guiding cases in perspective tm 指导性案例 透视...gc32 quite clearly provides the...
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Copyright 2016 by Stanford University
Guiding Cases in PerspectiveTM
指导性案例透视TM
Dr. Mei Gechlik
Founder and Director, China Guiding Cases Project
Minmin Zhang
Associate Managing Editor, China Guiding Cases Project
Liyi Ye and Siqing Li
Editors, China Guiding Cases Project
Guiding Case No. 32: CGCP Annotations
April 30, 2016 Edition∗
∗
The citation of this piece is: Mei Gechlik, Minmin Zhang, Liyi Ye, & Siqing Li, Guiding Case No. 32:
CGCP Annotations, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM, Apr.
30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-32/. The authors thank Oma Lee for assisting in
the translation of the Chinese version of this piece into English and Jordan Corrente Beck for editing the English
version.
Guiding Cases in PerspectiveTM is a unique serial publication of the China Guiding Cases Project that
identifies the original judgments selected by the Supreme People’s Court, examines their transformation into
Guiding Cases, and explores the treatment of the Guiding Cases in subsequent cases.
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I. The Process of Selecting Guiding Case No. 32
A certain ZHANG and a certain JIN, A Dangerous Driving Case (“Guiding Case No.
32” or “GC32”) is one of the guiding cases (“GCs”) included in the eighth batch of GCs
released by the Supreme People’s Court (“SPC”) on December 18, 2014.1 Its original
judgment is the (2012) Pu Xing Chu Zi No. 4245 Criminal Judgment rendered by the
Shanghai Pudong New Area People’s Court.2
This case was selected as a GC through the following process (see Chart 1):3
1. The case was reported by the Shanghai Pudong New Area People’s Court to the
Higher People’s Court of Shanghai Municipality, whose adjudication committee then
considered this case to be of typical nature and decided to recommend it as a
candidate GC to the Office for the Work on Case Guidance of the SPC.
2. After research and discussion, the Office for the Work on Case Guidance of the SPC
sent the case to the First and Fifth Criminal Tribunals of the SPC, as well as the Legal
Affairs Bureau and the Traffic Administration Bureau of the Ministry of Public
Security for comment. They all agreed that this case should be a GC. On November
25, 2014, the Adjudication Committee of the SPC agreed to select it as a GC and
released it on December 18.
1 《张某某、金某危险驾驶案》 (A certain ZHANG and a certain JIN, A Dangerous Driving Case),
STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC32), Mar. 24, 2015
Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-32. 2 《张某某、金某危险驾驶案》(2012)津高民三终字第 3 号 (A certain ZHANG and a certain JIN,
A Dangerous Driving Case,(2012) Jin Gao Min San Zhong Zi No. 3), STANFORD LAW SCHOOL CHINA GUIDING
CASES PROJECT, Guiding Cases in PerspectiveTM
, Guiding Case No. 32 Original First-Instance Judgment, Apr.
30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-32/. 3 See 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme
People’s Court), 指导案例 32 号《张某某、金某危险驾驶案》的理解与参照 (Understanding and Referring
to Guiding Case No. 32, A certain ZHANG and a certain JIN, A Dangerous Driving Case), 《人民司法·案例》
(THE PEOPLE’S JUDICATURE·CASES), Issue No. 18 (2015).
For the process of selecting Guiding Cases, see《最高人民法院关于案例指导工作的规定》
(Provisions of the Supreme People’s Court Concerning Work on Case Guidance), passed by the Adjudication
Committee of the Supreme People’s Court on Nov. 15, 2010, issued on and effective as of Nov. 26, 2010,
STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition,
http://cgc.law.stanford.edu/guiding-cases-rules/20101126-english/.
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Chart 1: The Process of Selecting Guiding Case No. 32
II. Comparison Between Guiding Case No. 32 and Its Original Judgment
1. Basic Facts of the Case
Based on the “Basic Facts of the Case” section of GC32, the following table compares
the similarities and differences between GC324 and the original first-instance judgment:
Guiding Case No. 32
Original First-Instance Judgment
1
On February 3, 2012, at approximately 20:20, a certain
ZHANG and a certain JIN, the defendants [in this case],
met to enjoy the thrill of driving [their] high-power
motorcycles. [Before beginning to drive, they] agreed:
“the intersection of Lujiabang Road and South Henan
Road is the destination, and whoever arrives first will
wait for the other”.
Essentially the same.
