorate, and the Zhejiang Provincial Public Security Department on Several Issues Concerning the Handling of 'Drunk Driving' Cases" stipulates that if the blood alcohol content is less than 100 mg/100 ml, and there are no eight aggravating circumstances, and the harm is not great, it can be considered that the circumstances are significantly minor, and the case will not be transferred for review and prosecution, and the public security organ will withdraw the case. Such provisions effectively establish the criterion for the criminalization of "blood alcohol content + circumstances". Zhejiang's model has also been recognized by the theoretical community after practice, and some other provinces and cities have successively borrowed this model. In the process of drafting and researching the 2023 opinions, similar suggestions were put forward in many places. This mode of criminalization explored in mainland practice can also be confirmed outside the territory. For example, Section 316 of the German Penal Code (Basic Offence of Driving under the Influence of Alcohol) states: "It is not possible to drive a vehicle safely by drinking alcohol or other narcotics...... shall be sentenced to a sentence of not more than one year of liberty or a fine. In practice, German justice divides drunk driving into "absolute driving incapacity" and "relative driving incapacity". The former refers to a scientifically based standard for all people, i.e. as long as the blood alcohol content is 110 mg/100 ml, then the conditions for dangerous driving can be considered to be met. The latter refers to a blood alcohol content between 30 mg/100 ml and 110 mg/100 ml, which can also be found to constitute the offence of dangerous driving if there is sufficient other evidence to prove that the driver's driving behavior has been seriously affected by alcohol. In the end, the 2023 opinion adopts the criminalization model of "drunk driving behavior + blood alcohol content + other circumstances". 2. Article 4, paragraph 1 of the 2023 Opinions on the Diversity of Criteria for the Criminalization of Drunk Driving provides: "If a motor vehicle is driven on the road and the breath alcohol content test shows that the blood alcohol content reaches 80 mg/100 ml or more, the public security organ shall decide whether to file a case in accordance with the provisions of the Criminal Procedure Law and these Opinions." Where the circumstances are obviously minor and the harm is not great, and it is not considered a crime, the case is not to be filed. "The regulation in fact clarifies that the standard for drunkenness has not changed, and it is still a blood alcohol content of 80 mg/100 ml. This also means that the standard of "drunk driving" as set out in the Road Traffic Safety Act has not changed. On the issue of filing a case, if the breath test shows that the perpetrator's blood alcohol content reaches 80 mg/100 ml or more, there is a suspicion of a crime, but it is not necessary to immediately file a case for investigation, whether it is filed in accordance with the criminal case, and whether it is filed in accordance with the "Criminal Procedure Law", "Provisions on the Procedures for Handling Criminal Cases by Public Security Organs", and the 2023 Opinions and other relevant provisions to carry out further investigation, verification, and determination and judgment, and if the conditions for filing a case are met, the case will be filed in accordance with the law, and if the conditions for filing a case are not met, the case will not be filed. Whether or not a case is filed is ultimately determined by the criterion of guilt. The 2023 Opinions set out different criteria for criminalization based on different circumstances. First, in cases where the blood alcohol content is more than 150 mg/100 ml, if the constituent elements of other crimes (such as roads and motor vehicles) are met, the circumstances of other crimes are no longer considered, and they are directly handled as the crime of dangerous driving. Because, for the vast majority of perpetrators, the blood alcohol content reaches more than 150 mg/100 ml, they are already in a relatively deep state of drunkenness, and the degree of danger is generally very high. In the course of the investigation, it was also found that for cases with a blood alcohol content of more than 150 mg/100 ml, the accident rate increased significantly. Second, if the blood alcohol content reaches more than 80 mg/100 ml but is less than 150 mg/100 ml, and there are 15 aggravating circumstances as provided for in Article 10 of the 2023 Opinions, it will be dealt with as the crime of dangerous driving. In other words, in drunk driving cases between 80 mg/100 ml and 150 mg/100 ml, the criterion of "blood alcohol content + circumstances" is applied. Among them, "circumstances" mainly refers to the 15 aggravating circumstances provided for in Article 10 of the 2023 Opinions. The setting of these circumstances focuses on the dangerousness of the act, taking into account the subjective malice and personal dangerousness of the perpetrator. The third is the criminalization of drunk driving under special circumstances. In the drafting research, there are different opinions on whether it is a crime to drive drunk for short distances such as moving a car, parking in a parking lot, or handing over a vehicle in residential areas, parking lots, and other places. There are opinions that drunk driving in these circumstances is very dangerous, especially in parking lots, residential areas and other places, so it should be criminalized. It was also observed that, even if a crime was committed, there should be a limit on the blood alcohol content, and that if the blood alcohol content was high, it should be criminalized. According to the comprehensive study, the danger of drunk driving should be comprehensively judged. In the above-mentioned circumstances, the perpetrator subjectively did not have the intention of driving long distances on the road, and some called substitute drivers to reflect that they had a sense of abiding by the law, the distance was generally shorter, the speed was generally slow, and the driving section was also different from the busy and crowded roads, and the danger was relatively small. In addition, any blood alcohol content standard for such behaviour may lead to unscientific and unreasonable case handling. Therefore, without the 15 aggravating circumstances stipulated in Article 10 of the 2023 Opinions, it is more reasonable and easy to operate to comprehensively determine that this type of drunk driving behavior is a significantly minor circumstance and not much harm. In practice, there have been many cases of drunk driving in emergency situations such as first aid for injured and sick people. There is some controversy over how to deal with such cases and whether they can be identified as emergency avoidance. Emergency hedging refers to the situation in which a legitimate interest is faced with a danger that cannot be avoided without sacrificing another interest, sacrificing a smaller interest in order to preserve the larger interest. In emergency situations such as first aid for injured or sick persons, the perpetrator does not hesitate to protect the imminent interest of protecting the lives of others in a manner that may cause danger to public safety (drunk driving), which may constitute emergency avoidance. According to the study, those who do fall under the emergency evacuation provided for in article 21 of the Criminal Law do not bear criminal responsibility. When determining whether an emergency avoidance is constituted, it is necessary to examine whether there is an ongoing danger, whether another legal interest is harmed only as a last resort, whether there is an intention to avoid danger, and whether the avoidance exceeds the necessary limit. In practice, when determining the handling of such cases, the difficulty in judging lies in the "last resort". "Last resort" is mainly reflected in the occurrence of danger, and there is no qualified person who can drive on behalf of the driver or alternative treatment and medical treatment methods cannot be found for a while. In some cases, drunk driving is not imminent or the actor has other possibilities to avoid danger but does not take other means (such as being able to call a substitute driver in time or