The author believes that how to identify the nature of drug trafficking and smuggling can not be generalized, but should be identified according to the actual situation of the case, the characteristics of criminal behavior and the direct cases violated by it. According to judicial practice and relevant laws and regulations, one of the following circumstances shall be deemed as the crime of drug smuggling:
(1) illegally buying drugs from abroad and selling them after entering the country, or drug smuggling criminals directly instruct others to sell smuggled drugs;
(2) Foreign drug traffickers collude with each other to transport drugs into China for sale;
(3) Drug traffickers transport drugs to third countries or regions via China, or illegally purchase narcotic drugs and psychotropic drugs in China and smuggle them out of the country;
(4) Drug smuggling groups buy or transport drugs, or collude with foreign drug smuggling criminals in border areas to buy, sell or transport drugs.
(5) colluding with drug smugglers to provide them with remuneration, funds or articles, or providing them with convenient conditions such as transportation, storage, mailing and hiding;
(six) knowing that it is a drug smuggling criminal, directly selling drugs to him illegally for resale.
2. Crime of drug trafficking
The crime of drug trafficking refers to the act of reselling or selling self-made opium, heroin, morphine, marijuana, cocaine or other addictive narcotic drugs and psychotropic drugs in violation of anti-drug laws and regulations.
Drug trafficking is a kind of crime with the largest number and widest scope among drug crimes. After drugs are manufactured, they must realize their value and earn huge profits through sales, and most drug addicts also need to buy drugs to meet their own needs. Therefore, drug trafficking is the main channel and central link in the process of drug production and consumption Drug trafficking has become a global problem, and the profit of global illegal drug trade has surpassed that of oil, reaching 500 billion US dollars every year, second only to arms trade. The drug trade has caused the proliferation of drugs around the world, which is an important reason for the increasingly serious other drug crimes. As far as all kinds of drug crimes in China are concerned, the proportion of drug trafficking cases in all drug cases is also extremely high. Whether it is group drug trafficking, individual sporadic drug trafficking or armed drug trafficking, it is on the rise year by year. What is particularly serious is that the phenomenon of "feeding and sucking" among drug addicts is particularly common. Therefore, drug trafficking is the key target of the anti-drug campaign.
Facing the increasingly serious drug harm, all countries in the world take drug trafficking as the key target in various anti-drug legislation. In an anti-drug bill passed by the US Congress 1987, drug trafficking can be sentenced to 5- 10 years in prison, and in severe cases, it can be sentenced to 40 years to life imprisonment. For criminals who sell drugs within 65,438+0,000 feet of the school, the punishment should be doubled to protect teenagers and children. Severely crack down on drug trafficking by other criminal means or by mail. According to Malaysian law, anyone who sells1000g opium, 200g marijuana,15g morphine and15g heroin will be sentenced to death. Iran launched an anti-drug campaign from 65438 to 0988, stipulating that anyone who sells heroin, morphine 30 grams and opium over 5000 grams will be sentenced to death. In addition, the laws of Turkey, Egypt, Indonesia, Saudi Arabia, Sri Lanka, Thailand and other countries stipulate that serious drug traffickers can be sentenced to death. The laws of Greece, Australia, Nigeria, Britain, Japan and other countries stipulate that the maximum penalty for drug trafficking is life imprisonment. In recent years, Russia, Nepal, Cuba, India and many other countries have also revised their anti-drug legislation and imposed extremely severe penalties on the crime of drug trafficking.
The characteristics of the crime of drug trafficking have formed a general theory in academic circles, and the author will not repeat them here. The author only talks about the problem of attempted drug trafficking and criminal temptation in judicial practice. In judicial practice, there is a great controversy about the crime of attempted drug trafficking and the crime of seduction, and academic circles also have different views.
Some scholars believe that the completion of the crime of drug trafficking should be regarded as the completion of the criminal process as long as the drug trafficking is carried out. Some scholars believe that drug trafficking is accomplished through actual transfer to buyers. As for whether the perpetrator obtained benefits after drug transfer, it does not affect the establishment of the accomplished crime. Some scholars believe that drug trafficking itself includes both trafficking and trafficking. Therefore, whether buying or selling, as long as the buying or selling behavior is completed, only one behavior will constitute this crime, not necessarily for the purpose of selling.
