论危险驾驶罪的主观罪过——以《刑法》第十四、十五条为切入点的分析

The Subjective Crime of Dangerous Driving:An Analysis Based on the 14th and 15th Articles of Criminal Law

对于《刑法》第一百三十三条之一的危险驾驶罪主观罪过认定,一些学者基于各自的理解,构建了相应理论,但均无法自圆其说。笔者以《刑法》第十四、十五条为切入点,指出争议的根本症结是对主观罪过理论的不同理解;争议的实质是违背《刑法》总则精神来构建理论;认定的难点是该罪罪过处于间接故意与过于自信过失之间的游离状态。鉴于该罪罪过之性状,可行之路径是切实恪守罪过形式的"一元性"原则,以危害结果为考量点,并结合所掌握的证据进行具体分析。唯此,才能既贯彻宽严相济的刑事政策,也能彰显人权保障的精神。

Many researchers have constructed corresponding theories based on their own understanding on the subjective crime of dangerous driving in the 133rd article of criminal law;however all of which are unable to be justified.The author takes the 14th and 15th articles of the criminal law as the starting point,noting that the fundamental crux of the dispute lies in different understandings of the theory of subj ective crime.The essence of the dispute is the construction of theory contrary to the general principles of the criminal law;the difficulty of crime determination is due to the free state of the crime between indirect intentional faults and self-confidence fault.Given the characteristics of the crime,the feasible path is to strictly follow the sole principle of crime forms,take the result of the crime into consideration,and analyze the specific case based on proofs.Only in this way can we implement the criminal policy of combining punishment with leniency,but also guarantee human rights.