having other qualified drivers around who are willing to help), it is not an emergency evacuation in accordance with the law. However, considering that the perpetrator is unable to make a rational choice in an emergency, if the drunk driving behavior does not cause an accident or other consequences, it is found that the circumstances are obviously minor and the harm is not great, which is more in line with the law and reasonable, and the handling effect is better. Therefore, the 2023 Opinions provide more comprehensive provisions on the circumstances of drunk driving for emergency situations such as emergency rescue of injured or sick persons, which not only clarifies that emergency evacuation can be applied according to the circumstances (Article 12, Paragraph 2 of the 2023 Opinions), but also clarifies that the proviso to Article 13 of the Criminal Law can be applied to exonerate the offender according to the circumstances (Article 12, Paragraph 1, Item 2 of the 2023 Opinions). (2) Grasp the standards of severity and leniency in drunk driving cases, and an important guiding principle for formulating the 2023 Opinions is to fully and accurately implement the criminal policy of blending leniency and severity. Article 2 of the 2023 Opinions stipulates: "People's courts, people's procuratorates, and public security organs handling drunk driving cases shall fully and accurately implement the criminal policy of blending leniency and severity, and implement differentiated treatment based on the specific circumstances of the case, so that where leniency is given, severity is severe, and punishment is appropriate." The core here is how to determine the "specific plot". According to the study, blood alcohol content is not only a simple numerical standard, but also the most basic and important crime circumstance to measure the degree to which the actor's driving ability is affected by alcohol and the degree of danger of the behavior. On the other hand, the spatio-temporal environment, road conditions, the nature of the vehicle, and the admission of guilt and remorse are also important circumstances in judging the harmfulness of drunk driving and the subjective malice and personal danger of the perpetrator. The 2023 Opinions determine the specific criteria for criminalization, leniency, and severity in accordance with the pattern of "dangerous driving under the influence of alcohol + degree of intoxication + presence or absence of other circumstances" as a whole. It should be noted that the 15 aggravating circumstances stipulated in Article 10 of the 2023 Opinions are "incriminating circumstances" (cases between 80 mg/100 ml and 150 mg/100 ml) under certain conditions, and are aggravating circumstances after criminalization under certain conditions. Therefore, the 2023 Opinions use the expression "heavier punishment" rather than "heavier punishment". 1. Setting of Aggravating CircumstancesThe 2023 Opinions mainly combine the aggravating circumstances stipulated in the 2013 Opinions and the development of practice in recent years, adding new circumstances related to the danger of dangerous driving behavior, reducing irrelevant circumstances, and limiting the scope of influence of some circumstances, so as to avoid mechanization. On the basis of the 2013 Opinions, the 2023 Opinions add five aggravating circumstances, including "driving a heavy truck", "transporting hazardous chemicals and dangerous goods", "driving a motor vehicle to engage in school bus business and carrying teachers and students", "driving after taking psychotropic or narcotic drugs controlled by the state", and "obstructing justice such as threatening, retaliating, enticing, or bribing witnesses, evaluators, or destroying or fabricating evidence". These circumstances mainly reflect a high risk factor of the relevant conduct or a greater subjective malice of the perpetrator, and may be considered as a circumstance of conviction or aggravating punishment. In the 2023 opinion, the "urban expressway" drunk driving was deleted. "Urban expressways" have become more common in cities, and drunk driving through expressways and ordinary roads is relatively common, and the danger does not reach the same level as drunk driving on highways from the actual road conditions, and it often causes controversy in practice, so it is deleted. The 2023 Opinions also delete the aggravating circumstance of "using forged or altered motor vehicle license plates", the main consideration is that this kind of behavior is not directly related to the danger of drunk driving, and if the perpetrator has such circumstances, the public security traffic management department can impose an administrative penalty in accordance with the relevant provisions of the Road Traffic Safety Law, and should not be considered when committing a crime or giving a heavier punishment. The 2023 Opinions retain and revise and improve the three aggravating circumstances provisions of the 2013 Opinions. First, the aggravating circumstances of "having been subject to administrative punishment or criminal prosecution for driving a motor vehicle under the influence of alcohol" in the 2013 Opinions have been added to the time limit of "within 2 years (drunk driving)" and "within 5 years (drunk driving)". There are opinions in the study that if the perpetrator has been punished for drunk driving again, it shows that the perpetrator is unrepentant and the subjective malice is obviously greater, so a time limit should not be set. However, considering that drunk driving is a daily crime and there is a realistic possibility of repeated committed, it is necessary to avoid the perpetrator "carrying a lifetime of drunk driving", and reflect the orientation of "giving a way" and re-saving. Due to the different levels of danger and severity of drunk driving, the 2023 Opinions stipulate different time limits. The second is to revise the circumstance of "driving a commercial motor vehicle carrying passengers" in the 2013 opinion to "driving a motor vehicle to engage in passenger transport activities and carrying passengers". The main consideration is to limit the paragraph to motor vehicles engaged in passenger transport activities, excluding non-passenger motor vehicles, and to emphasize whether the motor vehicle is actually engaged in "passenger transport activities" by no longer emphasizing the formal attribute of "operational". In this way, it can cover the behaviors that occur in practice, although they are not operating motor vehicles, but engage in passenger carrying services (such as private cars engaging in online car-hailing, ride-hailing services, and even "black car" carrying passengers). Of course, the 2023 opinion still requires that this type of vehicle should carry passengers when it is investigated, and if it does not carry passengers, it will not be treated as a serious circumstance. The third is to change the "driving without a license" in the 2013 opinion to "driving a car without a driver's license". The main consideration is that a large number of cases of driving motorcycles without a license are investigated and dealt with in practice, and the reasons for driving motorcycles without a license are complex and cannot be completely attributed to the perpetrators themselves, so it is not appropriate to treat driving motorcycles without a license as an aggravating circumstance. In addition, the term "not having a driver's license" here means that you have not obtained a driver's license from the beginning, or you have obtained a driver's license but the type of driving you are permitted to drive does not match. Where a driver's license has been suspended or has been obtained but has been revoked or cancelled for various reasons, it is not a case of aggravating circumstances as provided for herein. The main consideration is to give a heavier treatment to those who drive a car without formal driving training. Article 10, Paragraph 15 of the 2023 Opinions provides a catch-all clause for "other circumstances requiring heavier treatment". The application of the catch-all clause should be strictly interpreted, and the main consideration is that the paragraph is a criminalizing circumstance under specific conditions, and the criminalizing circumstance cannot be arbitrarily set to avoid the expansion of criminalization and the unequal application of law. For example, if there are other criminal records, it is generally not a aggravating circumstance for drunk driving. Driving while intoxicated during the probationary period of probation, release on bail, etc., is generally not considered an aggravating circumstance in the consideration of the crime of drunk driving. If the conditions for revoking a suspended sentence or modifying compulsory measures are met, the suspended sentence or modified compulsory measures are to be revoked in accordance with law. Of course, where drunk driving has already constituted a crime, and there are the above circumstances at the same time, a heavier punishment may be given at the discretion. 