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People's Procuratorate of Pudong New District of Shanghai Municipality v. Zhang Jiwei and Jin Xin (Case of dangerous driving)
上海市浦东新区人民检察院诉张纪伟、金鑫危险驾驶案
【法宝引证码】
  • Type of Dispute: Criminal-->Endangering Public Security
  • Legal document: Judgment
  • Judgment date: 01-14-2013
  • Procedural status: Trial at First Instance
  • Source: SPC Gazette,Issue 12,2013

People's Procuratorate of Pudong New District of Shanghai Municipality v. Zhang Jiwei and Jin Xin (Case of dangerous driving)
(Case of dangerous driving)
上海市浦东新区人民检察院诉张纪伟、金鑫危险驾驶案
[核心术语]
危险驾驶;情节恶劣;公共安全
[争议焦点]
1.在危险驾驶罪中,应当如何理解和适用“情节恶劣”这一法定构成要件?
[案例要旨]
根据《中华人民共和国刑法》第一百三十三条的规定,行为人在道路上驾驶机动车追逐竞驶,情节恶劣的,依法构成危险驾驶罪。因此,危险驾驶罪的法定构成要件包括道路上驾驶、追逐竞驶、情节恶劣。前两者属于客观行为,认定起来较为容易,对于“情节恶劣”则需要结合具体案件情况予以分析。法律规定的“情节恶劣”,一般需结合行为人是否有驾驶资格、是否改装大功率车辆及有无合法号牌、是否大幅度超速、是否在密集路段竞驶、是否多次多人竞驶、是否引发事故及恐慌、是否抗拒或躲避执法、是否有饮酒或吸毒等导致控制力下降行为等因素综合判断,其核心应当是该追逐竞驶行为是否导致公共交通安全处于危险状态之下。
People's Procuratorate of Pudong New District of Shanghai Municipality v. Zhang Jiwei and Jin Xin (Case of dangerous driving) 上海市浦东新区人民检察院诉张纪伟、金鑫危险驾驶案
[Judgment Abstract] 【裁判摘要】
In accordance with the provision of Article 133A of the Criminal Law of the People's Republic of China, whoever races a motor vehicle on a road with execrable circumstances shall be convicted and punished for the crime of dangerous driving. 根据《中华人民共和国刑法》第一百三十三条之一的规定,行为人在道路上驾驶机动车追逐竞驶,情节恶劣的,以危险驾驶罪定罪处罚。
BASIC FACTS 
Public prosecution organ: People's Procuratorate of Pudong New District of Shanghai Municipality 公诉机关:上海市浦东新区人民检察院。
Defendant: Zhang Jiwei (nickname: Little Sun), male, 23, Han ethinicity, junior college education, medical representative of a company, domiciled at Jiangpu Road, Yangpu District, Shanghai, and released on bail on February 6, 2012, to await trial of this case. 被告人:张纪伟(绰号“小太阳”),男,23岁,汉族,大专文化,某公司医药代表,住上海市杨浦区江浦路。因本案于2012年2月6日被取保候审。
Defendant: Jin Xin (nickname: Camel), male, 29, Han ethnicity, college education, self-employed, domiciled at Chuansha New Town, Pudong New District, Shanghai, and released on bail on February 7, 2012, to await trial of this case. 被告人:金鑫(绰号“骆驼”),男,29岁,汉族,大学文化,自由职业,住上海市浦东新区川沙新镇。因本案于2012年2月7日被取保候审。
The People's Procuratorate of Pudong New District of Shanghai Municipality instituted public prosecution against defendants Zhang Jiwei and Jin Xin in the People's Court of Pudong New District of Shanghai Municipality for the crime of dangerous driving. 上海市浦东新区人民检察院以被告人张纪伟、金鑫犯危险驾驶罪,向上海市浦东新区人民法院提起公诉。
According to the charging document, at around 20:20 on February 3, 2012, defendants Zhang Jiwei and Jin Xin met as planned at the Mingxin Racing Service Store located at 99 Leyuan Road, Pudong New District, Shanghai. Later, Zhang Jiwei and Jin Xin, respectively driving an unlicensed HONGDA 1000CC high-power two-wheeled motorcycle and a YAMAHA high-power two-wheeled motorcycle with a fake plate number of Yue NL8406, left the store. They turned around at the crossing of Yanggao Road and Jufeng Road, and then drove from north to south along Yanggao Road to pick up some other persons at Lujiabang Road through Nanpu Bridge. On the way, Zhang Jiwei and Jinxin, for the excitement of driving a high-power two-wheeled