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People's Procuratorate of Zhongyuan District of Zhengzhou Municipality v. Gao Zhixian and Qiao Yongjie (Case on Negligent Homicide)
郑州市中原区人民检察院诉高知先、乔永杰过失致人死亡案
【法宝引证码】

People’s Procuratorate of Zhongyuan District of Zhengzhou Municipality v. Gao Zhixian and Qiao Yongjie (Case on Negligent Homicide)
(Case on Negligent Homicide)
郑州市中原区人民检察院诉高知先、乔永杰过失致人死亡案

People's Procuratorate of Zhongyuan District of Zhengzhou Municipality v. Gao Zhixian and Qiao Yongjie
(Case on Negligent Homicide)

 

郑州市中原区人民检察院诉高知先、乔永杰过失致人死亡案

 【裁判摘要】

 幼儿教育单位的负责人明知本单位接送幼儿的专用车辆有安全隐患,不符合行车要求,而不采取必要的检修措施,仍让他人使用该车接送幼儿,以至在车辆发生故障后,驾驶人员违规操作引起车辆失火,使被接送的幼儿多人伤亡,该负责人的行为构成刑法一百三十八条规定的教育设施重大安全事故罪。
BASIC FACTS 

Public prosecution organ: People's Procuratorate of Zhongyuan District of Zhengzhou Municipality, Henan Province

 公诉机关:河南省郑州市中原区人民检察院。
Defendant: Gao Zhixian, male, 23, dwelling at Zhaoji Town, Dengzhou City, Henan Province, principal of the Yueliangchuang Kindergarten, Shiyangsi Village, Dagangliu Township, Zhongyuan District, Zhengzhou Municipality, Henan Province, arrested on June 28, 2002 被告人:高知先,男,23岁,住河南省邓州市赵集镇,系河南省郑州市中原区大岗刘乡石羊寺村月亮船幼儿园园长,2002年6月28日被逮捕。
Defendant: Qiao Yongjie, male, 19, dwelling at Guanyinsi Town, Xinzheng City, Henan Province, driver of the Yueliangchuang Kindergarten, Shiyangsi Village, Dagangliu Township, Zhongyuan District, Zhengzhou Municipality, Henan Province, arrested on June 28, 2002 被告人:乔永杰,男,19岁,住河南省新郑市观音寺镇,系河南省郑州市中原区大岗刘乡石羊寺村月亮船幼儿园司机,2002年6月28日被逮捕。
PROCEDURAL POSTURE 
The People's Procuratorate of Zhongyuan District of Zhengzhou Municipality, Henan Province instituted a public prosecution with the People's Court of Zhongyuan District of Zhengzhou Municipality, Henan Province for the negligent homicide committed by Gao and Qiao. 河南省郑州市中原区人民检察院以被告人高知先、乔永杰犯过失致人死亡罪,向河南省郑州市中原区人民法院提起公诉。
It was held in the indictment that: Gao, in his tenure as principal of the Kindergarten, was fully aware that the Kindergarten's microbus was in poor conditions and needed immediate maintenance, yet still instructed Qiao to send the kids home by this bus. On the way, as the bus's oil-way was not smooth, Qiao operated against regulations and fired the bus up consequently, with a severe consequence of 4 deaths, 2 injuries and bus destruction. Their acts violated the provisions of Article 233 of the Criminal Law of the People's Republic of China and has constituted a crime of negligent homicide, wherein Gao, thereafter, surrendered himself to justice and punishment according to law. 起诉书指控:被告人高知先在任幼儿园园长期间,明知该园的面包车车况差,急需检修,仍要求被告人乔永杰驾驶该车送儿童回家。途中因油路不畅,乔永杰违规操作,引起汽车着火,造成烧死4人、烧伤2人、烧毁汽车一辆的严重后果。高知先、乔永杰的行为触犯了《中华人民共和国刑法》第二百三十三条的规定,构成过失致人死亡罪,高知先犯罪后投案自首,请依法判处。
Gao argued that: In the very day when the accident happened, he did not ask Qiao to continue sending kids of the kindergarten by this bus. Gao's advocate alleged that: Gao could not foresee the consequence of the bus catching a fire and thereafter incurring personal injury to passengers; (2) Gao had no negligent psychology to take it for granted that this severe consequence might be avoided; and (3) There wasn't necessarily any cause-and-effect relationship between the conditions of the bus and the imperiling consequence of death and casualties. Therefore, Gao's act did not constitute any crime of negligent homicide. 被告人高知先辩称:事发当天,其没有让被告人乔永杰继续开车送幼儿园的孩子。高知先的辩护人提出:(1)高知先不可能预见到汽车会着火并造成乘员人身伤害的后果;(2)高知先更不存在轻信能够避免这种危害结果发生的过失心理状态;(3)车况不好与致人死亡的危害后果之间没有因果关系,故高知先的行为不构成过失致人死亡罪。
