The purpose and task of criminal law is to protect legal interests, and crimes should be limited to acts that harm legal interests (acts that infringe legal interests or have the danger of infringing legal interests) [1]. The determination of legal interests is of great significance, and Professor Zhang Mingkai elaborated on the functions of legal interests in his On Legal Interests [2].
In his works, Professor Zhang focuses on four functions of legal interest, including criminal policy function, illegality evaluation function, interpretation function and classification function of legal interest. Specifically, the criminal policy function of legal interest is as follows: the function of making criminal legislation have a reasonable purpose; The function of rationalizing the punishment scope of criminal law; The function of clarifying the punishment boundary of criminal law. The function of illegality evaluation is to evaluate whether an act is illegal according to whether the legal interests are infringed or threatened; The concept of legal interest also reveals the essence of illegal reasons; The concept of legal interest also explains the reasons for violating laws and regulations. The explanatory function of legal interest means that legal interest has the function of explaining the constitutive elements of crime. Different interpretations of the legal interests protected by a criminal law norm will inevitably lead to different understandings of the constitutive elements of a crime, which in turn will lead to different punishment ranges. The classification skills of legal interests are as follows: We can classify crimes according to the content of legal interests, the subject of legal interests, and the forms of infringement of legal interests.
According to the basic principle of formal logic, the legal interests mentioned above belong to the major premise, and the legal interests of drug crimes to be discussed in this paper belong to the minor premise, and the functions of legal interests mentioned above also apply to the legal interests of drug crimes [3]. The study of the legal interests of drug crimes also has the function of criminal policy of drug crimes, specifically, to make the criminal legislation of drug crimes have a reasonable purpose; The function of rationalizing the penalty range of drug crimes; The role of defining the boundaries of criminal punishment for drug crimes. The research on the legal interests of drug crimes also has the function of explaining the illegality of drug crimes, specifically, to evaluate whether an act constitutes the illegality of drug crimes by whether the legal interests of drug crimes are infringed or threatened; The concept of legal interest in drug crimes also reveals the essence of the causes of drug crimes; The concept of legal interest in drug crimes also explains the reasons for violating laws and regulations in drug crimes. By analogy, the explanatory function and classification function of the legal interests of drug crimes are also clear at a glance, so the significance of studying the legal interests of drug crimes is very clear and clear.
Then, we also need to discuss the research status of legal interests of drug crimes. It can be said that the existing research on the legal interests of drug crimes has the following defects. First of all, the number of existing documents discussing the legal benefits of drug crimes is very small. Many documents only discuss the object of drug crime when discussing related issues [4]. It can be said that many people have not realized the significance of studying the legal interests of drug crimes. Many people need to be exposed to the research materials of drug crimes every day, and many criminal judges are trying drug crimes every day, but they do not pay due attention to the legal benefits of drug crimes, let alone form a research discourse. Second, there is no unified understanding of the basic concept of legal interests of drug crimes. As we said in another article, no matter legal experts, general legal researchers or ordinary practitioners, there is no unified understanding and view on the basic problems of drug crimes. Academic complexity and theoretical controversy are particularly prominent and obvious here. Almost everyone has their own opinions (we can see how many differences and differences there are in the specific discussion below), and many people who don't have their own opinions just follow others' opinions and become their own words. It can be said that if there are too many different views on the same issue, it is certain that the research on this issue needs to be deeper and more detailed. The problem that has not been solved is the real problem. Third, there is basically no conscious research on the legal benefits of drug crimes. In many cases, it is only an incidental explanation of the legal interests or objects of drug crimes, and more often it is a passing, that is, Mr. Gao Wei, who has made a detailed study of drug crimes, has not formed a complete consciousness in the article "Research on Drug Trafficking Crimes". Although the author has combed the essence of drug trafficking crime in detail, I think the author's research is only incidental from the perspective of the study of legal interests of drug crimes. From his viewpoint and concept of use, we can see that he is more interested in exploring the deep nature of drug trafficking crimes for other viewpoints [5]. What needs to be explained is that the above three phenomena are closely related, so it is difficult to understand the problem clearly without research materials, and it is difficult to form a unified view without understanding the problem clearly, which will also affect the formation of consciousness. On the other hand, if there is insufficient consciousness, there will not be many people studying it, and it will be difficult to form a large number of documents, and it will be difficult to form a unified understanding and viewpoint. Generally speaking, the research on the legal interests of drug crimes in China is still in a very primary and superficial stage, so it is necessary and possible to deepen the research.
