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Guiding Case No. 32: Case of Dangerous Driving by Zhang and Jin (case of dangerous driving)
指导案例32号:张某某、金某危险驾驶案
【法宝引证码】

Guiding Case No. 32: Case of Dangerous Driving by Zhang and Jin

 

指导案例32号:张某某、金某危险驾驶案

(Issued on December 18, 2014 as adopted by the Judicial Committee of the Supreme People's Court)         (最高人民法院审判委员会讨论通过 2014年12月18日发布)

Guiding Case No. 32 指导案例32号
Keywords: 关键词
criminal; crime of dangerous driving; motor vehicle racing; serious circumstances    刑事 危险驾驶罪 追逐竞驶 情节恶劣
Key Points of Judgment         裁判要点
1. Where a motor vehicle driver passes through roads driving vehicles in twists and turns and races other vehicles at a high speed for competitive racing, pursuit of excitement, grudge, or other motives, it falls under the circumstances of “motor vehicle racing” as provided in Article 133A of the Criminal Law of the People's Republic of China.        1.机动车驾驶人员出于竞技、追求刺激、斗气或者其他动机,在道路上曲折穿行、快速追赶行驶的,属于《中华人民共和国刑法》第一百三十三条之一规定的“追逐竞驶”。
2. Although the motor vehicle racing does not cause any personal injury or property damage, such behaviors that seriously violate the Road Traffic Safety Law as driving at a speed exceeding the prescribed limit, running the red light, forcible overtaking, and resisting traffic law enforcement are sufficient to threaten the lives and property safety of other persons after being taken into full account. Therefore, such behaviors fall under “serious circumstances” in the crime of dangerous driving.         2.追逐竞驶虽未造成人员伤亡或财产损失,但综合考虑超过限速、闯红灯、强行超车、抗拒交通执法等严重违反道路交通安全法的行为,足以威胁他人生命、财产安全的,属于危险驾驶罪中“情节恶劣”的情形。
Relevant Legal Provisions         相关法条
Article 133A of the Criminal Law of the People's Republic of China 中华人民共和国刑法》第一百三十三条之一
Basic Facts         基本案情
Around 20:20 on February 3, 2012, the defendants surnamed Zhang and Jin made an appointment to enjoy the excitement brought by driving high-power motorcycles and they promised that “the crossing of Lujiabang Road and Henan South Road is the destination and who arrives first will wait for the other.” Afterwards, Zhang drove a Honda high-power two-wheeled motorcycle without a license plate (which has been modified) and Jin drove a Yamaha high-power two-wheeled motorcycle with a fake license plate (which has been modified), departed from No. 99 Leyuan Road in Pudong New District, Shanghai Municipality, turned round at the crossing of Yanggao Road and Jufeng Road, and then drove along Yanggao Road from north to south. They drove along Nanpu Bridge, got off the Bridge on Lujiabang Road, and returned to Zhang's residence along Henan South Road via Fuxing East Road tunnel and Zhangyang Road. The whole course was 28.5 km and there were multiple bus stations, communities, schools, and large supermarkets along the course. During driving, both defendants repeatedly changed lanes and passed through the congested traffic in twists and turns, ran the red light, and significantly drove exceeding the speed limit. When arriving at the crossing of Lujiabang Road and Henan South Road, Zhang and Jin ran into police officers on duty. Then, they drove along Henan South Road and escaped from the Fuxing East Road tunnel and Zhangyang Road. In particular, on the flyover of Yanggao South Road and Pujian Road (with a speed limit of 60 km/h), Zhang drove at a speed of 115 km/h and Jin drove at a speed of 98 km/h; on the bridge floor of the Nanpu Bridge (with a speed limit of 60 km/h), Zhang drove at a speed of 108 km/h and Jin drove at a speed of 108 km/h; on the exit ramp of the Lujiabang Road approach bridge for the Nanpu Bridge (with a speed limit of 40 km/h), Zhang drove at a speed greater than 59 km/h and Jin drove at a speed greater than 68 km/h; and in the Fuxing East Road tunnel (with a speed limit of 60 km/h), Zhang drove at a speed of 102 km/h and Jin drove at a speed of 99 km/h.         2012年2月3日20时20分许,被告人张某某、金某相约驾驶摩托车出去享受大功率摩托车的刺激感,约定“陆家浜路、河南南路路口是目的地,谁先到谁就等谁”。随后,由张某某驾驶无牌的本田大功率二轮摩托车(经过改装),金某驾驶套牌的雅马哈大功率二轮摩托车(经过改装),从上海市浦东新区乐园路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、张杨路回到张某某住所。全程28.5公里,沿途经过多个公交站点、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、大幅度超速行驶。当行驶至陆家浜路、河南南路路口时,张某某、金某遇执勤民警检查,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)张某某行驶速度115km/h、金某行驶速度98km/h;在南浦大桥桥面(限速60km/h)张某某行驶速度108km/h、金某行驶速度108km/h;在南浦大桥陆家浜路引桥下匝道(限速40km/h)张某某行驶速度大于59km/h、金某行驶速度大于68km/h;在复兴东路隧道(限速60km/h)张某某行驶速度102km/h、金某行驶速度99km/h。
