摘要
八年多的实践证明,醉驾入刑的确有效遏制了醉驾行为,与此同时也带来诸如选择性执法、同案不同判、量刑标准不统一、罚不当罪、标签化影响深远等一系列问题与争议.解决问题的理论前提之一便是醉驾能否依《刑法》第13条但书及第37条据"情节"出罪、免刑.刑法总则对分则的指导作用、体系性要求、立法定位、刑事政策的要求及其发展趋势乃至最高法印发的《关于常见犯罪的量刑指导意见(二)(试行)》的规定皆要求醉驾应当依13条但书及37条出罪、免刑.
The practice for more than eight years has proved that after“drunk driving into criminal law”, the behavior of drunk driving has been effectively curbed. At the same time, it also brings about a series of issues and disputes, such as selective law enforcement, different sentences in the same case, inconsistent sentencing standards, improper punishment, and far-reaching impact of labelling, and so on. One of the theoretical prerequisites for solving the problems is whether drunk driving can be exempted from punishment in accordance with the proviso of Article 13 and Article 37 of the Criminal Code. The guiding role of the General provisions of Criminal Law to the Sub-provisions, the systematic requirements of criminal law,the legislative orientation of Criminal Law, the requirements and development trend of Criminal Policy and even the Guidance on sentencing of Common crimes (2)(trial) which is issued by the Supreme People's Court require that drunken driving can be of decriminalization and exempt from punishment according to the proviso of Article 13 and Article 37 of the Criminal Code.
作者
牛瑞丹
Niu Ruidan(Law School of Tianjin University of Commerce,Tianjin 300134,China)
出处
《六盘水师范学院学报》
2019年第4期95-101,共7页
Journal of Liupanshui Normal University
关键词
醉驾免刑
醉驾出罪
刑事政策
情节
drunk driving immunity
decriminalization of drunk driving
criminal policy
plot