2. Leniency CircumstancesThe 2013 Opinions do not have provisions on leniency circumstances. Article 11 of the 2023 Opinions stipulates four circumstances for leniency, including confession, voluntary surrender, meritorious service, voluntary admission of guilt and acceptance of punishment, compensation for losses or obtaining forgiveness after causing a traffic accident, and other circumstances that require leniency. The study believes that the crime of dangerous driving, as the crime with the lightest punishment, should be considered for the application of the lenient circumstances provided for in the Criminal Law and the Criminal Procedure Law while severely dealing with drunk driving in accordance with the law. Confession, voluntary surrender, meritorious service, and voluntary admission of guilt and acceptance of punishment are legally prescribed mitigating, mitigating, or lenient circumstances as provided for in the Criminal Law and the Criminal Procedure Law. Of these, although there may be overlapping parts between admitting guilt and accepting punishment and confession and voluntary surrender, they are not completely equivalent and should be regarded as an independent leniency circumstance. In addition, the following three aspects need to be noted. Circumstances for leniency in compensating for losses or obtaining forgiveness after causing a traffic accident. In the drafting, there were opinions that the accident caused by drunk driving shows that the behavior has changed from an abstract danger to a real damage, and the social harm is great, so as long as an accident occurs, it should be criminalized, prosecuted or even sentenced to actual punishment. There are also opinions that in cases where harmful consequences occur, the criminal law and criminal procedure law of the mainland have always encouraged the perpetrator to actively compensate for losses and repair damages, and encouraged the perpetrator to reach reconciliation and obtain forgiveness with the injured party, so as to resolve social contradictions and repair social relations. This is reflected in the provisions of the Criminal Law, criminal procedures (such as the settlement procedure of the parties), as well as many judicial interpretations and other judicial normative documents, and the handling of drunk driving cases should also follow this spirit. We agree with the latter opinion. Where traffic accidents are caused by drunk driving, causing others to suffer personal injury or property losses, and the perpetrator actively compensates for the losses and reaches a settlement with the victim, a lenient disposition is to be given as appropriate. There are two issues to note here. First, compensation for losses and obtaining understanding are in a parallel relationship. If the perpetrator fully compensates for the losses, even if the injured party does not clearly express forgiveness, does not issue a letter of understanding, or reaches a settlement agreement, it does not affect the leniency of the criminal suspect or defendant; If the perpetrator is willing to compensate but does not have the ability to compensate for the loss or is unable to make full compensation, but the injured party also expresses forgiveness, the criminal suspect or defendant may also be given a lenient disposition; If forgiveness is obtained at the same time as compensation for damages, it is natural that leniency should be granted. The second is the extent of leniency. In cases where the blood alcohol content is relatively low and drunk driving only causes minor property damage or minor personal injury (such as breaking the skin), if the perpetrator compensates for the losses and the two parties reach a settlement or understanding, a larger range of leniency may be given. Regarding other episodes that require leniency. This catch-all clause is mainly applicable to cases with lenient circumstances as provided for in the Criminal Law, the Criminal Procedure Law, relevant judicial interpretations, and other judicial normative documents, as well as cases where there are no explicit provisions, but where appropriate, leniency is in line with legal reasoning and has a better handling effect. For example, juvenile offenders, suspended offenders, and judicial practice use more discretionary leniency circumstances such as consistent good performance, first-time offenders, occasional offenders, and a good attitude of admitting guilt and repentance. On the question of how to deal with both aggravating and lenient circumstances. The key is to seek truth from facts and handle cases in accordance with the principles of sentencing and punishment determined by the Criminal Law, the Criminal Procedure Law, and the Supreme Judicial Organ's Sentencing Guiding Opinions, so that the three effects of proportionality of crime and punishment and case handling are unified. It cannot be because as long as there are aggravating circumstances, even if there are multiple mitigating circumstances, it does not reflect leniency; It cannot be considered that drunk driving itself is a misdemeanor, and it is necessary to engage in "general leniency" and "one leniency to the end"; After combining the circumstances of the two aspects, a judgment and handling should be made as to whether it is "generally lenient" or "generally severe."
II. Procedural Issues in the Handling of Drunk Driving Cases (1) Collection and Review of Drunk Driving Evidence 1. General Requirements for Drunk Driving Evidence Although drunk driving cases are relatively simple, they are also prone to various controversial issues in practice. During the investigation, there were opinions that the handling of drunk driving cases in mainland China strictly follows the provisions of the Criminal Procedure Law, but the requirements for the collection of evidence are too many and too detailed, which is different from the investigation, trial, and handling of relatively simple traffic crimes outside the territory, and the collection of evidence should be simplified as much as possible. There are also opinions that the nature and consequences of crimes in the mainland legal system are fundamentally different from those in the extraterritorial system, and that cases should be handled in strict accordance with the standards of proof and evidentiary requirements stipulated in the Criminal Procedure Law. Finally, the comprehensive study concludes that, on the basis of adhering to the principles and rules of the Criminal Procedure Law of the Mainland, considering that drunk driving cases are petty crimes, the facts are relatively simple, and the verdict mainly relies on objective evidence such as blood alcohol content appraisal opinions, fairness and efficiency should be taken into account, and the evidence that should be collected generally and the evidence that is really necessary to be collected should be clarified to reduce unnecessary evidence collection. Article 7(1) of the 2023 Opinions sets out the evidence that should generally be collected. Paragraph 2 of Article 7 of the 2023 Opinions mainly focuses on special circumstances such as disputes or accidents, and requires the collection of corresponding evidence as provided in paragraph 2 on the basis of the evidence specified in paragraph 1 of Article 7. For example, in general criminal cases, there are materials on the history of the case, but the vast majority of drunk driving cases are found at the scene, which are reflected in the materials accepted by the public security organs, the prosecution opinions, etc., and generally do not involve the determination of voluntary surrender, so there is no need to issue a separate copy of the materials on the case. However, if the accident is reported to the police or found in other circumstances, it is necessary to make a special explanation of the circumstances of the suspect's arrival in the case, so as to find out whether there are circumstances such as voluntary surrender and confession. 