“毒驾”行为刑法规制探析——以《刑法修正案(九)》第七条为中心

An Analysis of the Regulation on Drug Driving in Criminal Law——Taking Title Ⅶ of the Criminal Law Amendment(ix) as the Focus

近年来吸毒驾驶案件频发,在《刑法修正案(九)》实施后,对"吸毒驾驶"纳入刑法规制的讨论再次兴起。"毒驾"行为是否应当入刑及入刑后以哪种罪定罪处罚等问题存在争议,结合毒驾入刑的现实根据和理论根据,以风险刑法理论、严而不厉的刑事政策、原因中的自由行为论及客观归责理论为基础予以分析,呼吁在今后的刑法修正案中应将"毒驾"行为纳入危险驾驶罪中予以规制,并采取"零容忍"的认定标准,在实践中除常规的检测方法外可采取血液检测方法。

A heated discussion on the regulation on drug driving rises again after the implementation of Criminal Law Amendment( ix) in response to the frequent drug driving cases in recent years. There is a controversy over whether drug driving should be regarded as a criminal behavior and which sort of crime should be adopted for punishment. Taking both realistic practice and theoretical foundation into consideration,this paper tries to analyze this issue form the theory of risk criminal law,the strict but not severe criminal policy,the theory of action liberal in cause and the theory of objective imputation. It is suggested that future amendments to the criminal law should include drug driving into the crime of dangerous driving and adopt an identification criteria of zero tolerance. In actual practice,blood check could be employed as a detection method to complement the traditional methods.