2
Then, the unlicensed ([and] modified) Honda high-
power two-wheeled motorcycle driven by ZHANG and
the (modified) Yamaha high-power two-wheeled
motorcycle with a counterfeit plate driven by JIN
departed from a dealership [located at] 99 Leyuan Road,
Pudong New District, Shanghai Municipality.
Essentially the same.
4 《张某某、金某危险驾驶案》(A certain ZHANG and a certain JIN, A Dangerous Driving Case),
STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM
, Guiding Case No.
32 Highlighted Edition, Apr. 30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-32/.
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Guiding Case No. 32
Original First-Instance Judgment
[ZHANG and JIN] arrived at the intersection of
Yanggao Road and Jufeng Road, turned around, and
[then] traveled from north to south along Yanggao
Road. [The two subsequently] crossed the Nanpu
Bridge and got off on Lujiabang Road. Afterwards,
[they drove] along South Henan Road through the East
Fuxing Road Tunnel and Zhangyang Road to return to
ZHANG’s residence. The entire route was 28.5
kilometers and passed through multiple bus stations,
residential areas, schools, and large-scale supermarkets.
3
While driving in congested traffic, the two defendants
repeatedly merged into lanes, wove in and out of traffic,
ran multiple red lights, and exceeded speed [limits] by a
large margin. When they arrived at the intersection of
Lujiabang Road and South Henan Road, ZHANG and
JIN encountered an on-duty police inspection, [from
which they] fled, driving along South Henan Road
through the East Fuxing Road Tunnel and Zhangyang
Road. Along [ZHANG and JIN’s route], at the South
Yanggao Road-Pujian Road overpass (60 km/h speed
limit), ZHANG was driving at a speed of 115 km/h and
JIN was driving at a speed of 98 km/h; on the deck of
the Nanpu Bridge (60 km/h speed limit), ZHANG was
driving at a speed of 108 km/h and JIN was driving at a
speed of 108 km/h; on the approach off-ramp from the
Nanpu Bridge to Lujiabang Road (40 km/h speed limit),
ZHANG was driving at a speed of more than 59 km/h
and JIN was driving at a speed of more than 68 km/h;
and at the East Fuxing Road Tunnel (60 km/h speed
limit), ZHANG was driving at a speed of 102 km/h and
JIN was driving at a speed of 99 km/h.
Essentially the same.
4
On February 5, 2012, at approximately 21:00, defendant
ZHANG, after being arrested for questioning, truthfully
confessed to the aforementioned facts and provided a
public security organ with defendant JIN’s cellular
phone number. JIN, after receiving notice by phone
from the public security organ, voluntarily surrendered
on February 6 at approximately 21:00 and truthfully
confessed to the aforementioned facts.
Essentially the same.
Overall, the “Basic Facts of the Case” section of GC32 is largely based on the original
first-instance judgment.
2. Reasons for the Adjudication
The Shanghai Pudong New Area People’s Court rendered the first-instance judgment:
[the court determines that] defendant ZHANG committed the crime of dangerous driving and
[therefore] sentences [him] to four months’ detention with four months’ suspension of
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sentence and fines [him] four thousand renminbi; [the court determines that] defendant JIN
committed the crime of dangerous driving and [therefore] sentences [him] to three months’
detention with three months’ suspension of sentence and fines [him] three thousand renminbi.
After the judgment was pronounced, the two defendants did not appeal. The judgment has
already come into legal effect.
GC32 quite clearly provides the adjudication reasons of the Shanghai Pudong New
Area People’s Court, but there are still differences. Based on the “Reasons for the
Adjudication” section of GC32, the following table compares the similarities and differences
between GC32 and the original first-instance judgment:
Guiding Case No. 32
Original First-Instance Judgment
1
According to Article 133A, Paragraph 1 of the Criminal
Law of the People’s Republic of China, “where [a
person] drives a motor vehicle on a road to chase-and-
compete under execrable circumstances,” [this]
constitutes the crime of dangerous driving. “Chase-
and-compete driving” under the Criminal Law generally
refers to acts where the perpetrators, [at least] two
people, out of competitiveness, pursuit of thrill,
vindictiveness, or other motives, separately drive motor
vehicles, violate road traffic safety provisions, and drive
speedily to pursue [other vehicles] on a road.
Essentially the same, but in the section where
the court states what it opines (i.e., where the
court explains the reasoning for its decision),
only the phrase “according to the legal
provisions” is used, without any reference to
Article 133A. In the legal basis section, the
court states its holding is “according to” a
few legal provisions, including “Article
133A of the Criminal Law of the People’s
Republic of China”, without any discussion
of Article 133A.
