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我国《道路交通安全法》第九十一条规定中,第三、四款关于饮酒和醉酒驾驶营运机动车情形的认定,在实务适用过程中,将驾驶“营运机动车”应当确定为驾驶“营运性质”的机动车,还是确定为驾驶“营运活动”的机动车?根据第九十一条各款项排列的内在逻辑,可以看出各款项以社会“危害性”严重程度,逐渐从轻到重的处罚顺序排列。认定酒后驾驶营运机动车的情形应结合是否具有营运活动的危害性,不能仅从驾驶的机动车是否为营运性质而简单认定。网络约车、黑车从事客运等行为,为非营运性质机动车从事营运活动,该期间同样具有更为严重的危害性,而营运性质机动车非营运期间也可能因代步功能而使用,不能一概而论,简单适用与立法本意相悖。
China’s “Road Traffic Safety Law,” the provisions of Article 91, the third and fourth paragraph on drinking and drunk driving operation of motor vehicles found that in the practical application process, the driving “operating motor vehicle ” should be identified as Driving a motor vehicle of “operating nature” or a motor vehicle identified as driving “operating activity”? According to the inherent logic of arranging the various funds in Article 91, it can be seen that each payment is subject to the social “hazard” "Severity, gradually lighter order of punishment. The determination of the driving situation of a drink-driving motor vehicle should be combined with whether it is harmful to the operation and can not be simply determined merely by whether the motor vehicle being driven is operating in nature. Network about car, black car engaged in passenger transport and other activities for the non-operating motor vehicles engaged in operating activities, the same period also have more serious dangers, and the nature of the operation of motor vehicles during non-operation may also be due to the use of substituting functions can not be generalized, Simple and contrary to the legislative intention.