Among the above three viewpoints, the second viewpoint attributes drug trafficking to process behavior crime (also known as process crime), and the first and third viewpoints attribute drug trafficking crime to behavior crime. The "drug transfer theory" advocated by the second viewpoint makes the accomplished scope of drug trafficking crime too narrow and undesirable; First, the three viewpoints ignore the importance of drugs as evidence of drug trafficking crimes, because they advocate that as long as drugs are bought and sold, it is generally difficult to determine that they have bought and sold drugs because of the lack of evidence of drug trading in simple negotiations between drug buyers and sellers, which shows that this view also has shortcomings.
The author believes that the success of drug trafficking should be based on whether drugs enter the trading link or not. Whether the perpetrator sells drugs for profit or actually transfers drugs does not affect the establishment of this crime. If drugs fail to enter the trading link due to reasons other than will, it is an attempted crime of drug trafficking. The specific analysis is as follows:
1. According to the characteristics of drug trafficking, drug trafficking crime belongs to behavior crime, not process crime. Drug trafficking usually begins with purchase. As far as drug purchase is concerned, it has done harm to both societies. On the one hand, the act of buying drugs itself means that drugs may be sold; On the other hand, buying drugs in large quantities is often the starting point or necessary prerequisite for the implementation of new trafficking behaviors, so buying drugs also contains real dangers that further endanger society; And selling drugs is to turn the social harm caused by buying drugs into reality. It can be seen that these two related behaviors in the process of drug trafficking do not lack independence and serious social harm. As long as one of them is implemented, the following crimes must be completed. Therefore, the accomplishment of drug trafficking is not determined by the realization of the criminal purpose of the perpetrator, nor is it necessary to complete all the behaviors in the process of drug trafficking.
2. In the process of drug trafficking, a large number of arrested drug criminals no longer buy drugs.
Where drugs are not sold or traded, people get all the stolen goods. Drugs are really transferred from the seller to the buyer, and only a few cases are caught after the drug transaction is completed. In practice, in some drug trading sites, both parties are further bargaining, or counting money, or identifying the quality of drugs, so it is difficult to define whether the drugs have really been transferred to the buyer. If we use the viewpoint of "drug transfer theory" to judge whether the crime of drug trafficking has been completed, a large number of drug trafficking cases will inevitably be tried, which is obviously too strict.
3. In drug trafficking, the quantity of drugs affects the severity of sentencing. If it is actually transferred to the buyer
The quantity of drugs has reached the standard quantity, so drugs found from drug offenders' homes that have not been sold and transferred to buyers can only be regarded as attempted. As a result, the judicial problem of whether the number of drug accomplished and attempted can be calculated together arises. For example, A was caught red-handed by public security personnel while selling heroin, and seized heroin 15g, and then seized 235g heroin from the rental house where he lived. According to the spirit of the crime of drug trafficking stipulated in Article 347 of the Criminal Law, combined with the analysis of the principle of crime constitution and sentencing relationship, it is accurate to define the crime of drug trafficking as a behavioral crime, and the drugs seized in the drug traffickers' residence should be counted as the number of drugs sold.
4. Taking drugs as the actual link in the transaction to judge whether the crime of drug trafficking is accomplished or attempted is because the central link in drug trafficking is the transaction. If only the buyer and the seller are discussing the price or other issues, but the medicine is not brought to the transaction site, this is just the beginning of sales, or talking about trading. Scholars who hold the first and third views believe that this crime of drug trafficking is accomplished; However, if drugs are not seized from both sides of the negotiation or the scene, it is difficult to identify the crime of drug trafficking, because the indispensable object of drug trading lacks evidence. Only when people are found to be carrying stolen goods during the transaction, regardless of whether the transaction is completed or not, it will be regarded as completed. This not only conforms to the constitutive characteristics of behavioral crime, but also reflects the particularity of drug trade. Due to the complexity and diversity of drug trafficking crimes, the criteria for determining the accomplished and attempted drug trafficking crimes are as follows: first, if a drug dealer obtains or has purchased drugs for the purpose of drug trafficking, it should be regarded as the accomplished drug trafficking crime. Second, for drugs that are not acquired through purchase, such as drugs handed down from ancestors or donated by others, as long as the drugs are brought to the place agreed by the buyer to start trading, they should be punished as drug trafficking. Third, the drugs seized in his residence after being arrested for drug trafficking should be considered as drug trafficking crimes. If the drugs seized are not sold, they should not be treated as crimes of attempted crime or illegal possession of drugs. Fourth, those who mistake fake drugs for real drugs and are caught in the drug trade or have been caught after the completion of the fake drug trade should be regarded as attempted drug trafficking; Drug trafficking after adulteration should be treated as drug trafficking as long as it does not lose its addictive toxicity; Whoever knowingly sells fake drugs as genuine drugs shall be punished as fraud.