However, this guidance was not found on the official website of the Supreme People's Court. Relevant criminal law experts and lawyers said in an interview with this reporter that "drunk driving into punishment" refers to bringing drunk driving into the scope of criminal law adjustment and sentencing according to the facts, circumstances, harm and consequences of the case, rather than "drunk driving into punishment". If the circumstances are obvious and minor, they will not be convicted, and if the circumstances are minor, they will not be punished, which itself exists in the relevant provisions of the current criminal law and criminal procedure law. The guidance is mentioned in the crime of dangerous driving this time, with the purpose of continuously and deeply promoting the reform of standardized sentencing, which embodies the criminal policy of combining leniency with severity.
In the long run, it is an urgent task to truly eliminate the public's concerns about "loosening drunk driving" and promote the normalization and institutionalization of sentencing standardization, with a long way to go.
"Drunk driving will be punished" ≦ "Drunk driving will be sentenced"
According to this guidance circulated on the Internet, the third point of Article 1 "Crime of Dangerous Driving" is stated as: "For the defendant who is drunk driving a motor vehicle, the degree of drunkenness of the defendant, the type of motor vehicle, the road and speed of the vehicle, whether it has caused actual damage, whether it has pleaded guilty or repented, etc. should be comprehensively considered, and accurate conviction and sentencing should be made. If the circumstances are obvious, minor and harmless, they shall not be convicted and punished; If the circumstances of the crime are minor and no penalty is required, criminal punishment may be exempted. "
The guidance also stipulates that the Higher People's Court shall formulate detailed implementation rules in light of local conditions. The pilot period is from May this year to 10 for half a year. According to the pilot situation, it will be implemented in the national courts in due course.
Some media believe that this is a signal that drunk driving is loose. Some commentators said that after these years, the concept of drinking without driving has been deeply rooted in people's hearts. "There must be good laws to govern the world", and loosening is also an improvement.
An online media titled "Is it a good thing to relax the punishment for drunk driving?" In the survey, as of May 25th, 29,455 people voted for * * * *, 53% chose "bad", 34% chose "good" and 13% chose "unclear". It can be found that more people are not in favor of loose drunk driving. People are worried that drunk driving is still difficult to treat. If it is loose, how can people's lives be guaranteed? Aren't drivers suspected of drunk driving luckier?
"This guidance is by no means to say that drunk driving is loose, but to promote the standardized reform of sentencing. In fact, drunk driving has never been loose. " Regarding the public's concern, Chen Zexian, director of the Institute of International Law of China Academy of Social Sciences and executive vice president of China Criminal Law Research Association, said in an interview with this reporter that there has always been a misunderstanding about "drunk driving into punishment" or "drunk driving into punishment", that is, it is equivalent to "drunk driving into punishment".
"The original intention of' drunk driving will be punished' is to bring drunk driving into the adjustment scope of the criminal law and impose a sentence according to the facts, circumstances, harm and consequences of the case. The circumstances mentioned in the guidance are obviously minor, not convicted and slightly exempted from punishment, which exist in the relevant provisions of the current criminal law and criminal procedure law. Many crimes, such as theft and intentional injury, have such contents, and they do not specifically refer to dangerous driving crimes. " Chen Zexian said.
"This guidance does not mean that the Supreme Law is tolerant of drunk driving, but rather implements the principle of combining leniency with severity and legality in criminal law into specific crimes." Ye, a senior partner and lawyer of Beijing Yingke Law Firm, introduced in an interview with this reporter that Article 13 of the Criminal Law stipulates that "if the circumstances are obviously minor and the harm is not great, it is not considered a crime", and Article 37 stipulates that "if the circumstances of the crime are minor and there is no need to be sentenced to punishment, criminal punishment can be exempted"; The first paragraph of Article 15 of the Criminal Procedure Law also clearly stipulates that "if the circumstances are obviously minor and the harm is not great, it is not considered a crime". Therefore, the guidance is not to relax the punishment for drunk driving, but to refer the relevant contents of criminal law and criminal procedure law to the guidance for dangerous driving crimes.
The difference between "slight" and "obviously slight"
It is worth noting that the Supreme Court official website has not officially issued this guidance. In response to this newspaper, people from the relevant departments of the Supreme Law said that relevant judicial interpretations are being formulated and it is inconvenient to respond at present. However, it is clearly mentioned in the article "The Supreme Law Further Expands the Standardized Scope of Sentencing" published in People's Court Newspaper on April 1 that the Supreme Law has formulated the Guiding Opinions on Sentencing for Joint Crimes (Trial), which includes eight types of crimes, such as dangerous driving, which are prone to occur frequently in recent years and closely related to the safety of people's lives and property.