motorcycle, exceeded the speed limit at multiple road sections, ran red lights at several crossings, zigzagged to change lanes and surpass other vehicles, in order to show off their driving skills. At the crossing of Lujiabang Road and South Henan Road, Zhang Jiwei and Jin Xin encountered a checkpoint set up by the police, and then fled by driving along South Henan Road, through East Fuxing Road Tunnel and along Zhangyang Road. They went back to the residence of Zhang Jiwei at around 21:00. Based on tip-offs and street monitoring footage, the police locked Zhang Jiwei as a major criminal suspect. At around 21:00 on February 5, 2012, the police captured Zhang Jiwei at Room 5B, No. 33, Lane 1555, Qishan Road, Pudong New District, Shanghai. Zhang Jiwei truthfully confessed to the criminal facts of racing motorcycles with Jin Xin, and provided the mobile phone number of Jin Xin to the police. At around 21:00 on February 6, 2012, Jin Xin surrendered himself after answering a phone call from the police, and truthfully confessed to the above criminal facts. The public prosecution organ accused Zhang Jiwei and Jin Xin of racing motor vehicles on road with execrable circumstances, in violation of the provision of Article 133卡在了奇怪的地方A of the Criminal Law of the People's Republic of China, punishable for the crime of dangerous driving, and requested a trial of this case according to the law. 起诉书指控:2012年2月3日20时20分许,被告人张纪伟、金鑫相约在上海市浦东新区乐园路99号铭心赛车服务部碰面后,张纪伟驾驶无牌的HONGDA(本田)1000CC大功率二轮摩托车,金鑫驾驶套用粤NL8406号牌的YAMAHA(雅马哈)大功率二轮摩托车,自该车行出发,行至杨高路、巨峰路路口掉头后,沿杨高路由北向南行驶,经南浦大桥至陆家浜路接人。行驶途中,张纪伟、金鑫为了追求驾驶大功率二轮摩托车的刺激,在多处路段超速行驶,在多个路口闯红灯行驶,曲折变道超越其他车辆,以此相互显示各自的驾车技能。当行驶至陆家浜路、河南南路路口时,张纪伟、金鑫遇执勤民警检查,遂驾车沿河南南路经复兴东路隧道、张杨路逃离,并于当晚 21时许驾车回到张纪伟住所。民警接群众举报后,通过调取街面监控录像,锁定张纪伟重大犯罪嫌疑。2012年2月5日21时许,民警在上海市浦东新区栖山路1555弄33号5B室将张纪伟抓获到案,张纪伟如实交代其伙同金鑫追逐竞驶的犯罪事实,并向民警提供了金鑫的手机号码。2012年2月6日21时许,金鑫接公安机关电话后投案自首,如实供述上述犯罪事实。公诉机关认为,张纪伟、金鑫在道路上驾驶机动车追逐竞驶,情节恶劣,其行为均已触犯《中华人民共和国刑法北大法宝,版权所有》第一百三十三条之一之规定,应当以危险驾驶罪追究刑事责任,依法提请审判。
Defendants Zhang Jiwei and Jin Xin raised no objection to the above charges during the court hearing. 被告人张纪伟、金鑫在庭审中对上述指控无异议。
The People's Court of Pudong New District of Shanghai Municipality, as the court of first instance, found that: 上海市浦东新区人民法院一审查明:
At around 20:20 on February 3, 2012, defendants Zhang Jiwei and Jin Xin planned to drive motorcycles to “pick up some other persons and drive around” and “enjoy the excitement of the world's top high-power motorcycles.” They agreed that “whoever first reaches the destination, the crossing of Lujiabang Road and South Henan Road, will wait for the other.” Later, Zhang Jiwei and Jin Xin, respectively driving an unlicensed HONGDA 1000CC high-power two-wheeled motorcycle (retrofitted) and a YAMAHA high-power two-wheeled motorcycle with a fake plate number of Yue NL8406 (retrofitted), departed from the store located at 99 Leyuan Road, Pudong New District. They turned around at the crossing of Yanggao Road and Jufeng Road, and then drove from north to south along Yanggao Road. They left Nanpu Bridge to Lujiabang Road, and went back to the residence of Zhang Jiwei by driving along South Henan Road, through East Fuxing Road Tunnel and along Zhangyang Road. In the whole ride of 28.5 