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Notice of the Supreme People's Court on Issuing the Guiding Opinions on Issues Concerning the Application of Law to the Crime of DWI and the Relevant Typical Cases
(No. 47 [2009] of the Supreme People's Court)
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government, the Military Court of the PLA, and the Xinjiang Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uigur Autonomous Region; all local intermediate people's courts throughout the country, military courts of all large entities, and all intermediate courts of Xinjiang Production and Construction Corps:
In recent years, with China's rapid economic and social development, the number of motor vehicles and drivers has soared. However, some drivers ignored traffic administrative laws and regulations, and the offence of driving under the influence of alcohol (DUI) even the crime of driving while intoxicated (DWI) have been increasing, which caused serious damage to the society and the lives and health of people. According to the statistics of the public security organ, in 1998, a total of 5,075 DUI and DWI cases occurred across the country, resulting in 2,363 deaths; in 2008, 7,518 cases occurred, resulting in 3,060 deaths; from January to August 2009, there were 3,206 cases, resulting in 1,302 deaths, in particular, there were 2,162 DUI cases, resulting in 893 deaths; 1,044 DWI cases, resulting in 409 deaths. The crimes of DWI have shown a trend of frequent occurrences, and caused more serious harms, and the cases which cause multiple causalities at a time occurred frequently. Especially in the recent period, many major DWI accidents occurred in succession in Chengdu, Nanjing, Hangzhou and other places, which incurred widespread and great concern of public opinions.
In order to severely punish the crime of DWI according to law, unify the standards for the application of law, give a full play to the role of penalties, effectively curb the trend of frequent occurrences of the crime of DWI and effectively protect the safety of people's lives and health, the Supreme People's Court held a press conference on September 8, 2009, putting forward the guiding opinions on issues concerning the application of law to the crime of DWI, and announced two typical cases of the crime of DWI. We hereby issue the guiding opinions of the Supreme People's Court on the issues concerning the application of law to the crime of DWI and the two typical cases to you for your compliance and implementation in the trial of the relevant cases.
Supreme People's Court of the People's Republic of China
September 11, 2009
Guiding Opinions of the Supreme People's Court on the Issues concerning the Application of Law to the Crime of DWI
In order to severely punish the crime of DWI according to law, unify the standards for the application of law, give a full play to the role of penalties in punishing and preventing crimes, effectively curb the trend of frequent occurrences of DUI and DWI offenses and effectively protect the safety of people's lives and health, it is necessary to make unified rules for the issues concerning the application of law to the crime of DWI.
| | 最高人民法院关于印发醉酒驾车犯罪法律适用问题指导意见及相关典型案例的通知
（法发[2009]47号）
各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院；全国地方各中级人民法院，各大单位军事法院，新疆生产建设兵团各中级法院：
近年来，随着我国经济社会快速发展，机动车辆数量和驾驶员人数猛增，无视交通管理法律法规，酒后乃至醉酒驾车的违法犯罪也日益增多，给社会和广大人民群众生命、健康造成了严重危害。据公安机关统计，1998年，全国共发生5075起酒后和醉酒驾车肇事案件，造成2363人死亡；2008年，发生7518起，死亡3060人；2009年1月至8月，共发生3206起，造成1302人死亡，其中，酒后驾车肇事2162起，造成893人死亡；醉酒驾车肇事1044起，造成409人死亡。醉酒驾车犯罪呈多发、高发态势，危害更加严重，一次致多人死伤的案件屡有发生。特别是近一段时期以来，成都、南京、杭州等地连续发生多起重大醉酒驾车肇事案件，引发了社会舆论的广泛、高度关注。
为依法严惩醉酒驾车犯罪，统一法律适用标准，充分发挥刑罚功能，有效遏制醉酒驾车犯罪的多发、高发态势，切实维护广大人民群众的生命、健康安全，2009年9月8日，最高人民法院召开新闻发布会，就醉酒驾车犯罪的法律适用等问题提出了指导性意见，并公布了两起醉酒驾车的犯罪典型案例。现将最高人民法院对醉酒驾车犯罪法律适用问题的指导意见及两起典型案例印发给你们，供审理相关案件时参照执行。
中华人民共和国最高人民法院
二〇〇九年九月十一日
关于醉酒驾车犯罪法律适用问题的意见
为依法严肃处理醉酒驾车犯罪案件，统一法律适用标准，充分发挥刑罚惩治和预防犯罪的功能，有效遏制酒后和醉酒驾车犯罪的多发、高发态势，切实维护广大人民群众的生命健康安全，有必要对醉酒驾车犯罪法律适用问题作出统一规范。
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I. Accurately applying law, and severely punishing the crime of DWI according to law
The criminal law provides that, an intoxicated person who commits a crime shall bear criminal responsibility. If a doer knows that DUI violates law, and DWI would endanger the public safety, but ignores the law and drives while drunk, especially continuously crashes into cars after an accident, and causes heavy causalities, it indicates that the doer subjectively maintains a laissez-faire attitude towards the harmful consequences which continuously occurred, and has the intent of endangering the public safety. Those who drive while intoxicated and cause heavy casualties shall be convicted as endangering the public safety in a dangerous way.
