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现行法律将逃逸规定为交通肇事罪的加重处罚情节,看似解决了对逃逸评价的问题,实则使实践界陷入“同罪不同罚”、“罪与非罪”、模糊处理、不良导向等尴尬境地。本文从公检法三家在处理该类案件中存在的问题出发,剖析在司法实践中判断逃逸是定罪情节还是量刑情节时存在的盲点,分析造成上述尴尬境地的原因,进而破解难题——增设交通肇事逃逸罪,厘清该罪与交通肇事罪的关系,对肇事行为和逃逸行为分别评价,可以解决理论界关于交通肇事罪故意与过失并存、突破共同犯罪理论的诟病。文章最后对交通肇事逃逸罪的设立提出立法建议,建议比照故意伤害罪,降低该罪的入罪标准、完善量刑幅度等。
The existing law stipulates that escape should be defined as the aggravating circumstance of crime of traffic accident, which seems to solve the problem of escaping appraisement, but in fact causes the practice community to fall into the category of “punishments of different punishments”, “crimes of sin and innocence”, obfuscation, Guidance and other embarrassing situations. In this paper, the three methods of public security prosecutors in dealing with the problems of such cases, the analysis of judgments in the judicial practice to determine the escape is a conviction plot or the circumstances of the sentencing the existence of blind spots, analyze the causes of the above embarrassing situation, thus solving the problem - additional traffic accident escape To clarify the relationship between the crime and the crime of traffic accident, and to separately evaluate the accident and escape behavior, which can solve the criticism that the theory circles coexist intentionally and negligently on crime of traffic accident and break the theory of common crime. At last, the article puts forward the legislative suggestion on the establishment of the crime of traffic jerk escaping. It is suggested that the crime of intentional assault should be compared with the standard of reducing the crime, and the range of sentencing should be improved.