2. Standardize blood testing procedures: Blood alcohol content appraisal opinions are the key evidence for the verdict of drunk driving cases, and are the top priority in the collection and review of case evidence. In judicial practice, disputes are likely to arise in the process of extracting, encapsulating, storing, submitting for testing, and identification of blood, and the identification and handling of controversial issues are not consistent. The 2023 Opinions do not provide comprehensive and detailed rules on blood testing procedures. On the one hand, paragraph 1 of Article 8 of the 2023 Opinions stipulates in principle that the procedures for the collection, packaging, storage, inspection, and identification of criminal suspects' blood samples shall be implemented in accordance with the relevant procedures and appraisal rules of the Ministry of Public Security and the Ministry of Justice on the handling of road traffic safety violations. On the other hand, paragraphs 2, 3 and 4 of Article 8 of the 2023 Opinions make uniform provisions on issues such as blood sample extraction, encapsulation and video, time for testing, and time for issuing appraisal opinions, which are likely to cause controversy. One of the more important additions in the 2023 Opinions is the requirement to make audio and video recordings of the appraisal process. The 2023 Opinions not only reiterate that the entire process of extracting and encapsulating blood samples must be recorded and videotaped, but also add provisions on audio and video recording of the identification process. In the drafting, it was suggested that there was a problem of falsification in appraisal in judicial practice, so the appraisal process should be recorded and videotaped simultaneously to avoid room for fraud and perversion of the law. There are also opinions that the appraisal process has many links and a long duration, and that there are many cases and the video recording is not suitable for preservation, so it is not recommended to make audio or video recordings of the appraisal process. Finally, it is concluded that the blood test procedure has made strict requirements in the extraction, encapsulation, preservation, and testing links, and the video regulations are added to the final identification link, which can realize the whole process monitoring and closed-loop management of blood samples and ensure the fairness and justice of case handling. Taking into account the actual situation of the appraisal institution, the 2023 Opinions limit the scope of the appraisal video to the process of the appraiser's use of the sample, mainly requiring "audio and video recording of the process of blood sample preparation and instrument testing". Through the video, you can see the process of blood samples from the unsealing of the packaging state, sampling, adding reagents and other operations to the use of instruments and equipment to carry out testing. The video recording of the appraisal process is mainly an external supervision method for the use of samples by the appraisers. Appraisal bodies may use methods such as installing fixed monitoring equipment at appraisal sites to record the entire appraisal process. Appraisal audio and video recordings do not need to be transferred to the case-handling organs at the same time, but are retained for future reference when the parties raise objections. The 2023 Opinions do not make uniform requirements for the time for video retention, and it is necessary for the competent department of the forensic authentication institution to make a standard. From the perspective of case handling, the video should be saved until the case is completed (such as the end of the second trial). 3. The rules for the admission of flawed evidence do not strictly follow the provisions on the extraction, packaging, storage, testing, and appraisal of blood samples, and whether the relevant evidence can still be used as the basis for a verdict, and there are different ways to handle it in judicial practice. There are those that have been excluded so that the case cannot be decided, there are also those that have been accepted through supplementation and correction and reasonable explanations, and there are also those that have been given leniency after being accepted. There are opinions that the blood evaluation opinion is the most critical evidence in a drunk driving verdict, and the strictest requirements should be adhered to, and those who violate procedural provisions in the collection, packaging, storage, and testing of blood should be excluded. There are also opinions that blood samples as physical evidence and blood appraisal opinions as appraisal opinions are two different forms of evidence, and different review and judgment rules apply, and procedural flaws in the collection of blood samples as physical evidence should not be confused with violations of appraisal procedures in the appraisal process. Blood samples that are used as physical evidence should follow the rules for the review and determination of physical evidence, while the identification of blood samples should follow the rules for the review and determination of appraisal opinions. However, according to article 56 of the Criminal Procedure Law, the collection of evidence does not comply with legal procedures, and the rules for admissibility of flawed evidence are applied, and are not always excluded. Of course, the two are not absolutely separated, for example, the storage and submission of blood samples usually involve the identity of the sample material, whether it is contaminated, and other issues. We agree with the latter view. By summarizing judicial experience and soliciting opinions extensively, the 2023 Opinions clarify that the four types of evidence are flawed evidence and can be supplemented and corrected. First, the extraction, encapsulation and storage of blood samples are not standardized. The "irregularity" here refers to the failure to comply with the provisions of the Ministry of Public Security on the procedures for handling road traffic safety violations, the Criminal Procedure Law, the 2023 Opinions and other provisions, such as the use of alcohol disinfectant when taking blood samples, the absence of synchronous audio and video recording, and the lack of the signature of the extractor when packaging. Taking alcohol alcohol disinfection as an example, in many cases, it has been proved that alcohol disinfection has very little or even negligible contamination of blood through investigative experiments and other means, and if the blood measurement result is more than 80 mg/100 ml or reaches 150 mg/100 ml, the relevant evidence should not be directly excluded. The second is that it fails to submit for inspection and issue appraisal opinions in accordance with the prescribed time and procedures. The 2023 Opinions stipulate that the time for submitting and issuing appraisal opinions is stricter than that of the General Principles of Judicial Appraisal Procedures and the Appraisal Rules of Public Security Organs, mainly for the purpose of punishing drunk driving strictly and quickly. However, if there are truly legitimate reasons why it cannot be completed within the prescribed time limit, and reasonable explanations or corrections can eliminate reasonable doubt, the relevant evidence may be admissible. For example, in special periods such as epidemic prevention and control, if it is indeed impossible to make an appraisal within the strictest time specified in the 2023 Opinions, as long as the blood sample is properly kept, and the credibility of the blood test results can be ensured by combining other evidence, it can be admissible as evidence. Third, the identification process was not synchronized with audio and video recordings. The rules for admitting the appraisal process without a synchronous audio or video recording are the same as those for the extraction and encapsulation process without a synchronous audio or video recording. Fourth, there are other flaws or non-standard evidence collection behaviors. Although the above-mentioned