论交通肇事罪的司法适用

交通肇事罪刑法条文规定与司法解释及刑法理论存在冲突。结合交通肇事罪的定罪与量刑,本文认为交通肇事罪不应存在共同犯罪。在自首的问题上,应适应不同的量刑档次,分别不同情况确定是否适用自首。对交通肇事行为如何定罪,看行为是否危害公共安全。

On Peral Application of Crimes in Traffic Accidents

With regard to crimes where traffic accidents involved, the rules in China's Penal Code, judicial interpretations by the Supreme People's Court and the theories of criminal law conflict with each other. Conspiracy should not apply in case that a crime involving traffic accidents is committed. However, in deciding whether rules of surrender apply to a specific traffic accident involved crime, harshness of the punishment supposed to be imposed to it should be taken into account respectively. Furthermore, whether an activity giving rise to a traffic accident should be found guilty depends on whether it constitutes an offense against public welfare.