醉驾型危险驾驶入罪的合理性及出罪路径

The Reasonableness of Drunk Driving Dangerous Driving and the Path of Sin

摘要: 从风险社会理论、醉驾入刑的规制效果、罪名评价体系及交通安全意识四个方面来看，醉驾型危险驾驶罪的增设具有合理性，因此不应取消醉驾型危险驾驶罪。但醉驾行为不应一律入罪，醉驾行为可采用以下两条出罪路径：一是抽象危险犯的反证，通过醉驾行为并未造成抽象危险的反证，否定作为抽象危险犯的醉驾型危险驾驶罪的成立；二是适用但书规定，在犯罪构成要件的判断时，将但书作为入罪限制，情节显著轻微危害不大的醉驾行为不符合犯罪构成要件从而实现出罪。刑法未认定为犯罪的醉驾行为仍应予以适当的行政处罚，因此有必要对醉驾处罚的行刑衔接进行调整，以合理规制不构成犯罪的醉驾行为。

Abstract: From the perspective of risk society theory, the regulatory ef-fect of drunk driving criminalization, the crime evaluation system and traffic safety awareness, the addition of drunk driving dangerous driving crime is reasonable, so the drunk driving dangerous driving crime should not be abolished. However, drunk driving behavior should not be criminalized, and drunk driving behavior can adopt the following two ways to get out: first, the counter-evidence of abstract dangerous offenders, through the counter-proof that drunk driving behavior did not cause abstract danger, denying the establishment of the crime of drunk driving dangerous driving as an abstract dangerous offender; second, the proviso is applied, and when judging the constituent elements of the crime, the proviso is used as a restriction on criminalization, and the drunk driving behavior that is significantly minor and does not cause much harm does not meet the constituent elements of the crime, so as to achieve the conviction. Drunk driving that is not recognized as a crime in the criminal law should still be given appropriate administrative punishment, so it is nec-essary to adjust the connection between the criminal and criminal punishment of drunk driving to reasonably regulate drunk driving that does not constitute a crime.