Author: 2016-12-28

【Abstract】 In recent years, with the vigorous development of market economy and China's transportation industry, traffic accident cases are increasing year by year, and traffic accident escape cases are also on the rise, which has seriously endangered the lives and health of the people and property safety, and has become a social problem that cannot be ignored. Therefore, it is of great significance to study the issues related to escape after a traffic accident. Based on judicial cases, this paper defines the traffic accident escape from the subjective aspects, objective aspects and spatial elements, and then makes a specific and in-depth analysis and summary of the classification of traffic accident escape from the perspective of Chinese laws and current judicial interpretations. Finally, it puts forward countermeasures to improve the legislation of traffic accident escape in China, In order to better implement the principle of a legally prescribed crime and the principle of suiting crime, responsibility and punishment, more effectively crack down on hit and run behavior, and effectively safeguard the authority of national laws.

【Key words】 Traffic accident escape definition countermeasures

introduction

The crime of causing traffic accidents refers to the act of violating traffic and transportation management laws and regulations, resulting in serious accidents, causing serious injuries, deaths or heavy losses of public and private property. In recent years, with the vigorous development of market economy and China's transportation industry, traffic accident cases are increasing year by year, and traffic accident escape cases are also on the rise, which has seriously endangered the lives and health of the people and property safety, and has become a social problem that cannot be ignored. Therefore, it is of great significance to study the issues related to escape after a traffic accident.

The first criminal code passed in 1979 did not specifically stipulate the escape behavior in traffic accidents. However, in practice, many people fled after the traffic accident, which caused great difficulties to the investigation of the case. In particular, some people who caused serious injuries on the spot should be rescued and could not be rescued. They fled for fear of crime, so that the victim could not avoid death because of losing the rescue time. The consequences and circumstances are very serious, and must be severely punished. On August 12, 1987, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the Notice on Strictly Handling Road Traffic Accident Cases in accordance with the Law, which stipulated that "committing a traffic accident crime and fleeing for fear of crime" should be regarded as the circumstances of heavier punishment. In 1997, the Criminal Law specifically stipulated in Article 133 that "those who escape after a traffic accident or have other particularly bad circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; those who escape and cause death shall be sentenced to fixed-term imprisonment of not less than seven years. Because the problem of hit and run involves many theoretical problems, it leads to different opinions when dealing with such cases in judicial practice. Therefore, on November 10, 2000, the Supreme People's Court issued the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents (hereinafter referred to as the Interpretation), which makes comprehensive and detailed provisions on issues related to criminal cases of traffic accidents, including the escape of traffic accidents. The Interpretation is undoubtedly of great significance for the unified guidance of judicial practice, but it does not end the further discussion of the escape behavior in traffic accidents in the criminal law theory, and some specific provisions of its own have caused huge disputes in the criminal law theoretical and practical circles. Therefore, this paper attempts to conduct a systematic and specialized study of the hit and run behavior and its related issues, and put forward its own views on the controversial issues, with a view to promoting the improvement of China's criminal law theory and criminal legislation.

1、 Definition of hit and run

The crime of causing traffic accidents is one of the negligent crimes of responsibility accident type stipulated in the criminal law of our country. Article 133 of the Criminal Law of China stipulates: "Whoever violates the traffic and transportation management laws and regulations, thereby causing serious injury, death or heavy losses of public or private property to a person, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; whoever escapes after a traffic accident or has other especially vicious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; whoever escapes and causes death to a person, shall be sentenced to fixed-term imprisonment of not less than seven years.", There are three sentencing ranges, namely for general traffic accidents, escape after traffic accidents and "death caused by escape".

