A, synonymous with traffic accident crime
defence
The presiding judge and judge:
Entrusted by the relatives of the defendant Wang and appointed by Tianjin Zhengyang Law Firm, as the defender of the defendant Wang, I put forward the following defense opinions for the reference of the collegial panel.
This defender believes that the road traffic accident certificate has insufficient basis for determining the responsibility for the accident, and the applicable law is wrong. Wang should bear the main responsibility for traffic accidents, and Wang does not constitute a crime of traffic accidents.
1. Paragraph 2 of Article 52 of the Regulations on the Implementation of the Road Traffic Safety Law stipulates: If there is no traffic sign or marking control, stop and watch before entering the intersection, and let oncoming vehicles on the right go first. The defender believes that this paragraph should be understood as follows:
First, the parking lookout mentioned in this paragraph does not only mean that the cars coming from the left should stop to watch, but also the cars coming from the right should stop to watch.
Second, the oncoming vehicles on the right come first, which means that the oncoming vehicles on the left and the oncoming vehicles on the right arrive at the intersection at the same time. If the car coming from the left enters the intersection first, there is no problem of letting the car coming from the right go first. If you don't let the oncoming car on the right go first when you reach the intersection at the same time, how far should you let the oncoming car on the right go first? Is it 1000m from the intersection? Or 500 meters or something? The law does not stipulate how far the oncoming car on the right road should go first. If you give priority to the oncoming car on the right no matter how far it is, it is very likely that the oncoming car on the left will not pass. So this rule should mean to let the road on the right side of the intersection come first.
In this case, Wang did not stop to check before entering the intersection, which also violated the second paragraph of Article 52 of the Regulations for the Implementation of the Road Traffic Safety Law. In addition, judging from the brake marks of the vehicle driven by Wang and the vehicle driven by Wang, the distance is basically the same, that is to say, both sides found each other almost at the same time. If Wang found the situation late and was not focused when driving, then Wang also found the situation late and was not focused.
Judging from the distance from the intersection of the two sides to the scene of the accident, the distance from the intersection of Wangcong North Ring Road to the scene of the accident is 90.46m [the calculation method is as follows: the width of Jinqi Highway is (375+365+200+600)? 2 = 3080cm, the intersection from the east side of Jinqi Highway to the east side of Beihuan Road, 6760+3080 = 9840; The linear distance from the intersection on the east side of the North Ring Road to the accident site is 9840-600 (from the east side of Jinqi Highway to the east isolation belt) -200 (from the width of the east isolation belt) -7 15 (from Wangzha line to the east isolation belt) +600 (from Wangzha line length) = =8925cm. The actual distance from the exit of the North Ring Road to the scene of the accident is the square of 8925 +(300+375+600) under the root number = =9046cm. Wang's distance from the intersection to the accident site is 70.70m m. Wang's driving distance is longer than Wang's 19.70m, which means that if Wang's speed is equal to or lower than Wang's speed, Wang must first enter the intersection. But there is no evidence to prove the speed of Wang and Wang at that time, and there is no evidence to prove who entered the intersection first.
Judging from the case, it should be Wang Xian who entered the intersection. The reasons are as follows: First of all, the distance from Wanglukou to the scene of the accident is farther than Wang's. Secondly, Wang's speed is lower than Wang's. First, the vehicle driven by Wang is a dump truck, while Wang is driving a car, which is faster than Wang's dump truck. Secondly, according to Wang's confession and testimony (with driver's license), the two statements are basically the same, confirming that Wang's driving speed at that time was 40-50 km/h, while Wang's driving speed was 80- 100 km/h.
Therefore, in this case, it was Wang Moumou, not Wang, who violated the second paragraph of Article 52 of the Regulations for the Implementation of the Road Traffic Safety Law.
2. Wang is driving a stolen vehicle, and the license plate belongs to a deck. Without the necessary annual inspection, according to Article 8 of the Road Traffic Safety Law, the car can't drive on the road, and Wang doesn't have a driver's license. It is accidental for people without driving qualifications to drive vehicles that can't be on the road, and traffic accidents are inevitable.
To sum up, this defender believes that Wang Moumou should bear the main responsibility for the accident and does not constitute a traffic accident crime.
Second, the criminal responsibility of traffic accident crime
According to the provisions of Article 133 of the Criminal Law, there are three different punishment levels (sentencing levels) for traffic accidents:
Whoever commits a traffic accident shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Whoever escapes after a traffic accident or has other particularly bad circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Those who escape and cause death shall be sentenced to fixed-term imprisonment of more than 7 years (a few sentenced to 15 years).
major malfunction
1. Whoever violates the traffic and transportation management regulations, thus causing serious accidents, causing serious injuries, deaths or heavy losses to public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.