2
In this case, looking at the subjective mental attitude [of
the defendants] toward driving, the two defendants,
ZHANG and JIN, after [being arrested for] questioning,
confessed in turn that “in [their] hearts [they] wanted to
find a little pleasure and thrill” and that they “gained
psychological satisfaction from weaving [in and out of
traffic] and overtaking [other vehicles] on the road”.
When faced with a red light, [they] “were
uncomfortable braking and passed every car” and
“changed lanes, zigzagged, and then overtook any car
ahead”. The aforementioned confessions of the two
defendants [together with] related audio-visual
materials were mutually confirming and could reflect
[the defendants’] competitive psychology [and desire
to] pursue thrill and show off their driving skills.
Looking at the two defendants’ objective acts, their
[acts]including driving modified motorcycles with
excessively high-power and, in pursuit of [the thrill of]
speed, changing lanes multiple times at will, running
red lights, exceeding speed [limits] by a large
marginseriously violated the rules. Looking at [their]
driving route, the two defendants departed together
from 99 Leyuan Road, Pudong New District, met at the
intersection of Lujiabang Road and South Henan Road,
and agreed on the start and end points of [their]
competitive driving. In conclusion, [it] could be
determined that the acts of the two defendants
Essentially the same.
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Guiding Case No. 32
Original First-Instance Judgment
constituted “chase-and-compete driving” [as required]
for the crime of dangerous driving.
3
On [the issue of] whether the acts of the defendants
should be considered “execrable circumstances,” [the
court] should, based on [various] factors [including] the
specific implementation of their chase-and-compete
driving, the degree of harm [caused or threatened], the
harmful consequences caused, comprehensively analyze
whether the degree of threat [that they posed] to road
traffic order and the safety of lives and property of an
unspecified number of people was “execrable”
Essentially the same, but without any
phrasing grouping the factors to be
considered into three categories. In contrast
to the GC’s “should, based on [various]
factors [including] the specific
implementation of their chase-and-compete
driving, the degree of harm [caused or
threatened], the harmful consequences
caused”, the judgment only lists a few
loosely connected factors for consideration.
4
In this case, although the acts of the two defendants’
chase-and-compete driving did not cause casualties or
property damage, [the acts] were “execrable
circumstances” [as required] for the crime of dangerous
driving based on the following analysis: First, looking
at the vehicles being driven, the two defendants were
driving high-powered modified motorcycles without a
license plate and with a counterfeit plate[, respectively].
Second, looking at [the defendants’] driving speed, their
overall driving speed was very high and exceeded speed
limits by more than 50% at many sections of the road.
Third, looking at the manner of driving, [the two
defendants] repeatedly merged lanes, wove in and out
of the cars in front [of them], and ran multiple red
lights. Fourth, looking at [the two defendants’]
attitudes toward law enforcement, the two defendants
fled when [encountering] the police inspection. Fifth,
looking at the driving route, the [roads] traversed [by
the two defendants], [including] Gaoyang Road,
Zhangyang Road, the Nanpu Bridge, and the Fuxing
East Road Tunnel, were all main roads of the city.
Along this route were multiple schools, bus and subway
stations, residential areas, large-scale supermarkets, etc.
Traffic volume was relatively high. The driving
distance was relatively long. With the thrill of high-
speed driving and their anxiety about evading the police
inspection, [they] extremely easily [could have] caused
severe and execrable traffic accidents. The
aforementioned acts caused certain danger to public
traffic safety, and were sufficient to endanger other
people’s lives and property. Therefore, [it] could be
determined that the two defendants’ acts of chase-and-
compete driving were “execrable circumstances” [as
required] for the crime of dangerous driving.
Essentially the same.
5
Defendant ZHANG, after [being arrested for]
questioning, truthfully confessed to the crime that [he]
had committed and [therefore his] punishment could be
reduced in accordance with law. Defendant JIN
Essentially the same, but the phrase “their
acts did not actually cause harmful
consequences” is used in contrast to the GC’s
more specific expression: “their acts did not
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Guiding Case No. 32
Original First-Instance Judgment
voluntarily surrendered and [therefore his] punishment
could also be reduced in accordance with law. Given
that the two defendants both recognized at trial the
illegality and social harm of [their] acts, promised to not
carry out the acts of dangerous driving again, and
expressed multiple times [their] acknowledgement of
guilt and repentance, [together with the fact] that their
acts did not cause any personal injury or property
damage, [the court] accordingly rendered the above
judgment in accordance with law.
cause any personal injury or property
damage”. (emphasis added)
Overall, there are quite a few differences between the “Reasons for the Adjudication”
section of GC32 and the original first-instance judgment. The analysis of these differences
touches on the reasons for selecting the case as a GC, which are discussed below.