At present, the understanding of the concept of hit and run in the criminal law academia is different, which undoubtedly brings difficulties to the identification of hit and run behavior. At present, from the perspective of laws, relevant judicial interpretations and academic discussions, there are generally three views: the first is according to the provisions of Article 2 of the Regulations of the Ministry of Public Security on the Investigation and Seizure of Traffic Accident Escape Cases on June 20, 1995: the case of escape after a traffic accident refers to the case where a party intentionally drives or abandons a vehicle to escape from the scene of a traffic accident after a road traffic accident. "Escape" refers to the act of escaping from the scene of the accident. The second is the provision in Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents: "Escape after a traffic accident", which refers to the behavior of the perpetrator who has one of the circumstances specified in Paragraph 1 of Article 2 and Items (1) to (5) of Paragraph 2 of this Interpretation and escapes from legal investigation after a traffic accident. The third is pointed out in Chen Xingliang's Commentary on Criminal Law, "Escape refers to the act of escaping from legal investigation without reporting to the police and protecting the scene in accordance with the law after a traffic accident."

It should be said that these three statements look at the escape behavior after a traffic accident from different perspectives. All have certain rationality, but they fail to comprehensively summarize the meaning of escape behavior after traffic accident. The author believes that to judge whether an act belongs to "escape after traffic accident", it should be analyzed from the following aspects:

（1） Subjective aspects of escape after a traffic accident

The subjective motive of escaping after a traffic accident is that the actor runs away in order to avoid the rescue obligation and accountability, knowing that a traffic accident has occurred. This motive is a positive psychological activity. Although the traffic accident crime is a negligent crime, it has a direct intention of behavior only in terms of escape behavior. Therefore, only when the perpetrator is aware of the act of causing a traffic accident and has a direct criminal intention to escape, can he escape after a traffic accident. If the actor leaves the scene without realizing the occurrence of the traffic accident, it cannot be deemed as "escape after traffic accident". For example, when Sun was driving a two wheeled motorcycle to carry his friend Liu (both of whom drank too much) over the speed limit, Liu fell off the motorcycle and landed on his head due to bumps on the road, causing brain injury and death on the spot. At that time, Sun knew nothing about this and continued to drive wildly until he was found intercepted. In this case, although Sun left the scene, he was not "aware" of the traffic accident of Liu falling to the ground subjectively, so it is not appropriate to identify him as "escaping after a traffic accident", but only as a general traffic accident crime.

It should be emphasized that the "knowing" here means that the perpetrator "knows" or "should know". If the perpetrator "should know" that his behavior causes a traffic accident and pretends not to know, and escapes from the scene of the accident, it should still be considered as "escaping after a traffic accident". Of course, in practice, the motive of the perpetrator to escape also has other manifestations, such as fear of being beaten by the victim's relatives and friends and other onlookers to escape. If these perpetrators are willing to accept legal treatment by reporting to the leader or calling the police soon after fleeing the scene, this situation must be treated differently in judicial practice. From the perspective of subjective motivation, it is the fear of on-site consequences. On the contrary, if the perpetrator escapes for fear of being beaten, but fails to report the case, the author believes that escape should be punished. Because the law regards the escape behavior as a heavier punishment, considering that if the scene can be kept intact, it will help to clarify the responsibility. If the perpetrator escapes, it is obviously not conducive to the solution of the accident; Secondly, the perpetrator did not report the case after escaping, which shows that he has taken a laissez faire attitude towards the consequences of the accident. Its subjective malignancy and personal danger are obviously much greater than that of not escaping. Therefore, it is obviously a crime and responsibility not to recognize escape in this situation. Therefore, the author believes that this situation should be identified as escape.

Another situation is that the actor continues to drive and leaves the scene of the accident without knowing the situation of the traffic accident. In this case, the subjective aspect of the actor is the continuation of normal driving behavior, which cannot be considered as "escape". Therefore, in any case, when escaping, the actor must know that his behavior has caused a traffic accident, and have a direct intention to escape, which is the subjective aspect of the actor.