kilometers, they passed by multiple bus stations, residential areas, schools, and supermarkets, and, regardless of heavy traffic, repeatedly changed lanes in zigzag, ran red lights, and greatly exceeded the speed limit. At the crossing of Lujiabang Road and South Henan Road, Zhang Jiwei and Jin Xin encountered a checkpoint set up by the police, and then fled by driving along South Henan Road, through East Fuxing Road Tunnel and along Zhangyang Road. At the South Yanggao Road and Pujian Road Interchange (with a speed limit of 60km/h), Zhang Jiwei drove at 115km/h, and Jin Xin drove at 98km/h; on the bridge deck of Nanpu Bridge (with a speed limit of 60km/h), Zhang Jiwei drove at 108km/h, and Jin Xin drove at 108km/h; at the exit ramp of the Lujiabang Road bridge approach of Nanpu Bridge (with a speed limit of 40km/h), Zhang Jiwei drove at a speed over 59km/h, and Jin Xin drove at a speed over 68km/h; and in the East Fuxing Road Tunnel (with a speed limit of 60km/h), Zhang Jiwei drove at 102km/h, and Jin Xin drove at 99km/h. 2012年2月3日20时20分许,被告人张纪伟、金鑫相约驾驶摩托车出去“接人、跑跑路”、“享受这种大功率世界顶级摩托车的刺激感”,双方讲好“陆家浜路、河南南路路口是目的地,谁先到谁就等谁”,随后,由张纪伟驾驶无牌的HONGDA(本田) 1000CC大功率二轮摩托车(经过改装),金鑫驾驶套用粤NL8406号牌的YAMAHA(雅马哈)大功率二轮摩托车(经过改装)从浦东新区乐园路99号车行出发,行至杨高路、巨峰路路口掉头沿杨高路由北向南行驶,经南浦大桥到陆家浜路下桥,后沿河南南路经复兴东路隧道、张杨路回到张纪伟住所,全程28.5公里,途经多个公交站点、居民小区、学校和大型超市,在行驶途中,二被告人驾车在密集车流中反复并线、曲折穿插、多次闯红灯、大幅超速行驶,当行驶至陆家浜路、河南南路路口时,张纪伟、金鑫遇执勤民警检查,遂驾车沿河南南路经复兴东路隧道、张杨路逃离。其中,在杨高南路浦建路立交(限速60km/h)张纪伟驾驶速度达115km/h、金鑫驾驶速度98km/h;在南浦大桥桥面(限速60km/h)张纪伟驾驶速度达108km/h、金鑫驾驶速度达108km/h;在南浦大桥陆家浜路引桥下匝道 (限速40km/h)张纪伟驾驶速度大于59km/h、金鑫驾驶速度大于68km/h;在复兴东路隧道(限速60km/h)张纪伟驾驶速度102km/h、金鑫驾驶速度99km/h。
After being captured at around 21:00 on February 5, 2012, Zhang Jiwei truthfully confessed to the above criminal facts, and provided the mobile phone number of Jin Xin to the police. At around 21:00 on February 6, 2012, Jin Xin surrendered himself after answering a phone call from the police, and truthfully confessed to the above criminal facts. 2012年2月5日21时许,被告人张纪伟被抓获到案后,如实供述上述事实,并向公安机关提供被告人金鑫的手机号码。金鑫接公安机关电话通知后于2012年2月6日21时许主动投案,并如实供述上述事实。
The above facts were sufficiently proved by evidence adduced and cross-examined in court, including but not limited to the testimony of witness Yuan Yijia; the testimony and identification transcript of witness Wang Mingzhou; the driver's licenses and road-worthiness certificates for the motor vehicles involved in this case; the results of search for driver information; the street monitoring footage, screenshots, and statement issued by police; the identification report issued by the Shanghai Road Traffic Accident Identification Center; the case work and process of capture; the uniform sales invoices of motor vehicles, photos of the motorcycles, information on the ordinary motorcycle of Yue NL8406, detailed history of the motorcycles, and reply of the Traffic Unit of the Public Security Bureau of Lufeng City to investigation through correspondence; and the confessions and household registration data of two defendants. 上述事实,有经庭审举证、质证的证人袁艺佳的证言,证人王明周的证言及辨认笔录,涉案机动车驾驶证、行驶证、驾驶人信息查询结果,街面监控录像、截图及公安机关出具的情况说明,上海市道路交通事故鉴定中心鉴定书,工作情况、抓获经过,机动车销售统一发票及车辆照片、普通摩托车粤NL8406车辆信息、车辆产品历史详细信息、陆丰市公安局交通警察大队出具的函调回复,二被告人供述及其户籍资料等证据证实,足以认定。
DISPUTED ISSUES 