In addition, we have also discussed at ordinary times that in our years of trial practice, the crimes of intentional homicide, intentional injury, theft and drug trafficking are the most common, and among these crimes, drug crime is the most complicated, because other crimes are natural crimes and traditional crimes, and people have already had a basic understanding of it. Even a child knows the harm of intentional homicide, and there is basically no debate about the legal benefits of intentional homicide. It can be said that people's understanding of many basic problems of traditional crimes such as intentional homicide and intentional injury is mature and unified. However, drug crimes are different. It belongs to a modern crime, to a large extent, a statutory crime, which is invented by society and the state according to the needs of the current society. Therefore, people's understanding of drug crimes is not uniform, and each has its own views and opinions. People have not yet formed a unified understanding of the legal interests, the composition, the stop form, the perpetrators and accomplices of drug crimes. People still don't have consistent answers to common sense questions such as what is drug crime, what harm it has and why it should be punished. Because of this, it is more necessary for us to deepen the research and discussion on drug crimes, and the research on the legal interests of drug crimes is the core of such a research field. Therefore, the importance of studying the legal interests of drug crimes is highlighted.
Based on the great significance of the above-mentioned research on the legal interests of drug crimes and the present situation of the research on the legal interests of drug crimes in China, we believe that this paper has found the practical and academic significance of the research on the legal interests of drug crimes.
In the following, we first analyze and criticize the existing wrong views, mainly the "human health theory" and "drug control order theory" [6], and then analyze the correct view that the legal interests of drug crimes are the public health of social organisms, and explain the concept of public health to clarify the reasons for this formulation.
Second, drug crimes harm people's health?
When talking about this point of view, let's first look at describing the harm of drugs to people's health in ordinary words. "Drug abuse seriously harms people's physical and mental health. It will cause serious damage to the nervous system, endocrine system, immune system, functional metabolism and structure of various tissues and organs. Drug abuse will inhibit the central nervous system, slow down the respiratory rate, reduce lung function, lead to hypoxia, produce pulmonary edema, and eventually die of respiratory failure; Drug abuse will affect autonomic nerve function, causing brain chemical changes, neurological disorders, mental retardation, blood circulation disorders, gastrointestinal dysfunction and so on. , leading to headaches, convulsions, gastrointestinal cramps and other toxic side effects; Drug abuse will directly damage human immune function and make people susceptible to diseases; Female drug addicts have amenorrhea, dysmenorrhea and ovulation arrest. Pregnant women may lead to premature delivery, teratoma or fetal death. If the fetus survives, it becomes an indirect drug addict. At the same time, because some drug users use intravenous injection and use unsterilized syringes and needles, it has become the main way of AIDS transmission. "
Examples that endanger people's health abound in real life. Here are some living examples.
"Drug addiction accelerates death: drug addicts are likely to die of respiratory center failure due to excessive intake (injection) of drugs to meet the onset of drug addiction, or anaphylactic shock and various complex complications caused by drugs mixed with toxic and harmful substances, which can lead to death in severe cases. Zhu Jie, a film actor who graduated from the Central Academy of Drama, died of drug overdose in 1997 at the age of 28. Liang Yuli, 2 1 year-old, from Guizhou, is a smart and beautiful girl. After she was addicted to drugs, she relied on prostitution to maintain drug abuse and died on the streets of Nanning because of drug overdose. " "Drug abuse is harmful to future generations. Either mother-to-child vertical transmission becomes the victim of AIDS, or she is born with drug addiction and becomes a little "addict", and some of them become the vent object of drug-addicted parents. A woman in Nanning took drugs during pregnancy, and her fetus suffered greatly in her mother. She was suffocated and convulsed at birth. Since then, the mother must take medicine before breastfeeding, and the baby will eat, otherwise it will cry and cry, which will seriously endanger life. [7] "
The above description is a case of drug abuse affecting people's health, and it is precisely in this way that people will have various views on drug crimes against people's health. There are various views on drug crimes against people's health, some think that they are against a single person's health, some generally think that they are against people's health, some think that they are against other legal interests and health, and some clearly think that they are against the health of an unspecified majority. There are also various concepts, such as "people's health", "the health of the unspecified majority", "people's health" and "public health". However, the similarity of these viewpoints is that the object or interest of drug crime is human health.
For example, Mr. Gao Wei, who specializes in drug crimes, thinks that the essence of drug crimes lies in the harm to people's health, and has made a detailed discussion on this [8]. I will criticize the author's argument later. )
Mr. Zhang Mingkai holds a similar view that "drugs endanger public health, and the legal benefit of the crime of manufacturing drugs is public health. [9] "Then, Professor Zhang insisted on the same point of view in the specific part of the book, and quoted the views of Japanese criminal law scholars [10].
The point to be mentioned below is that drug crimes infringe on various legal interests, people's health and national drug control. One expression is: "The object of this crime is many management systems dealing in narcotic drugs and psychotropic drugs and human health."
One expression is: [1 1] "The object of drug trafficking crime is the national drug control and people's physical and mental health." [ 12]
Another expression is: "The direct object of this crime is a compound object, and the criminal objects of the crime of smuggling, selling, transporting and manufacturing drugs include the national drug control and management system, and also infringe on the physical and mental health of citizens."