（2） The Objective Aspects of Escape after Traffic Accident

That is, the escape behavior after a traffic accident must comply with the legal provisions. From the perspective of criminal law theory, the most direct way to determine whether the perpetrator constitutes a crime is to identify the objective aspects of the act. The Interpretation of the Supreme People's Court stipulates the behavior of escaping after a traffic accident on the basis of five situations. This can make it clear that escaping after a traffic accident is stipulated as a heavier circumstance for the sentencing of the traffic accident crime. That is to say, if the previous behavior of the perpetrator did not violate the traffic and transportation management regulations, or although there is a traffic violation, the violation has no causal relationship with the result, or the perpetrator only bears the same or secondary responsibility in the traffic accident, or the result of the traffic behavior has not reached the conviction standard for the basic crime of traffic accident, or only one person is seriously injured under the full or main responsibility of the accident, However, those who do not have one of the circumstances specified in the Interpretation, such as drunk driving, unlicensed driving, and unlicensed driving, can not be considered as escaping after a traffic accident even if the perpetrator has fled after the accident.

In addition, the traffic accident behavior of the actor must reach the level of "causing serious injury, death or heavy loss of public and private property" to apply this provision, which is the premise and basis for identifying the escape after a traffic accident. If the perpetrator escapes without causing the above serious consequences, it shall not be deemed that the perpetrator "escapes after a traffic accident", and can only be considered as a heavier case of public security punishment. For example, when an individual driver, Mr. Wu, was driving a taxi over the speed limit, he knocked down Mr. Wang, a pedestrian crossing the road, and made Mr. Wang unconscious. Mr. Wu thought that Mr. Wang had died and drove away. After medical appraisal, Wang was only slightly injured. In this case, although Mr. Wu escaped after a traffic accident, it should not be considered as "escape after a traffic accident".

（3） Spatial Elements of Escape Behavior after Traffic Accident

That is, is the escape behavior after a traffic accident limited to "escape from the scene of the accident"? In Article 2 of the Regulations of the Ministry of Public Security on the Investigation and Arrest of Traffic Accident Escape Cases, the expression "escape from the scene of traffic accident" is inappropriate. In judicial practice, there is such a situation that although the perpetrator did not escape from the scene after the traffic accident (some could not escape), he ran away after sending the injured to the hospital or waiting for the traffic police department to deal with him. How to identify this escape behavior? Obviously, both the subjective and objective aspects are consistent with the composition of the escape behavior after the traffic accident, which should be severely punished by the law. In practice, when the court is trying traffic accident cases, some judges often think that the crime of traffic accident is a negligent crime, and the subjective malignancy of the perpetrator is not deep. Therefore, it is not appropriate to deal with it too heavily, and the specific grasp scale should also be wide rather than strict. Therefore, the time and space of escape behavior should be defined as necessary, that is, when the accident occurred and the scene of the accident, and those who escape within this time and space, Can be identified as escape. However, the author believes that since the escapee has chosen to escape, it shows that the perpetrator is subjectively vicious and should be identified as escaping, which also implements the principle of suiting crime, responsibility and punishment to a certain extent. Therefore, the identification should be moderate, not too strict or too lenient, so the provision of Article 3 of the Interpretation is more reasonable. "Escape after a traffic accident" refers to the act of "escaping to avoid legal investigation" after the accident, not limited to "escaping from the scene of the accident". In addition, the subject of escape behavior after a traffic accident is as long as it conforms to the general subject.

Therefore, from the analysis of the above aspects, the author believes that the more appropriate expression of the escape behavior after the traffic accident should be: after the occurrence of the traffic accident that constitutes the crime of traffic accident, the actor escapes for the purpose of evading rescue obligations or responsibility investigation and other motives.

2、 Types of hit and run

According to the provisions of Article 133 of the revised Criminal Law on the crime of causing traffic accidents and the provisions of the judicial interpretation of the Supreme People's Court, there are three cases of escape after a traffic accident. One is escape as a conviction; Second, escape as aggravating circumstances; The third is the escape that causes death. These three escapes play different roles in conviction and sentencing, and their internal meanings are also different. The following author will analyze these three escapes separately.

