Drunk Driving as Criminal Offense, or Not.

Posted on May 12, 2011

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Lately I noticed that lots of discussions in Chinese media on laws and regulations are related to driving. Two of the recent heated debates in this category are about the organ donor registration for drivers and the recent inclusion of drunk driving as a criminal offense in the Criminal Law. To average Chinese families, owning cars and driving are only a recent family affair, yet it has become many Chinese’s new favorite. Now China has perhaps the fastest growing population on wheels in the world. Car sale in China surpassed the U.S. in 2009 (The Guardian), and 13.8 million passenger cars were sold in China in 2010 (Reuters). As more Chinese are behind the wheal, any new law or regulation related to driving is under closer scrutiny of more Chinese and likely to stir up heated debates.

The recent criminalization of drunk driving, and the Deputy Chief Justice of China, Mr. Zhang Jun’s comments on the interpretation of the Law have triggered such heated debates. Under the 8th Amendment to the Criminal Law passed by the Standing Committee of the People’s Congress on February 25, 2011, drunk driving is a criminal offense, and the driver is subject to imprisonment and a fine. Since the Amendment became effective on May 1, many drunk driving arrests have been reported across China, including a high-profile case involving, Gao Xiaosong, one of China’s best-known song-writers and producers.

At a national conference on criminal law held on May 10, Chief Justice Zhang Jun commented on the 8th Amendment that where criminal cases are involved, the courts at all levels must be “cautious” and “not to interpret the 8th Amendment literally.” He emphasized that the judgment should be in line with the amended Law on Road Traffic Safety (Xihua). In other words, Zhang interpreted that to determine drunk driving as a criminal offense, the court needs to consider each incident of offense. Following Zhang’s interpretation, the judgement should be based on the severity of the consequence of the driver’s action, which is determined by whether the action has caused an accident and, if yes, the severity of the accident.

Zhang’s comments and his interpretation of the 8th Amendment to the Criminal Law immediately stirred up debates both in the legal circles and in the public. For instance, an article on opinion.hexun.com presented two opposing views from two attorneys. Liu Changsong, attorney, argued that “any interpretation of the law on the substance rather than wording is not interpreting the law, but creating it.” Liu pointed out that the making of this Law was based on extensive research and public deliberation. In response to the severity argument, Liu argued that the severity of the consequences of the driver’s action should be based on the blood alcohol concentration, rather than whether the driver has caused accidents or the severity of the accidents.

Liu’s view is supported by law professor Wang Mingliang at Fudan University in Shanghai. Wang pointed out that dangerous driving is an offense by action that does not require its causing severe accidents to be punished as a criminal offense. Wang held that drunk driving does not equal traffic offenses whose judgment is determined by the severity of the accident.

On the other hand, Sun Ruizhu, attorney, argued that it is unreasonable to treat all drunk driving cases equally. “When a man drives after having a bottle of beer,” he said, “he hasn’t caused others loss of property or lives, nor has he hurt others’ will, but he is judged as a criminal and prosecuted by the Criminal Law, and this is not reasonable according to common sense.” He also argued that there is a tendency of severe punishment in the Chinese legal system, and “this reliance on severe punishment is a sign of short-sightedness in managing the country.”

These two views represent the division in the legal circles on new issues such as this one. In a way, they reflect the tension between the traditional tendency to contextualize legal cases in China, which heavily depends on the judge’s opinions, and the “Western” judicial tradition that is strictly based on the written law.

In public media, many netizens are critical of Zhang’s comments and attitude. For Chinese public, Zhang’s comments are no more than excuses for those in power, that is, government officials, rich business people, and celebrities, to get away with their irresponsible acts. In deed, several high profile drunk driving cases in the past few years involved these privileged citizens. As a blogger 肚大乃容 wrote, Zhang’s comments are to first help the powerful and the rich drunk drivers get away with their crimes, and second, to confuse the local low enforment and turn “rule of law” to “rule of man.” He jokingly complained that “some say that China’s laws are the best laws in the world, but the ones who practice law–the judges–have the least power to execute law” because they have to follow the Deputy Chief Justice’s order. Exasperated, this blogger concluded his post with the following passage:

One is one, and two is two; in front of the clear stipulation of the law, as the leader of the highest judicial entity of the country, why did [Zhang] have to conjure up a different interpretation? As a driver, as a Chinese citizen, I very much hope that this Deputy Chief Justice can work a bit harder, and give us some examples of what types of drunk driving are not considered criminal offenses and are not punishable, so that we can firmly abide by the law in our daily lives!

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