Chen Zexian said that drunk driving and drunk driving involve many situations. Which situation should be convicted and which situation should be exempted from punishment? The local judicial organs hope that the Supreme Law can formulate clear guidance. The Guiding Opinions gives detailed guidance on how to characterize some special situations in judicial practice.
How to define special circumstances has always been a difficult problem in judicial practice of drunk driving.
Ye said that when the crime of dangerous driving was introduced in 20 1 1 (marked by the National People's Congress Standing Committee (NPCSC)'s adoption of the Criminal Law Amendment (VIII)), it coincided with the period when the Hangzhou drag racing case and the Chang 'an Street drunk driving case caused great social impact, and various localities launched special crackdowns on dangerous driving behaviors, especially drunk driving, and the judicial trial was relatively strict, so the public had a kind of "drunk driving must be punished".
The effect of dealing with drunk driving is obvious. According to the data, in the past five years, the illegal acts of drunk driving motor vehicles investigated and dealt with by public security organs nationwide have decreased by 34%, 20 1 1. However, in judicial practice, there are also some "minor circumstances" due to problems in the judgment criteria, such as "moving a car in a parking lot after drinking and being convicted of dangerous driving" and "getting drunk at night and being found drunk the next day".
It is precisely to standardize these "minor cases" that the guiding opinions put forward that for defendants who are drunk driving and maneuvering, the defendant's drunkenness, motor vehicle type, vehicle driving road, driving speed, whether actual damage has been caused, confession and repentance should be comprehensively considered, and accurate conviction and sentencing should be made. If the circumstances are obvious and minor, they will not be convicted, and if the circumstances are minor, they will not be punished.
So, what is a "minor" plot and what is an "obviously minor" plot?
"From my experience in handling criminal cases, it is more meaningful to consider whether the subjective intention and objective harm of the actor are slight." Ye said that the harmful consequences of behavior guided by obvious malice and behavior guided by less malice are completely different. In terms of subjective intention, we should consider the reasons for the actor's drunk driving. For example, there is a clear difference between a drunk driver who thinks he is good at driving and has a large amount of alcohol, and driving in response to emergencies. The latter should be considered as slight subjective malice. In terms of objective hazards, besides property losses and personal injuries that are easy to quantify, objective threats should also be considered. For short-distance, sporadic and open-air driving, it should be considered as minor. "The recent Guangzhou doctors drunk driving and moving cars is such a situation."
"It should be noted that whether the circumstances are minor requires comprehensive evaluation and evidence support. Drunk driving and impunity will inevitably account for a very small proportion in future judicial practice. Drunk drivers who are lucky and desperate will only lose the opportunity to be given a lighter punishment. " Ye said.
Establish and improve the evaluation and supervision system.
At present, the public is very worried that this "slight" opening of drunk driving punishment will become a hotbed of corruption and an excuse for some unscrupulous drivers to be lucky.
"This enlightens us that it is very important to promote the normalization and institutionalization of sentencing standardization." Chen Zexian said that the law gives judges certain discretion in sentencing. For drunk driving and drunk driving, the judge can decide how to deal with it according to the provisions of the criminal law and relevant judicial interpretations. This is the judge's right. At the same time, a systematic supervision mechanism must be established.
Ye believes that the evaluation system and supervision system of law enforcement fairness should be established and improved as soon as possible. On the one hand, strengthen internal self-examination and superior supervision of judicial organs to prevent rent-seeking behavior of power. He suggested the establishment of an interactive promotion mechanism for litigants. When the litigants raise questions about the trial and judgment, the judicial organ shall give a positive answer. If people who have experienced it personally can be persuaded by judicial trials, the negative evaluation of society will naturally decrease.
On the other hand, we should also strengthen the supervision responsibility of the media and society. Ye believes that the lack of communication between the judiciary and the public is one of the reasons why the public thinks that justice is unfair. Therefore, judicial organs should dare to accept the supervision of all sectors of society, face up to doubts, and at the same time should not avoid correcting misjudged cases.
"In the traditional culture of China, there are sayings of" ruling the country by virtue "and" emphasizing law in troubled times ". In a modern society ruled by law, both "attaching importance to law" and "neglecting law" must be good laws, which conform to the principle of fairness and justice of law. Only by letting the law enforcement of each case be carried out in the sun can we truly eliminate the worries of the public. " Chen Zexian said.