Zhang Mingkai's Criminal Law, fifth edition, page P719: Can a serious accident be caused by using a non-motor vehicle to engage in illegal traffic and transportation? In this regard, there are positive and negative points. This book holds that if this kind of behavior occurs within the scope of public traffic management and has the nature of endangering public safety, it should be treated as this crime, otherwise it can only be regarded as other crimes. For example, riding a tricycle illegally in an urban area or on other roads with many pedestrians and motor vehicles, which causes a major traffic accident, has the nature of endangering the safety of the public, and should be regarded as the crime of causing traffic accidents. However, riding a tricycle on a road with few pedestrians and no motor vehicles, which causes serious injury or death, does not have the nature of endangering the safety of the public, and can only be identified as the crime of causing serious injury or the crime of causing death through negligence.
Lawyer Su Yifei: "Road Traffic Accident Safety Law" Article 77 If a traffic accident occurs when a vehicle passes outside the road, the traffic management department of the public security organ shall handle it with reference to the relevant provisions of this law after receiving the report. Article 119 The term "roads" as mentioned in these Measures refers to highways, urban roads and roads within the jurisdiction of the unit that allow social motor vehicles to pass, including squares, public places, parking lots and other places for public access. " Traffic accident "refers to the accident of personal injury or property loss caused by the fault or accident of the vehicle on the road.
The "road" specified in Article 13 of the Guidelines for Handling Criminal Cases of Drunk Driving Motor Vehicles by Public Security Organs in Anhui Province on December 25, 219 is defined according to Article 119, paragraph 1, of the Law of the People's Republic of China on Road Traffic Safety. The nature of the road is based on whether it is open or not: if it does not restrict the passage of vehicles, it is considered open. If the traffic of vehicles is restricted, it will be regarded as closed, and the road sections and parking lots within its scope do not belong to roads. Road.
drunk driving a motor vehicle on a rural road meets the constitutive requirements of a dangerous driving crime, which constitutes a dangerous driving crime.
(219) Notice of Anhui Higher People's Court and Anhui Provincial People's Procuratorate on Printing and Distributing the Detailed Rules for the Implementation of Two Sentencing Norms
(1) Traffic accident crime
If it constitutes a traffic accident crime, the starting point of sentencing can be determined within the corresponding range according to the following different situations. On the basis of the starting point of sentencing, the amount of punishment can be increased and the benchmark punishment can be determined according to the accident responsibility, serious injury, death or property loss, and other facts that affect the composition of the crime, such as escape.
1. The first sentencing range
If one person is killed or three people are seriously injured, the starting point of sentencing can be determined within the range of six months to one year and six months' imprisonment; Those who take full responsibility for the accident can determine the starting point of sentencing within the range of one to two years of fixed-term imprisonment.
If three people are killed, the starting point of sentencing can be determined within the range of one to two years' imprisonment.
those who have caused direct losses to the public or other people's property and are unable to compensate 45, yuan, who are mainly responsible for the accident, can determine the starting point of sentencing within the range of six months to one year and six months' imprisonment; Those who take full responsibility for the accident can determine the starting point of sentencing within the range of one to two years of fixed-term imprisonment.
a person who is seriously injured has six situations stipulated in the second paragraph of Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents (namely: (1) fleeing after a traffic accident; (2) Escaping after a traffic accident; (3) escaping after a traffic accident; (4) escaping after a traffic accident; (5) Escaping after a traffic accident; (6) escaping after a traffic accident. : driving a motor vehicle after drinking or taking drugs; Not qualified to drive a motor vehicle; Driving knowing that it is a motor vehicle with incomplete safety devices or failure of safety facilities; Driving knowingly without a license plate or a scrapped motor vehicle; Seriously overloaded driving; To escape from the scene of the accident in order to avoid legal investigation), who is mainly responsible for the accident, can determine the starting point of sentencing within the range of six months to one year and six months in prison; Those who take full responsibility for the accident can determine the starting point of sentencing within the range of one to two years of fixed-term imprisonment.
In any of the following circumstances, the corresponding penalty can be increased:
(1) If one person is killed or three people are seriously injured, and the accident is mainly responsible or fully responsible, the prison term will be increased by six months to one year for each additional person who is seriously injured.
(2) If three people died and were equally responsible for the accident, each additional person was seriously injured, and the sentence was increased by 3 months to 6 months; For every additional death, the sentence will be increased by 6 months to 1 year.
(3) If direct losses are caused to the public or other people's property, and the amount of inability to compensate is less than 45, yuan, and the accident is mainly responsible, each additional 5, yuan will be increased by one month to two months; Take full responsibility for the accident, each increase of 5 thousand yuan, an increase of 2 months to 3 months.
(4) Other circumstances that can increase the amount of punishment.
second, the second range of sentencing
the starting point of sentencing for hit-and-run traffic can be determined within the range of fixed-term imprisonment of not less than three years but not more than five years.