The arguments in this case focused on how to understand and determine “racing a motor vehicle on a road with execrable circumstances” as mentioned in Article 133A of the Criminal Law of the People's Republic of China. 本案的争议焦点是:如何理解和认定《中华人民共和国刑法》第一百三十三条之一规定的“在道路上驾驶机动车追逐竞驶,情节恶劣”。
JUDGMENT'S REASONING 
The People's Court of Pudong New District of Shanghai Municipality, as the court of first instance, held that: 上海市浦东新区人民法院一审认为:
According to the provision of Article 133A of the Criminal Law of the People's Republic of China, whoever raced a motor vehicle on a road with execrable circumstances committed the crime of dangerous driving. Racing a motor vehicle on a road constituted the crime of dangerous driving if the statutory conditions of “racing” and “execrable circumstances” were met, in addition to the condition of “driving a motor vehicle on a road.” 根据《中华人民共和国刑法》第一百三十三条之一的规定,行为人在道路上驾驶机动车追逐竞驶,情节恶劣的,依法构成危险驾驶罪。对于因在道路上驾驶机动车追逐竞驶构成危险驾驶罪的,除“在道路上驾驶机动车”的条件外,具体而言,还应符合“追逐竞驶”、“情节恶劣”的法定构成要件。
With regard to whether the acts of the defendants constituted racing, “racing a motor vehicle” in the law generally meant that two or more persons, for race, excitement, or any other purpose, respectively drove motor vehicles on a public road, an urban road, or any other road in a competitive manner, seriously compromising the public order and road traffic safety. 关于本案被告人行为是否构成追逐竞驶。法律所规定的“追逐竞驶”,一般指行为人出于竞技、追求刺激或者其他目的,二人及以上分别驾驶机动车在公共通行道路、城市道路或者其他道路上竞相行驶,严重影响公共秩序和道路交通安全的驾驶行为。
In this case, firstly, in terms of the driver's mentality, both defendants confessed after being captured that they wanted to hang out and have a joy ride together, had an itch to drive and would like to look for some fun and excitement or hadn't driven for a long time and wanted to feel the excitement of driving together, and felt comfortable, excited, and fast when driving the world's top motorcycle of this kind or felt the excitement of driving the world's top high-power motorcycle. The two defendants also confessed that they wanted to fully present their driving skills, nipped into the moving car line and overtook other cars for psychological satisfaction, believed that no harm would be done by running red lights for their driving skills, believed in their driving skills, overtook every car ahead because braking made them feel uncomfortable, passed through two cars in front of them, and changed lanes, drove in zigzag, and overtook cars whenever there was a car in front of them. These confessions were also substantiated by street monitoring footage, and may prove the two defendants' racing mentality of pursuing excitement and showing off driving skills. 具体到本案中,首先,从主观驾驶心态上看,二被告人到案后先后供述“一起出去晃晃、兜兜、跑跑路”,后又先后具体分别供述“自己手痒,心里面想找点享乐和刺激”、“有段时间没开过了,手痒、心里要感受驾驶这种车辆的快感,所以就一起驾车去了”、“开这种世界顶级摩托车心里感到舒服、刺激、速度快”、“享受这种大功率世界顶级摩托车的刺激感”。同时,二被告人又分别供述“只管发挥自己的驾车技能”、“在道路上穿插、超车、得到心理满足”、在面临红灯时“相信自己的操控车辆的技能闯过去不会出事”、“相信的自己的驾车技能”、“刹车不舒服、逢车必超”、“从前面两辆车的夹缝穿过去”、“前方有车就变道曲折行驶再超越”。上述供述亦得到街面监控的印证,可以反映出二被告人在本案中追求刺激、显示驾驶技能的竞技心理。