flawed evidence can be corrected, two points need to be explained. First, after the flawed evidence is supplemented and corrected, other evidence should be integrated to the extent that reasonable doubt is eliminated. In other words, not all irregularities in evidence collection can be accepted after supplementation or explanation, and specific issues should be analyzed on a case-by-case basis, and other evidence should be combined to focus on examining whether the correction and explanation can eliminate reasonable doubt. For example, blood generally needs to be stored at low temperature, and if it is not stored at low temperature for a long time, because the evidence has been greatly affected, even corrections and explanations are not enough to ensure the authenticity and accuracy of blood test results, and relevant evidence should be excluded. Second, flawed evidence can be supplemented and corrected, which does not mean that it can arbitrarily and deliberately break through the norms of evidence collection. Relevant departments should correct flawed evidence collection in accordance with their own duties and authority, and require relevant personnel to make corrections to prevent recurrence. For example, even if the procuratorate accepts evidence of relevant flaws or illegal evidence through supplementation and reasonable explanation, it must also correct it orally or in writing. (2) Litigation procedures for handling drunk driving casesIn recent years, drunk driving cases account for a relatively high proportion of criminal cases handled by basic level public security and judicial organs, and handling them in strict accordance with the handling procedures for ordinary criminal cases will consume more law enforcement and judicial resources. In the investigation, it was also found that the investigation, prosecution and trial of drunk driving cases in many places take a long time, which is easy to breed integrity risks such as interfering with judicial case handling. There is a consensus among the formulators of the 2023 Opinions on improving the procedures for handling drunk driving cases and improving the efficiency of litigation. Considering that drunk driving is a petty crime, the vast majority of the cases and evidence are relatively simple, and meet the conditions for the application of expedited procedures as provided for in the Criminal Procedure Law, it is necessary to establish a rapid handling mechanism on the premise of following legal procedures, protecting the rights of the parties, and ensuring the quality of the case, so as to simplify the case-handling procedures and documents, and improve the efficiency of case-handling. Articles 21 to 26 of the 2023 Opinions set out the relevant procedural rules for the expedited handling of drunk driving cases. 1. Scope of Application of the Expedited Handling MechanismArticle 22 of the 2023 Opinions clarifies the scope of cases to which the expedited handling mechanism applies, that is, drunk driving cases that meet the following conditions shall generally be subject to the expedited handling mechanism: the on-site seizure does not cause a traffic accident; The facts are clear, the evidence is credible and sufficient, and there is no dispute over the application of law; Criminal suspects or defendants voluntarily admit guilt and accept punishment; There are no circumstances provided for in article 223 of the Criminal Procedure Law (circumstances where expedited procedures are not applicable). In accordance with the provisions, the expedited handling mechanism may not be applied to cases that have a long period of time for collecting specific evidence, need to be identified as an accident, appraisal of personal injuries and property damages, and conflict resolution, and are relatively controversial, and time-consuming, and may be handled in accordance with normal procedures, and in principle, the expedited handling mechanism shall be applied in cases where there are no such special circumstances. The relationship between the expedited handling mechanism and the expedited procedures is that the expedited procedures are mainly the trial procedures of the courts, and the expedited procedures can also be applied to the procuratorial link, but there are no requirements for the investigation link, and the expedited handling mechanism for drunk driving cases is based on the expedited procedures, and puts forward requirements for the handling of cases in the three stages of investigation, prosecution, and trial. 2. The time limit for handling cases under the expedited handling mechanismRegarding the time limit for applying the expedited handling mechanism, there are also different opinions and plans in the research. Some people believe that considering the differences in different regions and different cases, it is not realistic to set a uniform time limit for handling cases. There are also opinions that if a time limit for handling cases is not set, the mechanism for rapid handling cannot be implemented, and the problems of a long period of handling cases and delays in handling cases cannot be fundamentally resolved. In addition, there is controversy over how long the time limit for handling cases should be set. During the investigation, it was found that some places have explored a 48-hour expedited trial mechanism for drunk driving cases, some places complete the investigation, prosecution, and trial work within 7 days after detention, and some local public security organs can transfer the case for review and prosecution within 5 working days after the case occurs, so some opinions suggest setting a shorter time limit for handling cases, such as 7 days, 10 days, 15 days, etc. Finally, Article 23 of the 2023 Opinions stipulates that the public procuratorate and judicial organs shall generally complete the investigation, prosecution and trial within 30 days from the date of filing and investigation. The first reason for this provision is that we believe that the expedited handling mechanism should be designed within the framework of the expedited procedures stipulated in the Criminal Procedure Law. In accordance with the relevant provisions of the Criminal Procedure Law, the time limit for review for prosecution is generally 10 days for cases applying expedited trial, and the time limit for trial is generally 10 days. The 30-day total time limit for handling cases stipulated in the 2023 Opinions is in harmony with the provisions of the Criminal Procedure Law. Second, it is necessary to pay attention to strengthening the protection of the procedural rights of criminal suspects and defendants and ensuring the quality of case handling. After all, drunk driving cases are criminal cases, and setting an excessively short time limit for handling cases affects the exercise of the rights and interests of criminal suspects and defendants such as the right to defense; For the public procuratorate, procuratorate, and judicial organs, an excessively short time limit for handling cases is usually not conducive to ensuring the quality of case handling. In short, it is necessary to strike a balance between fairness and efficiency. The 30-day period is the maximum time limit for the application of the expedited handling mechanism, and the local public security and judicial organs may determine the length of case handling at each stage of the investigation, prosecution and trial based on the actual local conditions, such as the establishment of the public security law enforcement and case-handling center, the coordination and cooperation mechanism of the public procuratorate, the establishment of expedited courts, and the staffing of personnel. In addition, the maximum time limit for handling cases is mainly applicable to cases that require public prosecution; For cases where the case is to be withdrawn or relatively not prosecuted, in consideration of the need to engage in procedures such as public interest services, internal approval and review, and procuratorial hearings, in order to ensure effectiveness, it may not be subject to the time limit set by the expedited handling mechanism based on the actual circumstances. Of course, in order for the parties to get rid of the burden of litigation as soon as possible and save law enforcement and judicial resources, the time limit for handling drunk driving cases should not be