In the two DWI cases which were announced on September 8, 2009, the two accused, Li Jingquan and Sun Weiming, drove while seriously intoxicated, continuously collided, and caused heavy casualties. In particular, Li Jingquan, after causing a car accident, disregarded the safety of the injured and the villagers dissuading him, kept on driving, and killed two people and lightly injured one; Sun Weiming drove without a license for a long period, repeatedly violated the traffic laws, kept on driving over the speed limit to escape after rear-end colliding onto another motor vehicle due to drunk driving, and successively ran into four cars which were running normally, as a result, four people were killed and one was seriously injured. The accused, Li Jingquan and Sun Weiming, kept on driving madly after causing traffic accidents while driving drunk, they subjectively maintained an obvious laissez-faire attitude towards the harmful consequences of casualties, and had the intent of endangering the public safety. The conducts of the two accused had constituted the crime of endangering the public safety in a dangerous way.
| | 一、准确适用法律，依法严惩醉酒驾车犯罪
刑法规定，醉酒的人犯罪，应当负刑事责任。行为人明知酒后驾车违法、醉酒驾车会危害公共安全，却无视法律醉酒驾车，特别是在肇事后继续驾车冲撞，造成重大伤亡，说明行为人主观上对持续发生的危害结果持放任态度，具有危害公共安全的故意。对此类醉酒驾车造成重大伤亡的，应依法以以危险方法危害公共安全罪定罪。
2009年9月8日公布的两起醉酒驾车犯罪案件中，被告人黎景全和被告人孙伟铭都是在严重醉酒状态下驾车肇事，连续冲撞，造成重大伤亡。其中，黎景全驾车肇事后，不顾伤者及劝阻他的众多村民的安危，继续驾车行驶，致2人死亡，1人轻伤；孙伟铭长期无证驾驶，多次违反交通法规，在醉酒驾车与其他车辆追尾后，为逃逸继续驾车超限速行驶，先后与4辆正常行驶的轿车相撞，造成4人死亡、1人重伤。被告人黎景全和被告人孙伟铭在醉酒驾车发生交通事故后，继续驾车冲撞行驶，其主观上对他人伤亡的危害结果明显持放任态度，具有危害公共安全的故意。二被告人的行为均已构成以危险方法危害公共安全罪。
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II. Implementing the criminal policies of leniency and severity, and appropriately determining penalties
Under Paragraph 1 of Article 115 of the Criminal Law, whoever drives while intoxicated, allows the occurrence of harmful consequences, causes an accident of heavy casualties, and constitutes the crime of endangering the public safety in a dangerous way shall be sentenced to a fixed-term imprisonment of more than ten years, life imprisonment, or death. When determining specific penalties on the accused, the courts shall comprehensively consider the nature of such kind of crimes, the criminal circumstances of the accused, the harmful consequences, and subjective malignancy and personal dangerousness of the accused. Under general circumstances, where any drunk driving constitutes this crime, but the doer neither expects nor pursues the occurrence of the harmful consequences subjectively, that shall belong to indirect intentional crimes, and the subjective malignancy of this conduct is different from that of a direct intentional crime in which a doer maliciously hits people with car for the purpose of creating troubles, and causes heavy casualties, therefore, the aforesaid crimes should be differentiated when the penalties are determined. In addition, when an actor drives while intoxicated, his ability of identification and control will be weakened actually, and it should be taken into consideration when the punishment is determined.
．．．．．． | | 二、贯彻宽严相济刑事政策，适当裁量刑罚
根据刑法第一百一十五条第一款的规定，醉酒驾车，放任危害结果发生，造成重大伤亡事故，构成以危险方法危害公共安全罪的，应处以十年以上有期徒刑、无期徒刑或者死刑。具体决定对被告人的刑罚时，要综合考虑此类犯罪的性质、被告人的犯罪情节、危害后果及其主观恶性、人身危险性。一般情况下，醉酒驾车构成本罪的，行为人在主观上并不希望、也不追求危害结果的发生，属于间接故意犯罪，行为的主观恶性与以制造事端为目的而恶意驾车撞人并造成重大伤亡后果的直接故意犯罪有所不同，因此，在决定刑罚时，也应当有所区别。此外，醉酒状态下驾车，行为人的辨认和控制能力实际有所减弱，量刑时也应酌情考虑。
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