（1） Escape of conviction circumstances

Escape in the circumstances of conviction refers to the provision of Item (6), Paragraph 2, Article 2 of the Interpretation. If more than one person is seriously injured in a traffic accident, if the circumstances specified in Items (1) to (2) are not met, it would not constitute a crime, but if "fleeing from the scene of the accident to avoid legal investigation", it would constitute a crime. This is obviously taking the escape behavior after the traffic accident as the constitutive element of the traffic accident crime.

The author believes that Article 133 of the Criminal Law only stipulates escape after a traffic accident as the aggravating circumstances of the second level of the statutory punishment, and does not regard it as a constitutive element of a crime, Therefore, the Interpretation stipulates escape after traffic accident as a constitutive element of the crime of traffic accident, which exceeds the jurisdiction of judicial interpretation and belongs to ultra vires interpretation. In addition, according to the principle of a legally prescribed punishment for a specified crime, there is no provision in the criminal law for a separate conviction and punishment for the act of escape after committing a crime or an illegal act. As far as the escape act after a traffic accident is concerned, if it is necessary to criminalize it, it can be said that it is necessary to criminalize any act of escape after committing any of the crimes specified in the criminal law, but the criminal law does not provide such a provision, Therefore, if the escape behavior is separated from the previous behavior that has constituted the traffic accident crime, it itself does not have the value of independent evaluation.

（2） Escape with aggravating circumstances

In order to facilitate the distinction between escape and death causing escape, we will call the escape with aggravating circumstances as simple escape behavior.

The so-called escape means to escape from the environment or things that are not conducive to oneself. As the second aggravating circumstance in Article 133 of the Criminal Law, the simple escape behavior needs to have both subjective and objective characteristics. According to Article 70 of the Road Traffic Safety Law of the People's Republic of China, in case of a traffic accident on the road, the driver of the vehicle shall stop immediately to protect the scene. If personal injury or death is caused, the driver of the vehicle shall rescue the injured immediately and report to the traffic police on duty or the traffic management department of the public security organ quickly. If the scene is changed due to the rescue of the injured, the location shall be indicated. According to this, we can see that the party involved in the traffic accident has the obligation to stop immediately, protect the scene, rescue the injured, etc. The behavior that the perpetrator escapes from the scene of the accident in order to avoid legal investigation is essentially an omission that should be performed and has the ability to perform but does not perform legal obligations.

According to the second file of Article 133 of the Criminal Law, the elements of simple escape behavior mainly include the following:

(l) The simple escape behavior with aggravating circumstances must be based on the establishment of traffic accident crime

The simple aggravating circumstances crime is composed of the basic crime combined with the simple aggravating circumstances, and the specific provisions clearly stipulate a heavier statutory punishment. The so-called basic crime refers to the act performed by the perpetrator has met the requirements of the general circumstances of a crime specified in the specific provisions of the Criminal Law, while the simple serious circumstances, although beyond the constitutive scope of the basic crime, do not belong to the constitutive elements of the basic crime, but this transcendence cannot change or reduce the constitutive elements of the basic crime. The simple serious circumstances in the aggravated circumstances crime are relative to the basic crime, and they only play a role in sentencing, and the process of sentencing must be based on the premise that the basic crime facts are fully possessed. Only when the basic crime has been constituted, can it be possible to explore the constitution of simple aggravated crime. The basic crime and the simple aggravating circumstances are two inseparable organic components of the simple aggravating circumstances crime, and neither of them is dispensable. The basic crime is the premise or basis of the simple aggravating circumstances, and the simple aggravating circumstances are nothing but the adhesive on them, which cannot exist independently from the basic crime.