Secondly, in terms of the driving route, both defendants confessed that they departed from the store located at 99 Leyuan Road, Pudong New District to pick up some other persons at the crossing of Lujiabang Road and South Henan Road and “whoever arrives first will wait for the other,” as corroborated by the testimony of witness Yuan Yijia and street monitoring footage. It could be determined that they had agreed on the start and destination of racing motor vehicles. 其次,从行驶路线上看,二被告人均供述行驶路线系共同自浦东新区乐园路99号出发,至陆家浜路、河南南路路口接人,以及“谁先到、谁就等谁”,此点亦得到证人袁艺佳的证言、街面监控视频印证,可以证明二被告人共同约定了竞相行驶的起点和终点。
Thirdly, in terms of objective acts, the two defendants departed from a racing service store, drove retrofitted high-power motorcycles, randomly changed lanes in zigzag, ran red lights many times, and drove at a speed greatly exceeding the legal limit in pursuit of excitement, which further manifested that the two defendants drove motor vehicles on road for the purposes of racing and stimulation. These objective acts as substantiated by monitoring footage, screenshots, identification conclusions, and testimonies of witnesses were consistent with the confessions of the two defendants. Therefore, it could be determined that the acts of the two defendants constituted “racing a motor vehicle.” 再次,从客观行为上看,二被告人的出发地点系赛车服务部、驾驶的系超标大功率改装摩托车、为追求速度多次随意变道、曲折穿插、闯红灯、大幅超速严重违章等客观行为,进一步印证二被告人出于竞技、追求刺激的主观目的在道路上驾驶机动车,这些客观行为有在案的监控视频、截图、鉴定结论、证人证言等证据证实,与二被告人多次供述也相互印证。故综上,可以认定二被告人行为构成“追逐竞驶”。
With regard to whether the acts of the defendants were with “execrable circumstances,” the determination of “execrable circumstances” in the law was generally based on a broad combination of factors including but not limited to whether the offender possessed a driver's license, had a retrofitted high-power vehicle with a legal license plate, drove at a speed greatly exceeding the legal limit, raced on dense road sections, raced with several other people many times, caused any accident or panic, resisted or evaded law enforcement, and drove under the influence of alcohol or drug or with otherwise caused decrease in control. The crux was whether the act of racing a motor vehicle menaced the public traffic safety. In this case, both of the two defendants possessed a driver's license, and whether their acts were with “execrable circumstances” should be determined based on comprehensive factors such as their driving acts and degrees of violation. Firstly, in terms of the vehicles driven, the two defendants drove retrofitted high-power motorcycles without a license plate or with a fake license plate. Secondly, in terms of driving speed, their overall driving speed was extremely fast, and they drove beyond the speed limit by more than 50% at several road sections. Thirdly, in terms of manners of driving, the two defendants repeatedly changed lanes in zigzag, nipped into moving car lines, and overtook cars in front, and ran red lights many times. Fourthly, the two defendants fled on motorcycles to evade law enforcement when they were questioned by the police. And fifthly, in terms of road sections, Yanggao Road, Zhangyang Road, Nanpu Bridge, and East Fuxing Road Tunnel on their racing route were urban main roads, overhead roads, and tunnels, all with congested traffic and dense streams of people, and there were many schools, bus and subway stations, residential areas, and supermarkets along their route. Driving at a high speed in excitement and tense to evade law enforcement could easily lead to grave traffic accidents with casualties. The above acts posed a considerable threat to the life, health, and property safety of a large number of unspecific people, and in fact menaced the public traffic safety. Therefore, it could be determined that the two defendants' acts of racing motor vehicles on roads were with “execrable circumstances.” 