delayed too long. 3. Simplifying Case-Handling ProceduresThe Criminal Procedure Law appropriately simplifies trial procedures when setting up expedited procedures, but does not provide for case-handling procedures in the investigation and prosecution links. According to the study, if the efficiency of litigation is to be improved in handling drunk driving cases, it is necessary to further simplify the procedures for handling cases under the framework of the Criminal Procedure Law. In this regard, the 2023 Opinions focus on the following two aspects of optimization. First, under normal circumstances, insurance renewal is no longer required. Article 24 of the 2023 Opinions stipulates that when a case is transferred to the review for prosecution or trial stage, and the period for release on guarantee pending further investigation has not yet expired and the conditions for release on guarantee pending further investigation are met, the organ accepting the case may not make a new decision on release on guarantee pending further investigation, and the public security organ will continue to implement the original measures of release on guarantee pending further investigation. Article 103 of the Rules of Criminal Procedure of the People's Procuratorate (Gao Jian Fa Shi Zi [2019] No. 4) and Article 162 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China (Fa Shi [2021] No. 1) both stipulate that a new decision on release on guarantee pending further investigation is required for those who need to continue to be released on bail pending further investigation. The 2023 Opinions make appropriate adjustments to the provisions of the above judicial interpretations in light of the characteristics of rapid procedural progress and short period of drunk driving cases, with the following specific considerations. On the one hand, it is generally reflected in the survey that the number of drunk driving cases is large, and the facts of the cases are relatively simple, and it requires the application of expedited procedures, and the need to find a guarantor, re-issue documents, and serve them to the public security organs for enforcement when re-release on bail is required, which consumes a lot of law enforcement and judicial resources in the case of short review for prosecution and trial, and tight manpower. However, the bail measures handled by the public security organs during the investigation stage are sufficient to complete the case, and the new decision is generally ultimately implemented by the original public security organ, and the enforcement organ has not changed, so the re-release of bail is redundant for the vast majority of drunk driving cases. On the other hand, the provisions of the above-mentioned judicial interpretations have not been implemented in practice in many regions. During the investigation, it was learned that in some areas in handling drunk driving cases (even other cases), the main reason is that the provisions on re-applying for bail procedures are not implemented in accordance with the regulations, and the main reason is that manpower and time are tight, and they cannot be handled. Therefore, if we want to truly realize the quick handling of simple cases and the separation of complicated and simple cases for petty crimes such as drunk driving, it is necessary to make some breakthroughs in seeking truth from facts, that is, for cases such as drunk driving, which are subject to the fast-track handling mechanism, the prosecuting and adjudication organs may no longer make a decision to release on bail pending trial. Of course, if it cannot be completed within the statutory time limit, the latter case-handling organ shall promptly handle new formalities for release on guarantee. Second, social assessment is generally not required in cases where a suspended sentence is to be imposed. Article 25 of the 2023 Opinions provides: "Where a drunk driving defendant intends to submit a suspended sentence or announce a suspended sentence, an investigation and assessment may generally not be conducted. and where it is truly necessary, community corrections establishments or relevant social organizations shall be promptly retained to conduct an investigation and assessment. The entrusted party shall promptly provide the results of the investigation and assessment to the entrusting organ. "The main consideration is that, on the one hand, many case-handling personnel in the investigation reported that the social danger of drunk driving perpetrators is relatively low, and there is no need to investigate the impact on local society for most people. On the other hand, the caseload is large, and community corrections establishments in some areas are short of manpower, and many investigations are mere formalities, and feedback is not timely, affecting the progress of case handling. In addition, there is no legal requirement for a social investigation assessment in cases for which probation is applicable. Therefore, there is generally no need for an investigation and assessment of drunk driving cases. Of course, where the defendant's background is complex and he has a bad criminal record, it is necessary to conduct an investigation and assessment in accordance with relevant provisions to further determine whether a suspended sentence and community corrections are appropriate.
III. On the issue of comprehensive management of drunk driving cases
In 2023, the opinion-making units generally believe that for daily crimes such as drunk driving, the hand of cracking down on punishment cannot be relaxed, but "one punishment" is not the best plan and a fundamental solution, and prevention and comprehensive treatment at the source are indispensable. Articles 27 to 29 of the 2023 Opinions respectively put forward requirements for case-handling organs and other units to strengthen the comprehensive management of drunk driving from the aspects of legal popularization and publicity, coordinated governance, and education and reform. In addition, in order to strengthen comprehensive governance and litigation source management in a variety of ways, and prevent and reduce the occurrence of drunk driving behavior from the source, the 2023 Opinions innovatively stipulate measures for voluntary participation in public service and improve non-criminal punishment methods for drunk driving cases. (1) Voluntary participation in public interest services In recent years, law enforcement and judicial organs have continuously deepened their understanding of the laws governing drunk driving, and explored better case handling and crime prevention measures. During the investigation, it was learned that the public security and procuratorial organs of many provinces and cities explored the case-handling model of "admitting guilt and accepting punishment + social public welfare services + drunk driving without prosecution", and for drunk driving cases where the circumstances were minor, the criminal suspect's voluntary participation in social public welfare services was taken as an important basis for investigating his admission of guilt and acceptance of punishment, repentance and repentance. From a practical point of view, allowing perpetrators to enhance their sense of social responsibility and better return to society in voluntarily participating in public welfare services can effectively prevent the recidivism of those who are not prosecuted, and at the same time enrich the strength of grassroots social governance, so as to realize the transformation from crime punishment to governance. In the preliminary investigation, many local departments and grassroots representatives suggested summing up and absorbing such exploration experience. The 2023 Opinions incorporate the above-mentioned opinions, and specifically stipulate in Article 18 that "the perpetrator's voluntary acceptance of safe driving education, voluntary traffic services, community public welfare services, etc., may be taken into account in making relevant treatments". To accurately grasp the provisions, it is necessary to pay attention to the following points. First, social public welfare services are mainly applicable to cases where the circumstances are obviously minor, the circumstances are minor, and the sentence of probation (including conviction and exemption from punishment). Second, the activities in which criminal suspects