(2) Objective performance of simple escape behavior

The objective aspect of escape behavior is to escape, to avoid, and in judicial practice it is often manifested as fleeing from the scene of the accident. For example, on October 2, 1985, when Zhang was driving through a county town, he dared not turn on the lights or honk his horn on the dark road because he was driving without a license, so he killed a pedestrian when speeding. After the crime, Zhang continued to escape and was later captured. In this case, a major traffic accident that caused one person's death due to Zhang's violation of road traffic management regulations due to driving without a license meets the constitutive requirements of the traffic accident crime, that is, the traffic accident crime is established. After the accident, Zhang did not perform his obligations of stopping immediately, reporting to the police and rescuing the injured. Instead, he drove away, which was a typical simple escape behavior after a traffic accident. However, under certain circumstances, the behavior of the perpetrator at the crime scene can also be regarded as escape. If A steals a car to play, and bumps B into a serious injury on the way. Seeing that there is no one on the road, A hides in the trees beside the road after contacting the nearby hospital, and escapes after the rescue personnel come to take the victim to the hospital. At this time, A's behavior still constitutes escape. Because although Party A did not escape from the scene of the accident after the accident, the act of hiding without performing the obligation of rescuing and reporting to the police to avoid legal investigation fully meets the objective requirements of escape. In addition, some perpetrators send the victim to the hospital and leave after leaving the contact method. If they leave a false contact method, it is equivalent to the situation of evading legal investigation even though they have fulfilled their rescue obligations. It also belongs to escape after the accident. The author believes that although the latter two acts belong to the simple escape situation stipulated by law, they are different from the typical simple escape behavior in the first example. In the first example, the behavior of the actor who fled directly from the scene of the accident without taking any measures shows the actor's bad subjective malignancy; In the latter two cases, although the perpetrator personally fulfilled the obligation of assistance, the behavior of actively contacting the hospital to help the victim showed that the perpetrator was only to avoid legal investigation and still had compassion for the victim. Therefore, although the above three cases are in line with the second level of statutory punishment, the specific sentencing should be different.

(3) The Subjective Motivation of Simple Escape Behavior

As mentioned earlier, escaping after a traffic accident is not just an objective act of simply escaping from the scene, it is a harmful act under the subjective psychological control of the actor. From the subjective psychological perspective of the actor, he has the motivation to escape rescue obligations or responsibility after the accident, which leads to the intentional escape. If there is no such specific motivation, the behavior of the actor leaving the scene will not have the nature of hit and run behavior. For example, a hit and run case handled by the author: at about 9:55 p.m. on October 25, 2006, when Zhang was drunk and driving a small ordinary truck from his work unit, he ran from west to east on the Provincial Highway 75 in Jiaojiang District, Taizhou City to the bridgehead section of Xucun Village, Qiansuo Street, Jiaojiang District, and collided with a rickshaw driven by Wang (male) from west to east on this section. The passenger in the rear compartment of the tricycle was Wang (female), It caused a traffic accident in which Wang Moumou (male) was injured and Wang Moumou (female) was seriously injured and died on the way to hospital. After the accident, Zhang did not stop to check, but drove directly away from the scene. In the early morning of the next day, the public security organ captured Zhang through investigation. It was confirmed that Zhang was fully responsible for the accident. The court of first instance held that the defendant Zhang ignored the road traffic management laws and regulations, caused one person to die by drunk driving, and drove away from the scene after the accident. Zhang's behavior had a direct causal relationship with the death consequences of the victim Wang (female). His behavior had constituted a traffic accident crime, and had aggravated circumstances of traffic accident escape, so he was sentenced to three years and six months of imprisonment. The defendant Zhang Mou refused to accept the judgment of the first instance and entrusted the author to act as the defender of the second instance. He appealed on the grounds that the facts in the original judgment were unclear and the evidence of escape after the accident was judged insufficient, and requested the court of second instance to change the judgment according to law. After hearing, the court of second instance held that the fact that Mr. Zhang was found guilty of traffic accident in the original judgment was unclear, so it ruled to revoke the judgment of first instance and remand him for retrial. In the process of defense, the author focused on whether Zhang had the subjective intention to evade legal investigation, combined with the road conditions, weather, driving route and location of the vehicle at the time of the crime, the part hit by the vehicle, the insurance situation of the vehicle, whether there was any abnormal performance after returning home, whether the human tricycle driven by the victim had reflective devices and whether the clothes they wore had reflective materials, etc, A total of 11 reasons were cited to explain that the party did not find that he ran into the victim and his vehicle at that time, and did not have the subjective intention to hit and run from the traffic accident. The perpetrator, Zhang Mou, also stated that when the case was committed, he only thought that the car hit a stone on the roadside, so he did not care about it in his heart, but directly drove away from the scene. The public prosecution organ could not provide that the perpetrator, Zhang Mou, knew that he ran into the victim, Or knowing that the relevant evidence of a traffic accident that is enough to constitute a traffic accident crime has occurred, the public prosecution organ accused the perpetrator Zhang of insufficient evidence of escape after constituting a traffic accident. The court of first instance reopened the trial of the case, and fully adopted the author's defense view that there was insufficient evidence for Zhang to escape after the traffic accident, sentenced Zhang to commit the crime of traffic accident, sentenced him to two years of fixed-term imprisonment, and suspended his sentence for two years and six months.