If two people are killed or five people are seriously injured and are mainly responsible for the accident, the starting point of sentencing can be determined within the range of fixed-term imprisonment of more than three years and less than four years; Those who take full responsibility for the accident can determine the starting point of sentencing within the range of fixed-term imprisonment of more than 4 years and less than 5 years.
if six people died and were equally responsible for the accident, the starting point of sentencing can be determined within the range of four to five years' imprisonment.
those who have caused direct losses to the public or other people's property and are unable to compensate 8, yuan, and are mainly responsible for the accident, can determine the starting point of sentencing within the range of three to four years' imprisonment; Those who take full responsibility for the accident can determine the starting point of sentencing within the range of four to five years of fixed-term imprisonment.
Under any of the following circumstances, the corresponding penalty can be increased:
(1) If a traffic accident escapes and takes full responsibility for the accident, the sentence will be increased by one year to one year and six months for each additional death; Every time one person is seriously injured, the sentence will be increased from six months to one year; If the person is mainly responsible for the accident, the sentence should be increased by nine months to one year for each additional person who dies, and by three months to six months for each additional person who is seriously injured; If this person is equally responsible for the accident, the sentence should be increased by four to five years for each additional death, and by three to six months for each additional serious injury. Those who are equally responsible for the accident will be sentenced to six months to one year for each additional death, and two to four months for each additional serious injury; If the number of deaths or serious injuries reaches the sentencing standard of this level, the starting point of sentencing shall be determined by the number of deaths, and the number of serious injuries shall be taken as the fact of increasing the penalty. If the public * * *, or other people's property is directly lost, and the amount of compensation is unable to be more than 8, yuan, those who are mainly responsible for the accident will be sentenced to one to two months' imprisonment for every 5, yuan increase; Those who take full responsibility for the accident will be sentenced to two to three months in prison for every additional 5, yuan.
(2) If two people are killed or five people are seriously injured and take full responsibility for the accident, the sentence will be increased by one year to one year and six months for each additional death; For every additional person who is seriously injured, the sentence will be increased by 6 months to 1 year; If the number of deaths or serious injuries reaches the sentencing standard of this level, the starting point of sentencing shall be determined by the number of deaths, and the number of serious injuries shall be taken as the fact of increasing the penalty.
(3) If 6 people died and were equally responsible for the accident, the prison term would be increased by 6 months to 1 year for each additional death; Every time one person is seriously injured, the sentence will be increased by 2 months to 4 months.
(4) If the company has caused direct losses to the public or other people's property, and it is unable to compensate more than 8, yuan, and bears full responsibility for the accident, the prison term will be increased by two to four months for each additional 1, yuan; Those who are mainly responsible for the accident will be sentenced to one to two months' imprisonment for each additional 1, yuan.
(5) Other circumstances that can increase the penalty.
iii. the third range of sentencing
if death is caused by escape, the starting point of sentencing can be determined within the range of fixed-term imprisonment of not less than seven years but not more than nine years. Under any of the following circumstances, the corresponding sentencing range can be increased:
(1) For every additional death, the sentence will be increased by three to five years.
(2) For each additional person who is seriously injured, the prison term will be increased by one to two years.
(3) Other circumstances that can aggravate the punishment.
4. Under any of the following circumstances (except those that have been determined as constitutive elements of a crime), the base penalty may be increased by less than 2%, but under more than one circumstance, the cumulative penalty shall not exceed 1% of the base penalty:
(1) Driving a motor vehicle after drinking alcohol or taking narcotic drugs.
(2) driving a motor vehicle without obtaining the driving qualification.
(3) driving with knowledge that it is a motor vehicle with incomplete safety facilities or faulty safety devices.
(4) knowingly driving an unlicensed or scrapped motor vehicle.
(5) serious overload driving.
(6) Traffic accidents have caused serious social impact.
(7) Other circumstances that can be severely punished.
(5) Other circumstances that can be severely punished. Under any of the following circumstances, the benchmark punishment can be reduced by less than 2%:
(1) actively rescuing others after a traffic accident.
(2) Other circumstances that can reduce the punishment.
(217) Guiding Opinions of the Supreme People's Court on Sentencing of Common Crimes
(1) Crime of causing traffic accidents
1. If the crime of causing traffic accidents is constituted, the starting point of sentencing can be determined within the corresponding range according to the following different situations:
(1) If it causes serious injury, death or heavy losses to public or private property, the starting point of sentencing can be determined within the range of fixed-term imprisonment or criminal detention of less than two years.
(2) If you hit and run in a traffic accident or have other particularly bad circumstances, you can determine the starting point of sentencing within the range of fixed-term imprisonment of not less than three years but not more than five years.
(3) If a hit-and-run traffic accident causes death, the starting point of sentencing can be determined within the range of fixed-term imprisonment of not less than seven years but not more than ten years.
second, on the basis of the starting point of sentencing, the amount of punishment can be increased and the benchmark punishment can be determined according to the size of the accident responsibility, the number of serious injuries, deaths or the amount of property losses, as well as other criminal facts that affect the composition of the crime, such as escape.
(2) the Supreme People's Court's explanation on several issues concerning the specific application of law in the trial of criminal cases of traffic accidents
Article 1 A person engaged in transportation or non-transportation has a major traffic accident in violation of traffic management regulations, and in terms of the division of responsibility for the accident, if it constitutes a crime, he shall be convicted and punished in accordance with the provisions of Article 133 of the Criminal Law.