and defendants voluntarily participate mainly include receiving safe driving education, engaging in traffic volunteer services, and community public welfare services. Among them, receiving safe driving education mainly refers to learning and testing traffic safety laws and regulations under the arrangement of the case-handling organs and other departments, watching warning education films, etc., and some places arranging for perpetrators to observe the trial of traffic cases and the first aid scene of traffic accidents are also desirable ways. Traffic volunteer service and community public welfare service are mainly engaged in road order maintenance, co-management, traffic safety publicity, community respect for the elderly, environmental maintenance and other public welfare activities under the arrangement of public security traffic management departments, communities and other grassroots organizations and social welfare organizations. Third, participation in community public welfare activities must be voluntary of the actor. The perpetrator's participation in these activities is not a punishment or punishment for the perpetrator. When handling a case, the case-handling organs shall explain to the perpetrator the factors that the case-handling organs are primarily considering in making the corresponding disposition, and explain that the perpetrator may accept an investigation through voluntary engagement in public interest services, and the actor himself is to choose whether or not to participate. Fourth, circumstances such as the actor's performance in public interest services are factors to be considered in making corresponding dispositions. The perpetrator's "admission of mistakes and repentance", "admission of guilt and repentance", "expression of remorse", etc., are mainly examined through the above-mentioned conduct, and these circumstances are one of the bases for making corresponding dispositions. If, during the period of voluntary transportation volunteer service, the perpetrator does not obey work arrangements, arrives late and leaves early, behaves lazily, or exhibits other negative behaviors, it may be found that the perpetrator has a poor sense of rules and a weak sense of repentance and repentance, and the disposition of withdrawing the case, not prosecuting, or giving a suspended sentence (waiver of criminal punishment) is not applicable. (2) Administrative punishment measures for drunk driving casesIn order to strengthen the education and punishment of those who are not prosecuted or exempted from criminal punishment, article 19 of the 2023 Opinions provides: "Where a criminal suspect or defendant decides not to prosecute or be exempted from criminal punishment, they may be reprimanded or ordered to make a statement of repentance, make a formal apology, or compensate for losses based on the different circumstances of the case, and where it is necessary to give administrative punishment or sanction, transfer it to the relevant competent organs for handling." This provision is based on Article 37 of the Criminal Law, Article 177, Paragraph 3 of the Criminal Procedure Law, and Article 373 of the Criminal Procedure Rules of the People's Procuratorate (Gao Jian Fa Shi Zi [2019] No. 4). Although these provisions are already in place in the law, they are not fully implemented in judicial practice. In particular, there has been controversy in practice over whether and what kind of administrative punishment can be imposed on drunk driving cases where the case is withdrawn, not prosecuted, or exempted from criminal punishment. According to the provisions of Article 92, Paragraph 2 of the Road Traffic Safety Law, the public security organ may impose an administrative penalty of revoking the driver's motor vehicle driver's license and not re-obtaining the driver's license for five years. This provision is well implemented in practice, and the controversy is whether the administrative penalty for drunk driving can be applied to drunk driving cases. There is a view that after drunk driving was criminalized in 2011, the Road Traffic Safety Law deleted the penalty provisions for administrative detention and fines in drunk driving cases, and "drunk driving" and "drunk driving" are different legal concepts, so there is no legal basis for applying the above two administrative penalties to drunk driving cases. There is also a view that the Criminal Procedure Law of the Mainland provides that if a person who does not prosecute or is exempted from criminal punishment needs to be given an administrative punishment or sanction, it shall be transferred to the relevant competent authority for handling. Driving a motor vehicle while intoxicated is a serious act of driving a motor vehicle after drinking, and the difference between the two is only the difference in blood alcohol content, only the difference in quantity, and there is no essential difference in the nature of the behavior; According to the principle of natural interpretation of "the severity of the case is the severity of the case", there is a legal basis for applying the administrative punishment measures of drunk driving after the case is not filed, prosecuted, or exempted from punishment. We agree with the latter view. According to Article 20, Paragraph 1 of the 2023 Opinions, drunk driving is a serious act of driving a motor vehicle after drinking. Where the blood alcohol content reaches 80 mg/100 ml or more, the public security organs shall give the perpetrator an administrative punishment of revoking the driver's license of the motor vehicle before withdrawing the case or transferring it for review for prosecution. In cases where the public security organs do not file a case in accordance with the proviso to article 13 of the Criminal Law, the public security organs shall also impose administrative penalties such as fines and administrative detention on the perpetrator in accordance with the corresponding circumstances of driving a motor vehicle after drinking alcohol as provided for in the Road Traffic Safety Law. This article requires that when handling a drunk driving case, the public security organ may first revoke the perpetrator's motor vehicle driver's license, and then impose an administrative penalty in accordance with the corresponding punishment provisions for drunk driving in the case of drunk driving that the case is withdrawn or not filed in accordance with the regulations. Article 91 of the Road Traffic Safety Law stipulates penalties such as fines and administrative detention (second drunk driving, driving a commercial motor vehicle under the influence of alcohol) depending on the circumstances. According to this provision, if it is the first drunk driving, a fine is imposed. If it is a second drunk driving or has a previous drunk driving record, it shall be fined and administratively detained. If he drives a commercial motor vehicle while intoxicated, he shall also be fined and administratively detained. On the basis of paragraph 2 of article 20 of the 2023 Opinions, where the people's courts and people's procuratorates apply the proviso to article 13 of the Criminal Law to provide for non-prosecution, a verdict of not guilty, or a relative non-prosecution, or exemption from criminal punishment, where it is necessary to give an administrative punishment to the person or defendant who is not being prosecuted, they shall submit a procuratorial opinion or judicial recommendation and transfer it to the public security organs for handling in accordance with the provisions of the preceding paragraph; The public security organs shall report the disposition to the people's courts and people's procuratorates. For such cases, after the judicial procedures for non-prosecution and conviction and exemption from punishment have been completed, the public security organs are to give the perpetrator a corresponding administrative punishment on the basis of the opinions or recommendations of the people's procuratorate or people's court. What needs to be explained here is that the specific administrative punishment measures to be given should be determined according to the specific circumstances of the case. For example, if the perpetrator has already been detained in advance, even if he can be placed under administrative detention in accordance with the Road Traffic Safety Law, there is no need to recommend that the public security organ impose an administrative detention penalty, but only a fine.