III. Reasons for Selecting Guiding Case No. 32
Article 133A was added in the eighth amendment of Criminal Law of the People’s
Republic of China. Article 133A provides:5
Where [a person] drives a motor vehicle on a road to chase-and-compete
under execrable circumstances or drives a motor vehicle on a road while
being drunk, he shall be sentenced to detention and a fine.
Where [a person engages in] acts mentioned in the preceding paragraph and, at
the same time, [those acts] constitute the commission of other crimes, he shall
be convicted and punished in accordance with the provisions of the crime that
imposes the heavier penalty. (emphasis added)
This amendment identifies certain acts of chase-and-compete driving as a crime for
the first time, but does not provide clear definitions for “chase-and-compete driving” and
“execrable circumstances”. This resulted in a situation where the crime of “chase-and-
compete driving” could not be effectively combated; despite the underlying actions being
quite common, convicted cases were few, as courts did not have the tools to effectively
5 《中华人民共和国刑法修正案(八)》 (Amendment (VIII) to the Criminal Law of the People's
Republic of China), passed and issued on Feb. 25, 2011, effective as of May 1, 2011,
http://www.npc.gov.cn/npc/xinwen/2011-02/25/content_1625679.htm.
While changes were made to Article 133A when the Criminal Law of the People's Republic of China
was amended for the ninth time, these changes did not affect the portion of the Article that relates to “chase-and-
compete driving”. 《中华人民共和国刑法修正案(九)》(Amendment (IX) to the Criminal Law of the
People's Republic of China), passed and issued on Aug. 29, 2015, effective as of Nov. 1, 2015,
http://news.xinhuanet.com/legal/2015-08/30/c_1116414724.htm。《中华人民共和国刑法》(Criminal Law of
the People’s Republic of China), passed on July 1, 1979, issued on July 6, 1979, effective as of Jan. 1, 1980,
amended nine times, most recently on Aug. 29, 2015, effective as of Nov. 1, 2015,
http://pkulaw.cn/bzk/LawDetails.aspx?lawid=256346.
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identify the crime.6 The SPC responded by releasing GC 32. The Main Points of the
Adjudication of GC32 read:
1. Where a motor vehicle driver, out of competitiveness, pursuit of thrill,
vindictiveness, or other motives, zigzags and drives speedily to pursue
[other vehicles] on a road, [such driving] is “chase-and-compete driving”,
as set forth in Article 133A of the Criminal Law of the People’s Republic
of China.
2. Where chase-and-compete driving does not cause casualties or property
damage, but [is found to] sufficiently endanger other people’s lives and
property [based on] a comprehensive consideration of severe violations of
the Road Traffic Safety Law, [including] speeding, running red lights,
aggressive overtaking, and resisting traffic law enforcement, the
circumstances are “execrable circumstances” [as required] for the crime of
dangerous driving.
In other words, a determination of “chase-and-compete driving” requires a comprehensive
consideration of “the perpetrator’s subjective state and objective acts” so as to achieve the
principle of “unity of subjective and objective [factors]”.7 Regarding a determination of
“execrable circumstances”, the Office for the Work on Case Guidance of the SPC explains:
The crime of dangerous driving is a new crime added to the “crime of
endangering public safety” stated in Chapter Two of the Criminal Law. The
object of harm is mainly road traffic order, and, at the same time, [the crime]
also threatens the safety of lives and property of an unspecified number of
people. The “execrable circumstances” element of the crime chase-and-
compete-type dangerous driving is critical to a determination that an act of
chase-and-compete driving amounts to a crime. In general, the determination
requires one to combine various factors, including the specific implementation
of the chase-and-compete driving, as well as the degree and consequences of
the harm caused, to analyze whether the degree of threat that the act posed to
road traffic order and the safety of lives and property of an unspecified
number of people was “execrable”.8
GC32 clarifies the standards to be used in making a determination of “chase-and-
compete driving” and “execrable circumstances” as set forth in Article 133A of the Criminal
Law. This helps control and prevent such actions and promote public traffic order and safety.