（3） Death causing escape

The death caused by escaping is a sentencing circumstance added in the new criminal law, which is heavier than the original traffic accident crime. There is no unified view on how to understand the aggravating circumstances in criminal law theory and judicial practice. The author believes that the death caused by escape refers to the situation where the actor negligently fails to perform the obligation of assistance after causing serious injury in a traffic accident, resulting in the death of the injured due to lack of treatment. The key point is that the actor does not perform the obligation of relief, which can effectively eliminate the ambiguity of understanding. The constituent elements of death causing escape are as follows:

(l) Subjective Elements of Death Escape

Article 133 of the Criminal Law stipulates that the death of a person due to escape shall be sentenced to more than seven years of fixed-term imprisonment. The legislators ignore the complex situation of escape as a general provision of aggravating circumstances for sentencing, giving people the impression that the legislation is too rough, so it is necessary to explore in depth in theory.

The criminal law only stipulates the words "death caused by escape". What is the scope of "person" here? Is it the original injured person, or other people killed by the perpetrator in the process of escape, or both? Different understandings of the scope of "people" will directly lead to different understandings of the subjective sin of "death caused by escape". Therefore, the author will combine the understanding of the scope of "people" to explore the subjective sin of "death caused by escape". There are mainly three different views on the scope of "people" in theory: first, the "people" here are only limited to the victims of previous accidents. Secondly, the "person" here only refers to other people who died during the escape of the perpetrator. Thirdly, the "person" here can refer to both the injured person in the first accident and the victim in the escape process. The author believes that in practice, there will indeed be a series of hit and run cases, but whether the clause "death due to escape" is applicable? The author believes that although the victim died in the process of the actor's escape, the fundamental cause of death does not lie in the escape behavior, that is, the escape behavior has no causal effect on the victim's death in the second accident. The root cause of his death is the behavior of causing trouble again. In this case, the perpetrator has caused another traffic accident and caused death, which is completely a new traffic accident crime or intentional (negligent) homicide that is independent of the previous traffic accident behavior, rather than the aggravating circumstances of the traffic accident crime referred to in Article 133 of the Criminal Law as "death due to escape". Based on the above analysis, the author believes that the scope of "person" in "death due to escape" should be limited to the original injured person, and its subjective sin should be limited to negligence.

(2) Objective Elements of Death Escape

First, there must be escape behavior objectively. Secondly, there must be a causal relationship between the escape behavior and the death result. That is, there is a criminal causality between the death of the victim and the escape of the perpetrator. If the death result of the victim has been caused by the previous traffic accident behavior of the actor, and the actor escapes after the accident, the actor can only apply the second sentencing level of the traffic accident crime. Similarly, if there is sufficient evidence to prove that the actor who escapes after the accident hit the victim, even if immediate assistance can not save the victim's life, the case of "death caused by escape" cannot be applied, Because the death of the victim is still a direct result of the previous traffic accident, the obligation of no assistance has no causal effect on the death.

