醉驾不起诉的实践适用与体系完善——基于《关于办理醉酒危险驾驶刑事案件的意见》实施前后的实证比较

Practical Application and System Improvement of Non-Prosecution of DWI Cases--Based on the Empirical Comparison Before and After the Implementation of the Opinions of Handling Criminal Cases of Dangerous Driving While Intoxicated

醉驾不起诉存在地方标准多元、司法实践不统一等问题。实证研究发现:《关于办理醉酒危险驾驶刑事案件的意见》实施前,醉驾不起诉裁量存在地方差异显著、裁量要素不全、从重情节权重过大等问题,《关于办理醉酒危险驾驶刑事案件的意见》实施后,仅在特定情形下统一了司法执法标准,但仍未改变裁量失衡问题,以致于并未激活相对不起诉的制度效能。究其原因,《关于办理醉酒危险驾驶刑事案件的意见》采用了“但书”出罪路径,保留了“无从重情节”的规范要求以及存在部分法理依据不明的规定。为此,需要在刑事一体化视野下完善构建醉驾不起诉适用体系:一是在“起诉基础-起诉必要”结构下厘清刑事出罪体系;二是明确法定不起诉的适用条件,谨慎适用“但书”出罪,推动塑成相对不起诉的裁量理念,引导相对不起诉的合理适用。

China has utilized criminal penalties to address driving while intoxicated(DWI)cases since 2011.While this approach has notably reduced traffic accidents caused by DWI,it has also led to an increase in the number of criminal cases and the excessive number of individuals with prior criminal records.Consequently,Chinese legal theory and practice widely advocate for a reduction in the incrimination and sentencing ratio of DWI cases by employing non-prosecution measures.On December 13,2023,the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security,and the Ministry of Justice jointly issued the Opinions of Handling Criminal Cases of Dangerous Driving While Intoxicated(referred to as the Opinions),which makes specific provisions for the application of non-prosecution in DWI cases.To evaluate the practical implications of these measures,this study analyzed 21922 prosecutorial documents of DWI cases before the implementation of the Opinions and 47 prosecutorial documents of DWI cases afterward,using empirical research methods such as binary logistic regression models and one-way chi-square tests.The findings reveal significant geographic disparities in the implementation of DWI nonprosecution before the Opinions.Prosecutors often overlooked crucial factors like the timing and nature of the offense when handling DWI cases.Moreover,aggravating circumstances tended to have a greater influence on prosecution decisions than mitigating factors.It is also found that the implementation of the Opinions has helped to harmonize the judicial standards for law enforcement in DWI cases,but mainly in the application of statutory non-prosecution when the circumstances stipulated in Article 12(a)are met.In addition,the Opinions does not solve the problem of incomplete and unbalanced discretionary elements and does not activate the application of relative non-prosecution in DWI cases.The subpar outcomes of the Opinions can be attributed to several factors.Firstly,the temporary nature of the“proviso”clause only serves as a stopgap measure,potentially leading to confusion in the application of DWI non-prosecution.Secondly,the requirement of“no aggravating circumstances”complicates the imbalance between aggravating and mitigating factors.The“elemental guidance”approach hinders the effective utilization of relative non-prosecution.Lastly,parts of the jurisprudence based on the provisions of the unknown makes the DWI non-prosecution application system more confusing.Therefore,this paper contends that restructuring and enhancing the DWI non-prosecution system within the framework of criminal law integration is imperative.This entails clarifying the system of non-prosecution based on a“prosecution basis-prosecution necessity”structure,incorporating theories of crime,punishment,and prosecution discretion.Additionally,it is essential to delineate the conditions for statutory nonprosecution and to remove the application of the“proviso”clause.Promoting the concept of relative non-prosecution discretion and guiding its reasonable application are crucial.Furthermore,addressing contentious situations and ensuring logical system harmonization are paramount.