Qiao argued that: He was under Gao's instructions to send kids by the malfunctioned bus, which did not constitute any crime. Qiao's advocate held that: As an employee, he just had to implement the principal's order. Even if his conduct constituted a crime, it is a crime of negligently causing a serious accident only and thus Qiao shall be subject to lenient punishment with reference to Gao's crime. 被告人乔永杰辩称:其是遵照园长高知先的命令开故障车送孩子的,该行为不能构成犯罪。乔永杰的辩护人认为:乔永杰作为受雇人员,只能执行园长命令;其行为即使构成犯罪,也只能是重大责任事故罪,并且应当比照高知先的罪行从轻处罚。
The People's Court of Zhongyuan District of Zhengzhou Municipality found through hearing that: 郑州市中原区人民法院经审理查明:
On June 2, 2002, Gao took over the Yueliangchuang Kindergarten as its principal, who took charge of everything in the Kindergarten. Qiao was a driver employed by the Kindergarten. Gao, although clearly aware that the Kindergarten's Yu A55345 Songhuajiang-brand bus, whose oil-way was not smooth, was then in poor conditions and needed immediate maintenance, still asked Qiao to send kids home by this bus. At around 7 p.m. of June 14, on the way, Qiao sent the first batch of kids home, the bus malfunctioned and could not be started. Qiao was unable to send kids home and report the issue to Gao by phone call. Gao and Meng Huijun hurried to the spot by motor, and Gao, seeing that the bus could not be repaired in a while, rent a vehicle nearby and sent all the kids on board of the malfunctioned bus home and, at the same time, required Qiao and Meng to continue the repair work for other kids who were still left in the Kindergarten. Qiao and Meng conducted simple maintenance on the bus and drove back to take home the second batch of kids in the Kindergarten. On the way, as the oil-way was not smooth, Qiao asked Meng to hold a plastic oiler and directly supply petrol to the carburetor, which is a rule-breaking operation, in order to drive on. When the bus passed by No. 5 Team, Song Village, Xushui Township, Zhongyuan District, the carburetor got a strike back and caused a fire to the bus, wherein three kids, Wang Aodi, Yang Shanshan and Zhao Gongjie, were burnt to death on the spot. Meng was so seriously burnt that he died later in hospital. Other two kids, Wang Jie and Gu Shixing, suffered from severe injuries. The bus was destroyed in the fire. 2002年6月2日,被告人高知先接管郑州市中原区大岗刘乡石羊寺村月亮船幼儿园任园长,负责全面工作;被告人乔永杰是该幼儿园雇用的司机。高知先明知该园用于接送幼儿的豫A55345号松花江牌面包车车况差,油路不畅,急需检修,仍要求乔永杰驾驶该车接送幼儿。6月14日19时许,乔永杰驾驶该车送第一批幼儿回家途中,车辆出现故障,打不着火,无法将车上儿童送回家,遂打电话将此事通知给高知先。高知先与孟辉军骑摩托车赶到现场后,见车辆仍未修好,由于时间较晚,高知先就到附近租了一辆车,将留置在故障车内的儿童全部送走,要求乔永杰和孟辉军继续修车,修好后送园内其他幼儿。乔永杰和孟辉军对豫A55345号车进行简单维修后,又开车回到幼儿园接上第二批幼儿送回家。途中因油路不畅,乔永杰让孟辉军用手扶着一塑料油壶,采取用油壶直接向该车汽化器供油的违规操作方法继续行驶。豫A55345号车行至中原区须水镇宋庄五队时,由于汽化器回火,引起汽车着火,将车上的王奥迪、杨姗姗、赵龚杰等三名儿童当场烧死,孟辉军严重烧伤后经医治无效死亡,王杰、谷世兴等两名儿童被烧成重伤,面包车被烧毁。
Thereafter, Qiao ran away from the spot and was later forcefully sent by the mass to the police, who hurried to the spot of accident. Gao ran to Xi'an on the very night and, thereafter, surrendered himself to the public security organ on June 17, 2002. 案发后,被告人乔永杰逃离现场,后被群众扭送给赶到现场的公安人员;被告人高知先当晚逃往西安,后于2002年6月17日到公安机关投案。