6 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme
People’s Court), supra note 3, at 4. See 杨维宇 (YANG Weiyu), 浅析危险驾驶罪的犯罪构成及认定 (An
Analysis of the Constitution and the Determination of the Crime of Dangerous Driving), 《四川省高级人民法
院审判实务研究》(TRIAL RESEARCH OF THE HIGHER PEOPLE’S COURT IN SICHUAN PROVINCE, Sept. 30, 2013,
http://www.sccourt.gov.cn/trial_practice/201111/5446.html. 7 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme
People’s Court), supra note 3, at 5. 8 Id.
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It is for this reason that GC32 was selected.9
IV. Brief Comments
With respect to the similarities and differences between GC32 and the original first-
instance judgment and to the reasons for selecting the case as a GC, the authors have the
following observations.
1. The Scope of the “Main Points of the Adjudication” Section of GC32 is Broader
than the Facts of the Underlying Case
The “Main Points of the Adjudication” section of all GCs is added by the SPC when it
prepares a selected judgment as a GC. Article 9 of the Detailed Implementing Rules on the
“Provisions of the Supreme People’s Court Concerning Work on Case Guidance”10
provides:
Where a case being adjudicated is, in terms of the basic facts and application
of law, similar to a Guiding Case released by the Supreme People’s Court, the
[deciding] people’s court at any level should refer to the “Main Points of the
Adjudication” of that relevant Guiding Case to render its ruling or judgment.
It is thus clear that the “Main Points of the Adjudication” are important. Their scope should
closely follow the material facts of the GC.
GC32 provides a good example to show which facts are not material facts and thus
need not be included in the “Main Points of the Adjudication”. In this case, the two
perpetrators drove in the same direction and agreed upon a common destination. The first
paragraph of the Main Points of the Adjudication of GC32 provides: “Where a motor vehicle
driver, out of competitiveness, pursuit of thrill, vindictiveness, or other motives, zigzags and
drives speedily to pursue [other vehicles] on a road, [such driving] is “chase-and-compete
driving”, as set forth in Article 133A of the Criminal Law of the People’s Republic of China.”
The paragraph does not mention the number of motor vehicle drivers or whether a destination
was agreed upon. According to the Office for the Work on Case Guidance of the SPC, the
lack of reference to such information is due to the fact that, in practice, those who drive a
motor vehicle on a road to chase-and-compete may not exhibit the same fact pattern. The
Office writes:11
Regardless of the number of motor vehicle drivers, whether the starting and
ending points of driving were agreed upon, or whether [the vehicles were]
9 See id. at 4. 10
《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the
“Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication
Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015,
STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition,
http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english/. 11
See 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme
People’s Court), supra note 3, at 5.
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driving in the same direction or opposite directions, [a driver’s act] can be
determined as chase-and-compete driving as long as he drives a motor vehicle
in such a way that he zigzags and drives speedily to pursue [other vehicles] on
a road.
In the authors’ opinion, the number of motor vehicle drivers, whether these drivers were
driving in the same direction, and whether a common driving destination was agreed upon are
not the material facts of this case. Therefore, the “Main Points of the Adjudication” does not
need to have any reference to these details.
2. The Definition of “Chase-and-Compete Driving” in GC32 is Unclear
The “Reasons for the Adjudication” section of GC32 provides:
“Chase-and-compete driving” under the Criminal Law generally refers to acts
where the perpetrators, [at least] two people, out of competitiveness, pursuit of
thrill, vindictiveness, or other motives, separately drive motor vehicles, violate
road traffic safety provisions, and drive speedily to pursue [other vehicles] on
a road.
However, the “Main Points of the Adjudication” section in GC32 describes “chase-and-
compete driving” as “a motor vehicle driver, out of competitiveness, pursuit of thrill,
vindictiveness, or other motives, zigzags and drives speedily to pursue [other vehicles] on a
road”. It does not mention the “violat[ion of] road traffic safety provisions”. In subsequent
cases, if a motor vehicle driver “out of competitiveness, pursuit of thrill, vindictiveness, or
other motives, zigzags and drives speedily to pursue [other vehicles] on a road”, but does not
“violate road traffic safety provisions”, would this still be chase-and-compete driving under
the crime of dangerous driving? That the GC does not clarify whether violation of a road
traffic safety provision is necessary for a determination of chase-and-compete driving will
pose problems for courts in subsequent judicial adjudication.