危险驾驶罪的客观不法与主观罪责

Objective Wrongfulness and Subjective Culpability of Crime of Endangering Driving

危险驾驶罪情节犯之争,需要厘清"但书"规定的立法与司法、应然与实然两种关系。抽象危险犯以缓和的危险作为处罚根据。只要有类型化的行为就有危险。具体危险犯还要对规范保护的具体对象造成现实威胁。抽象危险犯类型化的程度存在不同,有时需要进行具体判断。将危险与实害并列为独立结果,会割裂对行为客观危害和不法属性的整体评价,且违背基本逻辑、常识与法理,导致技术性概念的实体化。危险驾驶的不法属性,必须着眼于其造成严重伤亡的高度盖然性。危险故意与实害故意内在一致,犯罪故意的认定应坚守传统的"实害结果本位",其主要考量因素是行为的客观风险与社会的规范要求。风险越高,要求愈甚。汽车交通的发达使得危险驾驶行为的现实风险极大地提高,但人们总是习惯于以旧的标准来评价"新"的行为。立法规定危险驾驶罪,意在排除个人自信,型塑新的交通伦理。只要有行为故意即可推定结果故意。危险驾驶造成重大或者紧迫危险或者严重伤亡时,应按以危险方法危害公共安全罪论处,不存在构成交通肇事罪的问题。

Before arguing the circumstance crime concerning endangering driving, it is necessary to clarify the relations between the rules in the proviso of the Criminal Law of PRC and its implementation, as well as its actual and desired state. Justification for punishment of abstract endangering crimes is based on moderate danger. As long as there is the typed behavior, it is dan- gerous. Judgments of specific endangering crimes are based on a real threat for the concrete object by the standardization protection. According to the different typed degree of the abstract dangerous crimes, sometimes it needs to undertake specific judgments. Regard dangerous and real harm all as the criminal results, not only will lead to separate the overall evaluation on the object harm and illegal properties of offense, but also violate the basic logic, common sense and jurisprudence, and bring about the technical concept to be the entity norms. The judgment of illegal properties of en- dangering driving should be focused on high probability to cause serious casualties. Although there is the internal consistency between endangering crime and real damage crime, the reason why ad- hering to take the real harm result standard as the affirmation of crime intentionally, because its consideration factors are the objective risk of behavior and normal requirements of society. The higher the risk is , the more requirements is needed. Advanced car traffic has raised greatly risk of endangering driving, but people always are accustomed to evaluate the behaviors by past stand- ards. The purpose of legislation of endangering driving crime is to remove individual convictions and shape new traffic ethic. The intent of result could be deduced only according to the intent to behavior. When caused major or immediate danger or heavy casualties of realistic harm, the en- dangering driving behavior should be punished as the endangering public security in dangerous ways, instead of the traffic accident crime.