Around 21:00 on February 5, 2012, the defendant surnamed Zhang was apprehended. He truthfully confessed the aforesaid facts and provided the mobile phone number of the defendant surnamed Jin to the public security authority. After receiving the telephone notification from the public security authority, Jin voluntarily surrendered himself and truthfully confessed the aforesaid facts.         2012年2月5日21时许,被告人张某某被抓获到案后,如实供述上述事实,并向公安机关提供被告人金某的手机号码。金某接公安机关电话通知后于2月6日21时许主动投案,并如实供述上述事实。
Judgment         裁判结果
On January 21, 2013, the People's Court of Pudong New District, Shanghai Municipality rendered a criminal judgment (No. 4245 [2012], First, Criminal Division, Pudong) that: the defendant surnamed Zhang should be sentenced to a detention of four months with four-month probation and a fine of 4,000 yuan shall be imposed on him for the crime of dangerous driving; and the defendant surnamed Jin should be sentenced to a detention of three months with three-month probation and a fine of 3,000 yuan shall be imposed on him. After the judgment was pronounced, neither defendant appealed and the judgment has come into force.         上海市浦东新区人民法院于2013年1月21日作出(2012)浦刑初字第4245号刑事判决:被告人张某某犯危险驾驶罪,判处拘役四个月,缓刑四个月,并处罚金人民币四千元;被告人金某犯危险驾驶罪,判处拘役三个月,缓刑三个月,并处罚金人民币三千元。宣判后,二被告人均未上诉,判决已发生法律效力。
Judgment's Reasoning         裁判理由
In the effective judgment, the court held that: Paragraph 1 of Article 133A of the Criminal Law of the People's Republic of China provides that “it constitutes a crime of dangerous driving where a party races a motor vehicle on a road with serious circumstances.” “Motor vehicle racing” as prescribed in the Criminal Law generally refers to the activity conducted for competitive racing, pursuit of excitement, grudge, and other motives, two or more persons race motor vehicles at a high speed on the road in violation of road traffic safety regulations. In this case, from the perspective of subjective driving mentality, the defendant surnamed Zhang confessed that “he desires some pleasure and excitement” and “he was psychologically satisfied when passing through and overtaking vehicles on the road”; Jin confessed that in front of a red light, “he feels uncomfortable if he puts on the brake and thus he overtakes every vehicle” and “if there is a vehicle ahead, he will change the lane, drive in twists and turns, and then overtake the vehicle.” The confessions of both defendants and the relevant audio-visual materials were mutual corroborative, which may reflect their competitive racing mentality of pursuing excitement and showing off driving skills. From the perspective of objective behaviors, both defendants drove modified motorcycles with high powers that exceeded the prescribed standard and committed such serious violations as change of lanes at will, running the red light, and speeding significantly. From the perspective of the driving route, both defendants jointly departed from No. 99 Leyuan Road, Pudong New District and arrived at the crossing of Lujiabang Road and Henan South Road to pick somebody up and they agreed on both the starting point and the destination of this motor vehicle racing. In conclusion, it may be determined that the behaviors of both defendants were “motor vehicle racing” in the crime of dangerous driving.         法院生效裁判认为:根据《中华人民共和国刑法》第一百三十三条之一第一款规定,“在道路上驾驶机动车追逐竞驶,情节恶劣的” 构成危险驾驶罪。刑法规定的“追逐竞驶”,一般指行为人出于竞技、追求刺激、斗气或者其他动机,二人或二人以上分别驾驶机动车,违反道路交通安全规定,在道路上快速追赶行驶的行为。本案中,从主观驾驶心态上看,二被告人张某某、金某到案后先后供述“心里面想找点享乐和刺激”“在道路上穿插、超车、得到心理满足”;在面临红灯时,“刹车不舒服、逢车必超”“前方有车就变道曲折行驶再超越”。二被告人上述供述与相关视听资料相互印证,可以反映出其追求刺激、炫耀驾驶技能的竞技心理。从客观行为上看,二被告人驾驶超标大功率的改装摩托车,为追求速度,多次随意变道、闯红灯、大幅超速等严重违章。从行驶路线看,二被告人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,约定了竞相行驶的起点和终点。综上,可以认定二被告人的行为属于危险驾驶罪中的“追逐竞驶”。
