- 學位論文
抗制重大危險駕駛行為之刑事立法建議
Legislative Suggestions of Combating Major Risky Driving Behavior
摘要
關於飆車、逼車等行為，係破壞交通秩序並威脅到其他用路人安全的危險駕駛行為，且因此常有重大事故發生是具有重大危險的行為，我國學者對於具有危險性的駕駛行為亦認為應以刑法規範，並非全由行政法規範，然我國刑法目前對於危險駕駛行為的處罰規定在刑法第185-3條不能安全駕駛罪與第185-4條肇事逃逸罪，前者規範範圍僅係酒駕、藥駕與毒駕等危險駕駛行為，後者係規範肇事後逃逸行為的處罰，又刑法妨害往來罪章中之法律已不符現今的需要，依此現行法律對於飆車、逼車等行為僅能以行政處罰與刑法過失致死傷罪處罰，對具重大危險性的駕駛行為已不足以規範，有入罪化的必要性。 日本對於危險駕駛行為係設立專法規範，首先觀察日本的立法方向，發現日本係以社會上實際發生案件來立法或修法，本文認為亦應按照我國實務上經常處罰的類型，與日本方面立法的類型，重新檢視我國應處罰危險駕駛行為之範圍。又日本在專法的立法模式係採取處罰實害犯的方式，而我國對於危險駕駛行為之處罰採取危險犯的方式，本文亦從預防功能討論兩種立法模式的適用性，希望透過比較法的研究方式，期以提供危險駕駛行為立法建議的參考方向。
並列摘要
With regard to speeding and forced tailgating, they are all considered as dangerous driving behavior that disrupts traffic order and threatens the safety of other road users. Therefore, it is an act with great danger, frequently resulting in major accidents. Our scholars believe that these dangerous driving behaviors must be regulated under criminal law and not simply governed by administrative law. However, at present, the criminal law of our country stipulates the punishment for dangerous driving behavior in Article 185-3 of the Criminal Law, such as crime of unsafe driving and the crime of hit-and-run in Article 185-4 of the Criminal Law, where the former only covers dangerous driving behaviors such as drunk driving, drug driving and under-influence driving, while the latter states the punishment in regulating the behavior of escaping after causing an accident. Nevertheless, the regulation in the chapter to classify offense against traffic order in the criminal law is no longer in line with the current needs, since according to this, the behavior of speeding and forced tailgating can only be classified under administrative punishment and the crime of negligent death and injury in the criminal law, respectively, which is not enough to further prevent driving behavior of great danger; thus, it is necessary to criminalize such reckless actions. Japan has set up a special law to regulate dangerous driving behavior. First, by observing the legislative directive in Japan, it is found that Japan legislates or revises the law based on actual cases in society. This article believed that we should also re-examine the scope of dangerous driving behavior that should be punished in our country according to the types of frequent penalties in our practice, compared with the types of legislation in Japan. In addition, Japan's legislative mode of special law adopts the way of punishing actual injury crime, while we adopt to punish these behaviors only as dangerous offender. In this research, we would also discuss the applicability of the two legislative modes in term of preventive function, hoping to provide a reference direction for legislation on dangerous driving behavior through the research mode of comparative law.