To confirm the aforesaid facts, the public prosecution organ presented the following evidences, which have been cross-examined and accepted through hearing: 上述事实,有公诉机关提交并经庭审质证、认证的下列证据证实:
1. Testimony of Qiao zhanmin, showing the procedures for his wife, Li Zhenling, to deliver the Kindergarten to Gao; 1.证人乔占民的证言,主要内容是:其爱人李振玲与高知先交接月亮船幼儿园的过程;
2. The Transfer Agreement of the Kindergarten and the Registration Certificate of the Kindergarten; 2.月亮船幼儿园的转让协议、月亮船幼儿园的注册证;
3. Testimony of Zhao Jianlin, showing that he knew that Qiao was not skillful in driving and once persuaded Gao not to let Qiao send kids by bus; 3.证人赵建林的证言,主要内容是:其了解乔永杰驾驶技术不行,曾劝说高知先不要让乔永杰开车接送幼儿园儿童;
4. Testimony of Chang Xihua, Li Huimin, Wang Aiying, Wang Hongjun, Zhang Fengxia, Song Wanquan and Wang Jianfang, showing the course of the said fire accident; 4.证人常喜花、李会敏、王爱英、王红军、张凤霞、宋万全、王建芳的证言,主要内容是:月亮船幼儿园接送儿童的面包车着火经过;
5. The on-the-spot investigation record of the fire accident, the confirmation document of the cause of the fire accident, the photos of the fire accident spot, confirming the cause of the fire; 5.火灾现场勘查记录、火灾原因认定书、火灾现场照片,证实起火原因;
6. The paper of criminal technical authentication, identification records, DNA fingerprint authentication report, etc., confirming the casualties on board of the bus. 6.刑事技术鉴定书、辨认笔录、DNA指纹鉴定报告书等,证实车上人员伤亡情况;
7. The certification as produced by Zhongyuan Sub-bureau of the Police Office of Zhenzhou Municipality, proving how Qiao was caught and how Gao surrendered himself; 7.郑州市公安局中原分局出具的证明,证明乔永杰被抓获和高知先投案的经过;
8. Testimony of Hai Huiling, Hai Huijie and Ma Fujun, showing how Qiao was forcefully sent to the police; 8.证人海慧岭、海慧杰、马福军的证言,主要内容是:事发后将乔永杰扭送给公安人员的经过;
9. Certification of the defendants' ages; 9.二被告人的年龄证明;
10. Gao's confession; and 10.被告人高知先的供述;
11. Qiao's confession. 11.被告人乔永杰的供述。
The aforesaid evidences are true and sufficient to function as the basis for confirming the relevant facts in this case. 以上证据确实、充分,足以作为认定本案事实的根据。
In the hearing, Gao's advocate provided the testimony of Liu Yanli, a teacher of the Kindergarten, showing that, Gao, after renting a bus, did ask Qiao to repair the bus and it was when Qiao sent the second batch of kids that the bus caught a fire; as well as the testimony of Zhao Hongbin, showing that, on the evening of June 14, 2002, Gao asked him to help send all the kids of the Kindergarten home by renting his vehicle. 庭审中,被告人高知先的辩护人提供了幼儿园老师刘艳丽的证言,主要内容是:高知先租车后曾让乔永杰去修车,乔永杰在驾车再次送儿童时汽车着火;证人赵宏宾的证言,主要内容是:2002年6月14日晚高知先租其车辆时说,叫其帮助送幼儿园的全部儿童。
The People's Court of Zhongyuan District of Zhengzhou Municipality held through hearing that: 郑州市中原区人民法院认为:
Article 233 of the Criminal Law prescribes that: “Whoever negligently causes death to another person shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the circumstances are relatively minor, he shall be sentenced to fixed-term imprisonment of not more than three years, except as otherwise specifically provided in this Law.” Gao and Qiao had faults in the accident of Yu 55345 microbus' catching a fire, which caused a severe consequence of 4 deaths and 2 injuries. Whereas, the Criminal Law had separate provisions on the defendants' faults, therefore, neither defendant's act has constituted a crime of negligent homicide as prescribed by Article 233 of the Criminal Law. The facts and evidence as presented by the public prosecution organ in the indictment are clear and sufficient. However, the characterization on their acts was improper and thus shall be corrected. 