3、 Reflections on the Legislative Countermeasures to Improve the Escape from Traffic Accidents in China

（1） Separate crime of "no rescue after traffic accident"

It is suggested that China should establish the crime of "no rescue after traffic accident" when legislating on escape behavior, delete the third sentencing circumstance in Article 133 of the current Criminal Law, and repeal the 2000 Interpretation of the Supreme Court. The crime of "no rescue after traffic accident" consists of the following:

1. The direct object of infringement is the complex object, that is, the right to life and health and the right to body of others.

2. The subjective aspect of this crime is indirect intention, that is, escaping after the accident and allowing the victim to die or be seriously injured.

If the perpetrator takes an active action, such as backing up to stab the person, deliberately dragging, transferring or hiding the victim, it constitutes direct intent, and does not fall within the scope of the adjustment of this crime.

3. The objective aspect of this crime is that the participants in the traffic accident fled from the scene or refused to rescue the injured after the traffic accident, causing serious injury or death to others.

4. The subject of this crime is a general subject, which includes not only the personnel engaged in transportation, but also the personnel who are not engaged in transportation, as well as the person in charge of the unit, the vehicle owner, the contractor or the passenger.

Traffic accident behavior is the antecedent behavior that leads to the actor's rescue obligation. So, should the actor's fault in the traffic accident be regarded as the constitutive element of the crime of "no rescue after traffic accident"? In other words, if the perpetrator has fault in the traffic accident, but fails to constitute a traffic accident crime, can the perpetrator constitute a "crime of not providing assistance after a traffic accident"? Further, if the actor is not at fault for the accident, can he become the subject of the crime of not providing assistance after a traffic accident? In Taiwan, where the crime of "hit and run" has been established, the above issues have always been controversial. Clarifying the above two problems is really necessary for the future crime of "no rescue after traffic accident" in China. The author believes that the crime of "no rescue after traffic accident" is a crime independent of the crime of traffic accident. Whether the perpetrator's behavior can constitute a crime of traffic accident, whether the perpetrator has fault in the accident, etc., has nothing to do with the establishment of the crime of "no rescue after traffic accident".

First, from the legislative purpose, the legislative purpose of the crime of "no rescue after traffic accident" has two: one is to protect the victim's right to life and health, and the other is to prevent the fugitive from evading legal responsibility. On the premise of protecting the victims' right to life and health, it is reasonable to believe that the innocent or non major fault perpetrators also have the obligation to rescue the victims. As a participant in a traffic accident, once the accident results in the death or injury of others, the cause of death or injury has something to do with the perpetrator, Article 70 of the Road Traffic Safety Law of the People's Republic of China stipulates that: "In case of a traffic accident on the road, the driver of the vehicle shall stop the vehicle immediately to protect the scene; if personal injury or death is caused, the driver of the vehicle shall rescue the injured immediately and report to the traffic police on duty or the traffic management department of the public security organ quickly. If the scene is changed due to the rescue of the injured, the location shall be indicated. Passengers, passing vehicle drivers and pedestrians shall provide assistance." Therefore, No matter in law or morality, the actor has the duty of salvation; If the perpetrator escapes without assistance, he should be punished, which is the significance of establishing this crime.

Secondly, traffic accident cases have particularity, that is, the urgency of victims' urgent need for assistance conflicts with the slowness of accident liability determination. It is impossible for the party who caused the accident to immediately judge whether his party is at fault and bears multiple responsibilities on the spot, and even if he can make it, his accuracy cannot be proved. In this case, in the face of the victims who are seriously injured and dying, the actor's relief obligation cannot be shirked. If it is believed that only those who can constitute the crime of causing traffic accidents or those who are at fault in causing traffic accidents have the obligation to rescue, then there is a judgment procedure and a corresponding waiting time, but there can be no such waiting time at the scene of the accident where the victim's life is in danger. In this case, the perpetrator whose fault liability is not clear refuses to rescue the victim, resulting in the death of the victim, but because the perpetrator has no fault for the accident or the traffic accident crime cannot be established, the perpetrator does not need to be condemned, which is unacceptable in reason. We can imagine that it would be a mockery of the rule of law if the confident and faultless perpetrators could turn a blind eye to the seriously injured victims of car accidents and leave the scene of the accident at will.