[13] Another expression is: "The object of this crime is the national drug management system and people's life and health. [ 14]"
Then you can also list the foreign statements about people's health. For example, Japanese criminal law adopts the dichotomy of legal interests, which divides legal interests into individual legal interests, social legal interests and national legal interests. Generally speaking, the infringement of drug trafficking on legal interests is defined as legal interests that are not specific to the health of most people. [15] Germany also believes that drug abuse is a kind of self-injury behavior in criminal law evaluation, and the act of providing drugs, such as selling, transporting, manufacturing, delivering or transferring drugs to others, should be evaluated as helping others to take drugs in essence. From the perspective of criminal law hermeneutics, it should belong to self-injury treatment [16]. In addition, foreign scholars have many other views. But I won't list them, because I think that discussing the legal interests of a country's crime can't be discussed without the context of this country. Every country has different social understanding and special situation of the country, and the general understanding of people in every country is also different, so every country has different understanding of crime. In this way, different countries have different definitions of legal interests [17], and the same is true for drug crimes. Different countries. Therefore, foreign statements can only be used as a reference.
At first glance, it seems that we can think that the above description is consistent with the arguments of many scholars above, describing the vivid phenomenon that drug abuse harms people's health. Scholars argue that the object or legal interest of drug crime is human health. However, after in-depth analysis, it can be found that there are great problems in the above scholars' statements.
First, from the above text, we can see that the harm to people's health is not caused by drug crimes, but by drug abuse. "Drug abuse seriously harms people's physical and mental health. It will cause serious damage to the nervous system, endocrine system, immune system, functional metabolism and structure of various tissues and organs. Drug abuse will inhibit the central nervous system, slow down the respiratory rate, reduce lung function, lead to hypoxia and pulmonary edema. Drugs will cause serious damage to the nervous system, endocrine system and immune system of human body, as well as the functional metabolism and structure of various tissues and organs ... ",where I added a bullet, it needs to attract readers' attention, that is, the main body of these harmful behaviors is" drug abuse ". Second, it is not a drug crime, but a drug abuse on people's nerves, endocrine and immunity, rather than drug trafficking and transporting drugs. It is drug abuse that accelerates people's death, not drug crimes that accelerate people's death, but drug abuse causes physical harm to people's descendants, not drug crimes that cause physical harm to people's descendants. It is the drug addicts themselves who do harm to their health, but this kind of drug abuse is not a punishable act. It is hard to think that people are healthy. From the perspective of legal feeling, it is hard to say that drug trafficking has caused harm to people's health, and it is hard to say that drug trafficking has caused harm to people's health. Of course, some scholars have explained it with the help of the concept of abstract dangerous crime, but we think that the formulation of abstract dangerous crime itself is problematic, and it is even more problematic to prove the topic here with the concept of abstract dangerous crime. Below we will also criticize the theoretical basis of abstract dangerous crime.
Second, people's health cannot completely cover all the legal interests of drug crimes. To take a step back, even if people's health can be counted as the legal interests of drug crimes, there are many hazards of drug crimes, including not only people's health, but also many other hazards. At least include the following hazards: (1) Harm to the family. Once there are drug addicts in the family, the family is not home. When drug addicts destroy themselves, they also destroy their families, leaving them in the predicament of economic bankruptcy, separation of relatives and even family destruction. (2) Great damage to social productive forces. Drug abuse first leads to illness and affects production. Secondly, it causes great loss and waste of social wealth. At the same time, drug activities have also worsened the environment and narrowed the living space of human beings. (3) Drug crimes disturb social order [18]. The intensification of drug activities induces all kinds of illegal and criminal activities, disturbs social order and poses a great threat to social stability. (4) corrupt the social atmosphere, and so on. Some scholars have pointed out that "drug crime is one of the' malignant tumors' parasitic in modern society, which not only directly damages the physical and mental health and life of users, but also makes drug addicts psychologically dependent on drugs, leaving family, career, morality and responsibility behind, and taking obtaining drugs and enjoying them as their only goals for survival and life. More seriously, drug crime is an important factor to induce other crimes. In order to obtain drug money, drug addicts do not hesitate to engage in criminal activities such as theft, robbery and fraud. Drug criminals often drag some national staff, especially judicial staff, into the water, which seriously undermines the state management order and social stability. [19] "On the relationship between drugs and crime, some scholars pointed out:" Drugs and crime are twin brothers, and social crimes caused by drugs are increasing day by day. [20] "Some scholars have described the ways and means of inducing crime:" First, inducing drug addicts to commit crimes in order to obtain drug money. Second, strengthen the criminal tendency. Third, the huge profits of crime stimulate more people to commit crimes. Finally, some state employees are often drawn together to commit crimes. [2 1] "From a certain point of view, other hazards besides human health are what we pay more attention to and feel more personally.
Through the above simple analysis, we can basically draw a conclusion that defining the legal interests of drug crimes as human health problems and theoretical obstacles has no support in practice.