刑法二百三十三条规定:“过失致人死亡的,处三年以上七年以下有期徒刑;情节较轻的,处三年以下有期徒刑。本法另有规定的,依照规定。”被告人高知先、乔永杰对豫A55345号面包车起火后烧死4人、烧伤2人这一严重危害后果虽然都有过失,但刑法对二被告人的过失都另有规定,因此二被告人的行为不构成刑法二百三十三条规定的过失致人死亡罪。公诉机关指控二被告人的犯罪事实清楚,证据充分,但对二被告人行为的定性不妥,应当纠正。
Article 133 of the Criminal Law prescribes that: “Whoever violates the regulations governing traffic and transportation and thereby causes a serious accident, resulting in serious injuries or deaths or heavy losses of public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Whoever runs away from the spot after he has caused a traffic accident or is involved in other especially flagrant circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if his escape results in the death of another person, he shall be sentenced to fixed-term imprisonment of not less than seven years.” Article 7 of the Interpretation of the Supreme People's Court on the Specific Application of Law in the Hearing of Criminal Cases on Traffic Disturbance prescribes that: “Where any director of an entity, or owner or contractor of a motorcycle instigates or forces any other person to drive against traffic regulations and thus causes major traffic accident under any of the circumstances as prescribed in Article 2 of the present Interpretation, he shall be subject to the punishment for the crime of traffic disturbance.” Article 8 of the Interpretation prescribes that: In the case of any major traffic accident within the scope of public traffic administration, it shall be handled according to the relevant provisions of Article 133 of the Criminal Law as well as the present Interpretation.” The bus caught a fire on the road near No. 5 team, Song Village, Xushui Township, Zhongyuan District, Zhengzhou Municipality, within the scope of public traffic administration. Therefore, this case shall be deemed as a major traffic accident, in which a traffic tool caught a fire and caused a severe consequence of 4 deaths and 2 injuries. Qiao was a driver as employed by the Kindergarten, who, though fully aware that the bus had problems too serious to be driven along, still drove the bus. Where the bus malfunctioned, Qiao violated the provisions on the administration of traffic and transportation, directly supplied petrol to the carburetor and continued the driving, thereby incurring a serious consequence of bus destruction and casualties. Gao, as the administrator of the Kindergarten as well as user of the bus who had been notified that the bus had such serious problems and relevant maintenance was badly needed, still instructed Qiao to send kids by this bus, thereby causing a serious consequence of bus destruction and relevant casualties. Both defendants have violated the provisions of Article 133 of the Criminal Law and constituted a crime of traffic disturbance with particularly severe circumstances, and thereby shall be subject to punishment according to law. Gao voluntarily surrendered himself to court and confessed his major criminal facts in a faithful manner, which shall be deemed as confession of his offense, therefore, he shall be subject to a lenient punishment. 