A Study on the Crime of Unsafe Driving the Criminal Code Article 185-3: Focusing on Drunk Driving
Date Issued
2015
Date
2015
Author(s)
Chen, Ching-Lin
Abstract
There has been a big controversy over the amendment to article 185-3 since it was promulgated on June 11, 2013. This thesis will focus on the interpretation and application of article 185-3 by disassembling it into three parts, and further suggests on amending article 185-3. The first part: Article 185-3 paragraph 1 is defined as an crime of abstract danger. This type of crime is composed of the threat of the behavior, instead of accomplished danger or concrete danger. Since the core of article 185-3 is directly related to the status of “unsafe driving”, the application of subparagraph 1 should focus on the status of “unsafe driving”, rather than the breath alcohol content or the blood alcohol concentration. The second part: Article 185-3 paragraph 1 subparagraph 1 is also criticized severely. Due to the lack of medical evaluation base, the quality of alcohol detectors used, police officers trainings and error-avoiding procedures, the temporally solution is to see this subparagraph as “inconclusive or rebuttable presumption of law”. More radically, subparagraphs 1 to 3 should all be deleted, and paragraph 1 be amended to one and only criterion for “unsafe driving”. The third part: Article 185-3 paragraph 2 is mostly regarded as aggravated resulting crime. Since the legitimacy of aggravated resulting crimes has always been a debatable point, the followings are basic requirements to limit the range of it: a) the threat of the intended act (the behavior of unsafe driving) is powerful enough to develop into the aggravated result; b) the aggravated result has to be related to the intended act, which means the aggravated result should be derived from the threat of the intended act. The judge should also determine the relationship concretely in each case; c) the offender has negligence to the aggravated result. Besides, in order to solve the question about inadequate concurrences, this thesis also suggests adjusting the punishments for negligent conducts to make them connect to the punishments for intentional conducts, and revising the requisite elements of aggravated resulting crimes by adding gross negligence (culpable negligence) as the subjective component element to narrow the application of aggravated resulting crimes.
Subjects
drunk driving
unsafe driving
breath alcohol content
blood alcohol concentration
offender of abstract danger
the threat of the behavior
gross negligence
culpable negligence
aggravated resulting crime
SDGs
Type
thesis