IV. The Enlightenment of the 2023 Opinions on Improving the Governance System of Misdemeanors in the Mainland
With the continuous expansion of the criminal law in the mainland, the continuous changes in the crime situation and structure, and the sound and perfect criminal legal system, how to strengthen and improve the governance of misdemeanors has become a necessary question to promote the modernization of the national governance system and governance capacity. Drunk driving cases are typical minor crimes, and the issuance and implementation of the 2023 Opinions provide a model for us to promote the improvement of the misdemeanor governance system. The first is to accurately grasp the boundary between crime and non-crime in terms of entity criminalization, and reasonably delineate the criminal circle. From the judicial level, when accurately understanding the application of the relevant crimes of the Criminal Law, especially minor crimes with administrative offenses as the main body, it is necessary to pay attention to the characteristics of the mainland's legal sanction system itself. The dichotomy between violation of law and crime, and between administrative punishment and criminal punishment, is fundamentally different from the extraterritorial legal sanction system. Regardless of common law or civil law systems, most of them do not distinguish between violations and crimes, especially those that require punishment of restriction of personal liberty, which are treated as crimes and are adjudicated by the judicial organs; In the criminal system, a distinction is made between felonies, misdemeanors, and crimes against the police, and a system of criminal stratification is implemented. That is to say, the punishment of fines or detention in the mainland's public security punishment mostly falls within the scope of adjustment of the criminal law outside the territory, and in turn, it is handled as a crime outside the territory, especially many misdemeanors and minor crimes, which correspond to the mainland's public security punishment and administrative punishment. Therefore, the extraterritorial criminalization standard should be systematically compared with the mainland criminalization standard, and it cannot be mechanically compared, and it cannot be considered that the extraterritorial criminalization standard for a certain behavior is very low (for example, many foreign countries stipulate that drunk driving with a blood alcohol content of 30 mg/100 ml or 50 mg/100 ml constitutes a crime), and we must also determine such a low criminalization standard. We have to consider that we also have an administrative punishment system, and it can even be said that the administrative punishment system is the basic system of the mainland's behavior regulation (most behaviors are handled by the administrative punishment system), and the criminalization of exceeding this system may fundamentally change the mainland's dual sanction system. The dual sanction system has an institutional support role in maintaining the modesty of the mainland criminal law, and even if an act is not treated as a crime, it can be properly regulated in the administrative punishment system. When delineating the boundaries between crime and non-crime, it is necessary to return to the definition of crime in the mainland criminal law, that is, the provisions of article 13 of the Criminal Law, and take social harmfulness, criminal illegality, and punishability as the basic basis for whether or not a crime is established, and give play to the restraining role of the definition of crime in the general provisions of the Criminal Law in the interpretation and application of individual crimes as provided for in the specific provisions of the Criminal Law. The proviso to Article 13 of the Criminal Law provides a legal basis for restricting the criminalization of administrative offenders, and the concepts of "social harm" and "punishable by criminal punishment" in the concept of crime under Article 13 of the Criminal Law are essentially a kind of "value judgment", which can not only guide the interpretation of specific constituent elements, but also provide a basis and space for the discretion of individual cases in judicial case handling. The establishment of the new criterion for the criminalization of drunk driving has played a good role in restraining and guiding the interpretation of the provisions of the sub-provisions of Article 13 of the Criminal Law. The application of the proviso to Article 13 of the Criminal Law can delineate a reasonable criminal circle and form a system in which administrative punishment and criminal punishment are connected and progressive. Second, in terms of policy grasp, it is necessary to fully and accurately implement the criminal policy of blending leniency and severity, and make fewer arrests and cautious prosecution and detention for minor crimes in accordance with the law. The criminal policy of blending leniency with severity is the basic criminal policy of the mainland and applies to all cases, including misdemeanor cases. The application of the criminal policy of blending leniency and severity in misdemeanor cases also has its own characteristics. Considering that the nature of misdemeanors is relatively light, the harm is relatively small (some of the harm is relatively recoverable), and the people involved in the cases involve a wide range of people, and in the mainland's governance system, there is basically no essential difference between the incidental consequences of misdemeanor criminalization and serious crimes, the criminal policy of blending leniency and severity should be more fully implemented in misdemeanor cases, and fewer arrests in accordance with the law, careful prosecution and careful detention should be regarded as a specific work requirement for handling minor crime cases. What needs to be emphasized is that even if it is a minor crime, it is necessary to distinguish between the seriousness and heinness of the crime, avoid the two extreme tendencies of "prosecuting all cases" or "one leniency to the end", and achieve differentiated handling and fairness in individual cases. The third is to further improve the procedural system that is compatible with misdemeanor cases. On the one hand, it is necessary to further improve the multi-level litigation procedure system with ordinary, simplified, and expedited procedures as the framework, establish litigation procedures that are more in line with the actual handling of misdemeanor cases, and extend the optimization of litigation procedures from the trial link to the prosecution and investigation links. On the other hand, more governance factors should be integrated into the case handling procedures, and the role of litigation procedures in regulation, education, and punishment should be brought into play, rather than formally and mechanically following procedures and closing cases. For example, even in cases where there is no conviction and punishment in the end, procedural rules can be used to educate the perpetrator and prevent recidivism. Fourth, we should pay more attention to comprehensive management. Misdemeanor cases are usually routine and high-incidence crimes, and the perpetrator's personal dangerousness and subjective malice are relatively low, the perpetrator's educationability and reformability are relatively strong, and the effect of education and prevention is usually better. Therefore, the public security and judicial organs should put the work of prevention at the source and comprehensive management in the same important position as the judicial handling of cases. For example, better practice the "Fengqiao experience" in the new era, more fully implement the responsibility system for popularizing the law, make full use of the procuratorial suggestion and judicial recommendation mechanism, and make voluntary participation in public interest services, public interest restoration, and reconciliation and understanding a necessary procedure and means for handling misdemeanor cases, so as to achieve equal emphasis on crime punishment and governance.
(About the author: Deputy ministerial-level full-time member of the Procuratorial Committee of the Supreme People's Procuratorate. ）