刑法一百三十三条规定:“违反交通运输管理法规,因而发生重大事故,致人重伤、死亡或者使公私财产遭受重大损失的,处三年以下有期徒刑或者拘役;交通运输肇事后逃逸或者有其他特别恶劣情节的,处三年以上七年以下有期徒刑;因逃逸致人死亡的,处七年以上有期徒刑。”最高人民法院《关于审理交通肇事刑事案件具体应用法律若干问题的解释》第七条规定:“单位主管人员、机动车辆所有人或者机动车辆承包人指使、强令他人违章驾驶造成重大交通事故,具有本解释第二条规定情形之一的,以交通肇事罪定罪处罚。”第八条规定:“在实行公共交通管理的范围内发生重大交通事故的,依照刑法一百三十三条和本解释的有关规定办理。”豫A55345号面包车起火时,位于郑州市中原区须水镇宋庄五队村口处的道路上,此处在公共交通管理范围,因此本案是交通工具起火后造成4死2伤危害后果的重大交通事故。被告人乔永杰是月亮船幼儿园雇用的司机,明知豫A55345号面包车存在严重问题,不符合上路要求,仍驾驶该车上路;当该车发生故障后,乔永杰又违反交通运输管理法规的规定,采用直接为汽化器供油的办法继续行驶,以至造成车毁人伤亡的严重后果。被告人高知先作为月亮船幼儿园的管理者和豫A55345号面包车的使用人,在已经被告知该车存在严重问题、急需修理才能使用的情况下,仍指使乔永杰用该车接送幼儿,以至引发车毁人伤亡的严重后果。二被告人的行为触犯了刑法一百三十三条的规定,构成交通肇事罪,且犯罪情节特别恶劣,应当依法惩处。高知先犯罪后能自动投案,如实供述其主要犯罪事实,应认定为自首,依法应从轻处罚。
Article 134 of the Criminal Law prescribes that: “If any employee of a factory, mine, tree farm, construction enterprise or any other enterprise or institution disobeys management or violates rules and regulations or, if anyone forces employees to work under hazardous conditions in violation of rules, thereby causing an accident involving heavy casualties or causing other serious consequences, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are especially flagrant, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.” As to the crime of negligently causing a serious accident as mentioned in this Article, the object under offense is the work safety of a factory, mine, tree farm, construction enterprise or any other enterprise or institution, wherein the offense was embodied in dissatisfaction of administration and violation of rules and regulations or in forcing workers to take risks in operation against regulations, thereby incurring any major accident of casualties or any other severe consequence. Qiao violated the regulations on the administration of traffic and transportation by directly supplying petrol to the carburetor, thereby causing an accident involving bus destruction and casualties. In this case, the object under offense is the security of traffic and communication rather than work safety of a factory, mine, tree farm, construction enterprise or any other enterprise or institution. Therefore, the argument presented by Qiao's advocate that Qiao only committed a crime of negligently causing a serious accident shall not be accepted. 刑法一百三十四条规定:“工厂、矿山、林场、建筑企业或者其他企业、事业单位的职工,由于不服管理、违反规章制度,或者强令工人违章冒险作业,因而发生重大伤亡事故或者造成其他严重后果的,处三年以下有期徒刑或者拘役;情节特别恶劣的,处三年以上七年以下有期徒刑。”此条规定的重大责任事故罪,侵犯的客体是工厂、矿山、林场、建筑企业或者其他企业、事业单位的生产安全,客观方面表现为不服管理、违反规章制度,或者强令工人违章冒险作业,因而发生重大伤亡事故或者造成其他严重后果的行为。被告人乔永杰是在驾车行驶过程中,违反交通运输管理法规,直接向汽化器供油,才导致在道路上发生车毁人伤亡的事故。这个行为侵犯的客体是交通运输安全,而非工厂、矿山、林场、建筑企业或者其他企业、事业单位的生产安全,因此对乔永杰辩护人提出的乔永杰行为构成重大责任事故罪的辩护意见不予采纳。
Therefore, The People's Court of Zhongyuan District of Zhengzhou Municipality adjudicated on November 5, 2002 that: 据此,郑州市中原区人民法院于2002年11月5日判决:
Gao shall be sentenced to fix-term imprisonment of 5 years under the crime of traffic disturbance. 被告人高知先犯交通肇事罪,判处有期徒刑五年;
Qiao shall be sentenced to fix-term imprisonment of 5 years under the crime of traffic disturbance. 被告人乔永杰犯交通肇事罪,判处有期徒刑五年。
BASIC FACTS 