As for whether the behaviors of both defendants in this case were “serious circumstances,” a comprehensive analysis on whether the threats to road traffic order, lives of the unspecific public, and property safety were “serious” should be conducted from such aspects as the specific performance, extent of injury, and harmful consequences caused by the motor vehicle racing. In this case, although both defendants' behaviors of motor vehicle racing did not cause causalities or property losses, such behaviors had “serious circumstances” in the crime of dangerous driving as analyzed on the basis of the following circumstances: first, in terms of vehicles driven, both defendants drove high-power modified motorcycles without a license plate or with a fake license plate; second, in terms of the driving speed, the overall driving speed was very fast and both defendants drove motorcycles at a speed that exceeded the prescribed speed limit by more than 50% in most sections; third, in terms of the driving patterns, they repeatedly changed lanes, passed through vehicles ahead, and ran the red light for multiple times; fourth, in terms of the attitude towards law enforcement, they escaped by driving when being interrogated and examined by police officers; and fifth, in terms of the driving route, Yanggao Road, Zhangyang Road, Nanpu Bridge, and Fuxing East Road tunnel were all urban main roads and there were schools, bus and subway stations, residential areas, and large supermarkets in multiple sections along the route. The traffic volume was heavy and the driving distance was long. It was easy to cause a major traffic accident under the stimulus attitude of high-speed driving and the nervous mentality of avoiding the interrogation and examination of police officers. The aforesaid behaviors caused dangers to the public traffic safety to some extent and were sufficient to threaten the lives and property safety of other persons. Therefore, it was determined that both defendants' behaviors of motor vehicle racing fell under “serious circumstances” in the crime of dangerous driving.         关于本案被告人的行为是否属于“情节恶劣”,应从其追逐竞驶行为的具体表现、危害程度、造成的危害后果等方面,综合分析其对道路交通秩序、不特定多人生命、财产安全威胁的程度是否“恶劣”。本案中,二被告人追逐竞驶行为,虽未造成人员伤亡和财产损失,但从以下情形分析,属于危险驾驶罪中的“情节恶劣”: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,从行驶速度看,总体驾驶速度很快,多处路段超速达50%以上;第三,从驾驶方式看,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离;第五,从行驶路段看,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,沿途还有多处学校、公交和地铁站点、居民小区、大型超市等路段,交通流量较大,行驶距离较长,在高速驾驶的刺激心态下和躲避民警盘查的紧张心态下,极易引发重大恶性交通事故。上述行为,给公共交通安全造成一定危险,足以威胁他人生命、财产安全,故可以认定二被告人追逐竞驶的行为属于危险驾驶罪中的“情节恶劣”。
After being apprehended, the defendant surnamed Zhang truthfully confessed to his crime and may be subject to a lighter punishment according to law. The defendant surnamed Jin surrendered himself and may also be subject to a lighter punishment according law. Considering that both defendants have realized the illegality and social harmfulness of their behaviors, promised no dangerous driving in the future, and made confessions and showed remorse for multiple times during the trial, and their behaviors have not caused personal injuries and property damage of other persons yet, the court rendered the aforesaid judgment according to law.

 被告人张某某到案后如实供述所犯罪行,依法可以从轻处罚。被告人金某投案自首,依法亦可以从轻处罚。鉴于二被告人在庭审中均已认识到行为的违法性及社会危害性,保证不再实施危险驾驶行为,并多次表示认罪悔罪,且其行为尚未造成他人人身、财产损害后果,故依法作出如上判决。
     
     
【法宝引证码】        北大法宝en.pkulaw.cn
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