The so-called here? Have a major accident? According to paragraph 1 of Article 2 of the Interpretation, it refers to any of the following circumstances:
(1) Causing one person to die or more than three people to be seriously injured, and taking full or main responsibility for the accident;
(2) Causing more than 3 deaths and taking equal responsibility for the accident;
(3) Causing direct losses to public property or other people's property, taking full or major responsibility for the accident and being unable to pay compensation of more than 300,000 yuan.
Paragraph 2 of Article 2 of the Interpretation stipulates that if a traffic accident causes more than one person to be seriously injured and bears all or the main responsibility for the accident, he shall be convicted and punished for the crime of traffic accident under any of the following circumstances:
(1) driving a motor vehicle after drinking or taking drugs;
(2) driving a motor vehicle without driving qualification;
(three) driving a motor vehicle knowing that the safety device is incomplete or the safety components are out of order;
(4) Driving while knowing that it is an unlicensed or scrapped motor vehicle;
(five) serious overload driving;
(six) to escape from the scene of the accident in order to escape legal investigation.
Other particularly bad situations.
Other particularly bad circumstances refer to any of the following circumstances:
(1) If two or more people are killed or five or more people are seriously injured, they shall be fully or mainly responsible for the accident;
(2) more than 6 people were killed and were equally responsible for the accident;
(3) Causing direct losses to public property or other people's property, taking full or main responsibility for the accident, and unable to compensate for the amount of more than 600,000 yuan.
According to article 133 of the Criminal Law, those who commit traffic accidents shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever escapes after a traffic accident or has other particularly bad circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years;
Those who escape and cause death shall be sentenced to fixed-term imprisonment of more than 7 years (a few sentenced to 15 years).
Article 6 Where an actor hides or abandons the victim after a traffic accident to avoid legal investigation, resulting in the death or serious disability of the victim, he shall be convicted and punished for intentional homicide or intentional injury in accordance with the provisions of Article 232 and Article 234, paragraph 2, of the Criminal Law respectively.
Third, the difference between traffic accident crime and other crimes.
The difference between intentional homicide and intentional homicide.
The difference between the crime of causing traffic accidents (causing death by escaping) and the crime of intentional homicide is that if the perpetrator hides or abandons the victim after taking him away from the scene of the accident in order to avoid legal investigation, so that the victim dies or is severely disabled without help, he should be convicted and punished for the crime of intentional homicide or intentional injury respectively. The main points of difference: the crime of traffic accident (death caused by escape) only has negative non-rescue behavior; And intentional homicide or injury. (1) has positive behavior, will the victim? Take away? ① Hidden or abandoned after the scene of the accident; (2) As a result, the victim can't get help, and because of abandonment and hiding, the victim is in a helpless situation. Note that if this situation can't prove direct intention, what if it doesn't actually happen? Death or disability? As a result, it should not be punished according to the crime of attempted intentional homicide or intentional injury.
And the crime of endangering public safety by dangerous means.
The difference between the crime of causing traffic accidents and the crime of endangering public safety by dangerous means lies in that whoever intentionally kills or injures many people in public places by driving into people should be convicted of endangering public safety by dangerous means. In addition, those who intentionally kill or injure a specific person by driving should be convicted and punished for intentional homicide and intentional injury.
Difference from other negligent crimes
The point is to determine the basis of responsibility, isn't it? Traffic management regulations? . Where are the special motor vehicles, engineering vehicles and military vehicles in factories and mines? Within the scope of public transport management? If a major traffic accident occurs due to violation of traffic rules, it shall be punished according to the crime of traffic accident. Those who fall outside the scope of public traffic management and do not cause personal injury or property loss due to violation of traffic rules, which constitutes a crime, shall be convicted and punished according to Articles 134 (crime of major accidents), 135 (crime of major engineering safety accidents), 233 (crime of causing death by negligence) and 436 (crime of causing accidents with weapons and equipment) of the Criminal Law respectively.
Other preventive measures
Article 77 of the new Road Traffic Management Law stipulates that if the traffic management department of the public security organ receives a report of an accident when a vehicle passes outside the road, it shall be handled with reference to the relevant provisions of this law? This provision expands the scope of determining accident liability by applying traffic rules, and correspondingly expands the scope of traffic accident crime. Therefore, no matter where the vehicle accident occurs, as long as the traffic management department applies the traffic safety law to determine the responsibility for the accident and thinks that it constitutes a crime, it will be punished according to the crime of causing traffic accidents. If the traffic safety law is not applicable or cannot be applied to determine the liability of the accident vehicle, it can be punished as other crimes. Generally speaking, if the relevant safety production laws and regulations are applied to determine the responsibility, it will be punished by the crime of major liability accident; Those who apply common sense of life to identify responsibility can only be convicted and punished for the crime of negligent death and negligent serious injury.
Traffic accident crime agent @20 19