醉酒驾车肇事之主观归责:故意与过失的博弈

Drunk Driving Accident Subjective Imputation:Intentional and Negligent Game

醉酒驾车肇事的行为人在主观过错上究竟属于故意还是过失?对其进行刑事归责的主观根据何在?我国大陆刑法理论上缺乏支持,实践中亦分歧明显。以原因自由行为的讨论为前提,以责任主义为立足点,分析醉酒驾车肇事行为人刑事归责的主观根据,并对现有理论和实践中可能存在的谬误认识提出合理性怀疑,包括对该类案件如何进行主观归责作出原则性分析,甚至提出"一个主观心态可以支配一个或多个连续行为"的观点,以此得出结论,对醉酒驾车肇事的行为应当以陷入醉酒状态前的主观心态为主要根据,且适当以陷入醉酒状态之后的主观心理为辅助作综合考察,从而准确确定其肇事行为的主观归责定性根据等。

What is the content of ＂mens rea＂ lying in the mind of person in drunk-caused accident, deliberate intention or negligence, is still a problem in both theory and practice. Meanwhile,the basis for criminal responsibility in subjective respect also remains in the same situation. This essay is based on the discussion of ＂action libera in cause＂ theory, and started with the principle of ＂ co-existence＂ of ＂mens rea＂ and act. At the mean time, the essay analyzes the basis for subjective criminal responsibility and poses some reasonable doubts on certain partial understandings in theories and practices for nowadays, including putting up a principle for the judgment of ＂mens rea＂ of the person, giving out a view that one single mind could lead one or a series of successive behaviors that are in the relationship of ＂cause and effect＂ ,and concluding that the attitude before drunk should be the main line and ＂the meanwhile attitude＂ as subordinate factor in the course of judgment of subjective criminal responsibility.