It can be seen that the actor's fault in the traffic accident is not the constitutive element of the crime of no rescue after the traffic accident. Even if the perpetrator has no fault for the accident or has fault but is not enough to become a traffic accident crime, as long as it meets the four constituent elements of the "crime of no rescue after traffic accident" mentioned above, it can still become the subject of the crime.

（2） Connecting the New Crime with Article 133 of the Current Criminal Law

After the establishment of the "crime of no rescue after traffic accident", how to link the establishment of the new crime with the provisions of Article 133 of the current Criminal Law? For this problem, scholars have not covered much in their works. The author believes that because the death or injury caused by escaping from a traffic accident is an indirect intentional crime, what kind of crime should be imposed on the relevant acts should be investigated from the results of escaping. The result of escape behavior may appear in four situations: first, escape that does not constitute a traffic accident crime and does not result in death or serious injury; The second is the escape that constitutes a traffic accident without death or serious injury; The third is escape without causing death or serious injury due to traffic accident; The fourth is the escape that constitutes the crime of causing traffic accident and results in death or serious injury. Because the first two situations are not combined with the result of causing death or serious injury, even though the actor has some "indirect intention" consciousness and will factors, this indirect intention is not combined with the harmful result, which does not meet the constitutive conditions of indirect intentional crime, and therefore does not have independent value of constituting criminal acts. Escape in the last two situations includes both escape behavior after traffic accident and escape, Relevant results exist, so it should be included in the adjustment category of new crimes.

Based on the investigation of the escape result, the author believes that the third sentencing circumstance should be deleted and the second sentencing circumstance should be retained for Article 133 of the current Criminal Law. The second circumstance mentioned above can be adjusted by the second sentencing circumstance; The third and fourth cases can be classified as new crime adjustment. For circumstance 1, since it neither constitutes a traffic accident crime nor meets the constitutive requirements of the new crime, it can be treated as a general illegal act.

Conclusion:

With the rapid development of society and the rapid improvement of people's living standards, cars have gradually entered ordinary families. The increase of vehicles leads to frequent traffic accidents, and traffic accidents have also become a more common crime phenomenon. Various complicated traffic related situations make traffic accident crimes more complicated. The research on traffic accident crimes and related legal norms has also attracted more and more people's attention, and traffic accident escape naturally becomes the focus of attention. This paper attempts to put forward questions and personal opinions from the definition, nature and composition of the hit and run behavior, the identification of the hit and run behavior and the analysis of the existing legal norms, for example, as a participation.

In short, the most direct purpose of theoretical clarification is to unify the judicial application. Only by strictly implementing the principle of a legally prescribed crime and the principle of matching criminal responsibility and punishment, and analyzing specific problems, can we truly and effectively crack down on the behavior of escaping from traffic accidents, truly protect innocent people from being investigated by criminal law, and effectively safeguard the authority of national laws.

[References]

Yu Guiying: Determination of "Four Escape Behaviors" in Traffic Accident Crime, published in Legal Science, 2005, Issue 1, Page: 67

Chen Xingliang: Brief Comments on Criminal Law, China People's Public Security University Press, 1997 edition, page 249

Liu Shulian: The Nature of Traffic Accident Escape, Law Journal, 2005, Issue 2, Page 31

Xiao Zhonghua: On the Determination and Punishment of Traffic Accident Crime, in Zhao Bingzhi's Exploration of Difficult Problems in Criminal Law Practice, People's Court Press, 2002 edition, page 153

Hou Guoyun: On Negligent Crime, People's Publishing House, 1993 edition, page 288

Liu Yanhong: Case Study on Death Caused by Escaping from Traffic Accident, published in Chen Xingliang's Interpretation of Criminal Law, Law Press, 2000, Vol. 2, page 134