After the judgment of the first instance was announced, Gao was dissatisfied with it and filed an appeal, with the following reasons: He had no knowledge of or experience on driving. When he knew that the bus malfunctioned, he asked the driver to repair and did not order him to drive any more. Therefore, the accident was incurred by the driver, who operated against regulations, and had nothing to do with Gao, so Gao's act did not constitute any crime of traffic disturbance. Even if his act has constituted a crime, he surrendered himself to justice voluntarily. The judgment of the original instance is too heavy. Qiao was satisfied with the judgment of the first instance and filed no appeal. 一审宣判后,高知先不服判决,提出上诉,理由是:其不懂驾驶,没有实际驾车,在得知汽车有故障后,叫司机去修车,没有强令其驾驶;发生事故,完全是司机违规操作引起的,与其无关,其行为不构成交通肇事罪;即使其行为构成犯罪,其也有自首情节,原判量刑太重。乔永杰服判不上诉。
The Intermediate People's Court of Zhengzhou Municipality confirmed all the facts as confirmed in the first instance upon hearing: 郑州市中级人民法院经审理,确认了一审认定的全部事实。
The Intermediate People's Court of Zhengzhou Municipality held that: 郑州市中级人民法院认为:
Qiao violated the regulations on traffic and transportation, thereby incurring heavy traffic accident by motorcycle, with a consequence of 4 deaths and 2 injuries as well as vehicle destruction. He was in particularly severe circumstances and thus shall be subject to punishment according to law. It was correct in the first instance to give punishment under the crime of traffic disturbance. Only under the circumstance where the principal or owner of a vehicle as involved in traffic trouble instigates or forces any other person to drive against regulations and thus incurs any major accident, may the liable person be subject to the punishment for traffic disturbance. Neither was Gao a direct troublemaker in the accident nor could it be established by the evidence in this case that Gao instigates or forces Qiao to drive against regulations. The relevant evidence shows that Gao, as soon as being informed of the accident, rent another vehicle to send home the kids on board of the malfunctioned bus and asked Qiao to repair the malfunctioned bus. Obviously, there was insufficient evidence for the court of the first instance to confirm that Gao instigated Qiao to drive against regulations. Gao's act did not constitute any crime of traffic disturbance. 原审被告人乔永杰违反交通运输法规,驾驶机动车发生重大交通事故,致4人死亡、2人重伤、车辆烧毁的严重后果,情节特别恶劣,应依法惩处,一审以交通肇事罪定罪处罚,是正确的。主管人员、肇事车辆的管理所有人,只有在指使、强令他人违章驾驶而造成重大交通事故的情况下,才能以交通肇事罪定罪处罚。上诉人高知先既不是交通事故中的直接肇事者,本案证据也不能证明高知先指使、强令乔永杰违规操作,却能证明在得知车辆出现故障后,高知先租用其他车辆将故障车上的幼儿送走,并告知乔永杰修理故障车。可见,一审认定高知先指使乔永杰违规驾驶,缺乏证据支持,高知先的行为不应构成交通肇事罪。
Article 138 of the Criminal Law prescribes that: “If a person who is directly responsible knowingly fails to adopt measures against dangers in school buildings or in educational or teaching facilities or to make a timely report about the matter, so that an accident involving heavy casualties occurs, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.” It is about the crime of major accident safety of teaching facilities as prescribed in the Criminal Law. The object under offense was the public security and teaching administration order and the subject is the person directly liable for the maintenance of teaching facilities. Subjectively it is negligence. Objectively, it is an act of failing to adopt the relevant measures or failing to