关于本案被告人行为是否属于“情节恶劣”。法律规定的“情节恶劣”,一般需结合行为人是否有驾驶资格、是否改装大功率车辆及有无合法号牌、是否大幅度超速、是否在密集路段竞驶、是否多次多人竞驶、是否引发事故及恐慌、是否抗拒或躲避执法、是否有饮酒或吸毒等导致控制力下降行为等因素综合判断,其核心应当是该追逐竞驶行为是否导致公共交通安全处于危险状态之下。本案中,二被告人虽然具有驾驶资格,但其行为是否属于情节恶劣,应根据其驾驶行为、违规程度的综合判断。第一,从驾驶的车辆看,二被告人驾驶的系无牌和套牌的大功率改装摩托车;第二,从驾驶的速度看,总体驾驶速度很快,多处路段超速达50%以上;第三,从驾驶的方式看,二被告人反复并线、穿插前车、多次闯红灯行驶;第四,从对待执法的态度看,二被告人在民警盘查时驾车逃避执法;第五,从行驶的路段看,途经的杨高路、张杨路、南浦大桥、复兴东路隧道等均系城市主干道及高架、隧道,沿途还有多处学校、公交及地铁站点、居民小区、大型超市等路段,均属车流和人流密集地段,在高速驾驶的刺激心态下和躲避执法的紧张心态下,极易引发重大恶性交通事故。上述行为对不特定多数人的生命健康及财产安全造成相当程度威胁,实际上将道路交通公共安全置于危险状态之下,故可以认定二被告人在道路上驾驶机动车追逐竞驶的行为属“情节恶劣”。@
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JUDGMENT 综上,被告人张纪伟、金鑫在道路上驾驶机动车追逐竞驶,情节恶劣,其行为均已构成危险驾驶罪。公诉机关指控的罪名成立。鉴于张纪伟到案后能如实供述所犯罪行,依法可以从轻处罚。鉴于金鑫系自首,依法亦从轻处罚。二被告人系共同犯罪,且系共同实施正犯,不予区分主从犯。二被告人在审理过程中均已认识到行为的违法性及社会危害性,承诺不再从事危险驾驶行为,并多次表示认罪悔罪,鉴于其行为未造成实际危害后果,综合考虑上述情节,依法适用缓刑。

In conclusion, defendants Zhang Jiwei and Jin Xin were guilty of dangerous driving for their racing motor vehicles on roads with execrable circumstances as charged by the public prosecution organ. Zhang Jiwei, who truthfully confessed to his crime upon capture, may be sentenced to a lighter punishment in accordance with the law. Jin Xin, who surrendered himself to the police, may also be sentenced to a lighter punishment in accordance with the law. Both defendants were principal offenders in the joint offence. At trial, both defendants recognized the illegality and social harmfulness of their acts, promised that they would no longer conduct dangerous driving, and pled guilty and showed repentance. In consideration of the above facts and no actual harmful consequences caused, probation was applicable in accordance with the law.

 

据此,上海市浦东新区人民法院依照《中华人民共和国刑法》第一百三十三条之一、第二十五条第一款、第五十三条、第六十七条、第七十二条、第七十三条之规定,于2013年1月14日判决如下:


Hence, in accordance with the provisions of Article 133A, paragraph 1 of Article 25, Article 53, Article 67, Article 72, and Article 73 of the Criminal Law of the People's Republic of China, the People's Court of Pudong New District of Shanghai Municipality entered the following judgment on January 14, 2013:
 

一、被告人张纪伟犯危险驾驶罪,判处拘役四个月,缓刑四个月,并处罚金人民币四千元;
(1) Defendant Zhang Jiwei, guilty of dangerous driving, should be sentenced to limited incarceration of four months with probation of four months and a fine of 4,000 yuan. 二、被告人金鑫犯危险驾驶罪,判处拘役三个月,缓刑三个月,并处罚金人民币三千元。
(2) Defendant Jin Xin, guilty of dangerous driving, should be sentenced to limited incarceration of three months with probation of three months and a fine of 3,000 yuan. 一审宣判后,被告人张纪伟、金鑫在法定期间内未提起上诉,检察机关亦未提出抗诉,判决已经发生法律效力。
After the judgment of the court of first instance was pronounced, neither of defendants Zhang Jiwei and Jin Xin appealed during the statutory period, nor did the procuratorial organ. The judgment came into force. 
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