report in a timely manner, thereby incurring a major casualty accident. The term “failing to adopt the relevant measures” includes adopting no or no effective measures. A kindergarten is an institution that imparts early childhood education. The vehicle as involved in the accident of this case is a tool that the Kindergarten applies for sending kids and thus shall be regarded as teaching facilities. Gao, as the principal of the Kindergarten, was directly responsible for the security of teaching facilities. Gao, when fully aware that the bus's oil-way was jammed, failed to fulfill his duties and functions to transfer the vehicle to professionals for maintenance so as to eradicate the relevant danger but instructed Qiao to continue using the bus, a teaching facility with security uncertainties, to send kids home. The severe consequence of vehicle destruction and casualties was, no doubt, directly incurred by Qiao who violated the regulation on traffic. However, the consequence of 3 kids being burnt to death and 2 kids being burnt to injuries bore a cause-and-effect-relationship with Gao's application of teaching facilities with security uncertainties when in full awareness of the potential danger. Gao's act impaired the society and thus he shall be subject to criminal liabilities for the crime of major accident safety for teaching facilities. 刑法一百三十八条规定:“明知校舍或者教育教学设施有危险,而不采取措施或者不及时报告,致使发生重大伤亡事故的,对直接责任人员,处三年以下有期徒刑或者拘役;后果特别严重的,处三年以上七年以下有期徒刑。”这是刑法规定的教育设施重大安全事故罪。该罪侵犯的客体,是公共安全和教学管理秩序,主体是对教育教学设施负有维护义务的直接人员,主观方面表现为过失,客观方面表现为不采取措施或者不及时报告致使发生重大伤亡事故的行为。“不采取措施”,既包括没有采取任何措施,也包括没有采取任何有效措施。幼儿园是实施幼儿教育的机构;本案事故车辆,是月亮船幼儿园专用于接送幼儿的工具,是教育教学设施。上诉人高知先作为月亮船幼儿园园长,对该教育教学设施的安全负有直接责任。高知先明知该车油路堵塞急需检修,不履行职责将该车交给专业人员检修以便排除危险,却让原审被告人乔永杰使用这个已确定存在安全隐患的教育教学设施接送幼儿。本案车毁人伤亡的危害后果,固然是乔永杰违反交通运输法规的行为直接造成的,但其中3名幼儿被烧死、2名幼儿被烧伤,却与高知先明知教育教学设施有危险而将其继续投入使用的行为有因果关系。高知先的行为有严重的社会危害性,应当以教育设施重大安全事故罪追究其刑事责任。
JUDGMENT 
In conclusion, the argument of Gao's advocate that Gao did not constitute any crime of traffic disturbance and that the sentence of the original judgment is too heavy is well established and shall be adopted. The conviction of the first instance on Qiao was accurate and the sentence thereto was proper. The procedures for trial were legal in the first instance. But the conviction of and sentence to Gao therein was improper and thus shall be corrected. Therefore, the Intermediate People's Court of Zhengzhou Municipality adjudicated on March 26, 2003 according to the provisions of item (2) of Article 189 of the Criminal Litigation Law of the People's Republic of China that: 综上所述,上诉人高知先及其辩护人关于高知先行为不构成交通肇事罪、原判量刑重的辩解和辩护意见成立,应予采纳。一审判决对原审被告人乔永杰的定罪准确,量刑适当,审判程序合法,但对高知先的定罪及量刑不当,应当纠正。据此,郑州市中级人民法院依照《中华人民共和国刑事诉讼法》第一百八十九条第(二)项的规定,于2003年3月26日判决:
1. The conviction of and sentence to Qiao in the criminal judgment of the first instance shall be maintained; 一、维持一审刑事判决中对原审被告人乔永杰的定罪及量刑部分;
2. The conviction of and sentence to Gao in the criminal judgment of the first instance shall be revoked. 二、撤销一审刑事判决中对上诉人高知先的定罪及量刑部分;
3. Gao committed a crime of major accident safety regarding teaching facilities and shall be sentenced to fix-term imprisonment of 4 years.

 三、上诉人高知先犯教育设施重大安全事故罪,判处有期徒刑四年。
 

     
     
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