If it is only in possession and there are no other circumstances, it shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance.
Illegal possession of a simulation gun
Objective elements of the crime of illegal possession of firearms and ammunition
Objectively, this crime is manifested as the behavior of illegal possession and possession of guns by the perpetrator in violation of the regulations on gun control. The so-called possession refers to the illegal act of holding or hiding guns and ammunition. That is, in violation of the regulations on gun control, holding and carrying guns and ammunition without obtaining a gun certificate according to law, or carrying guns and ammunition out of the legal place despite having a certificate, or carrying guns in areas and places where guns and ammunition are prohibited. Guns and ammunition, whether donated by others or picked up, or legally carried by oneself and not handed in later, are all illegal possession and hiding without legal approval. However, if the illegally held or hidden guns and ammunition are illegally manufactured, sold or stolen or robbed by themselves, they should be punished for the crime of illegally manufacturing or selling guns and ammunition or stealing or robbing guns and ammunition, and there is no other crime of holding guns and ammunition. The so-called refusal to hand over includes those who have been found to have guns and ammunition and still refuse to hand them over after being ordered to do so; It also includes that although the holder has not been discovered, he knows that he should surrender, but still conceals it and refuses to surrender. This crime is a selective crime, that is, having one of the acts of possession and possession constitutes a crime.
Determination and punishment of the crime of illegal possession and possession of guns and ammunition
think
(A) the difference between crime and non-crime
The crime of illegal possession and possession of guns and ammunition is a crime endangering public security, and there is no limit on the amount and circumstances in legislation. However, according to the proviso of Article 13 of this Law, if the circumstances are obviously minor and the harm is not great, it shall not be deemed as a crime and may be handled in accordance with other relevant regulations. At the same time, when distinguishing between crime and non-crime, we should pay attention to the following two situations:
(1) The crime of illegal possession of firearms and ammunition should be distinguished from the act of carrying firearms and ammunition equipped and configured according to law without carrying a gun certificate. The latter is a clear violation of gun control regulations. According to Article 25 of the Law of People's Republic of China (PRC) on the Control of Firearms, the public security organ shall detain firearms and ammunition for the act of not carrying a gun certificate, but it cannot be considered as this crime.
(2) This crime should be distinguished from the act of carrying guns and ammunition in areas and places where guns and ammunition are prohibited. For the latter, according to Article 44 of the Gun Control Law of People's Republic of China (PRC), the public security organ shall give a warning or detention to the person in charge or other responsible personnel who are directly responsible for the individual or unit 15, confiscate their guns and ammunition, and may impose a fine of less than 5,000 yuan; But it does not constitute a crime.
(two) the boundary between this crime and the crime of stealing or robbing guns, ammunition and explosives.
The main difference between the two is that (1) the criminal objects are different. The object of this crime is guns and ammunition, not including explosives; The objects of the crime of stealing or robbing guns, ammunition and explosives include guns, ammunition and explosives. (2) Different objective behaviors. This crime is manifested as the crime of illegal possession and possession of guns and ammunition; The crime of stealing and robbing guns, ammunition and explosives is manifested as the act of stealing and robbing guns, ammunition and explosives.
(three) the boundaries between the crime of illegal possession of guns and ammunition and the crime of possession of guns and ammunition.
The main difference lies in the difference of objective performance. The former is the act of owning, carrying, wearing or otherwise publicly owning and holding guns and ammunition; The latter is manifested in the act of hiding guns and ammunition privately. The former behavior is an open way, and the latter behavior is a secret way.
Penalty punishment
According to Article 128 of the Criminal Law of People's Republic of China (PRC), whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
The serious circumstances here mainly refer to: illegal possession and possession of a large number of civilian guns and ammunition; Illegal possession and possession of firearms and ammunition for criminal purposes, illegal possession and possession of firearms and ammunition for military or non-military system official duties; Resist the collection of illegally held or privately hidden guns and ammunition by violence or threats.
Legal and judicial interpretation
[Criminal Law Provisions]
Article 128, paragraph 1, whoever, in violation of the regulations on the control of guns, illegally holds or hides guns and ammunition shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
[Related Laws]:
Law on the Control of Guns Article 3 The State strictly controls guns. It is forbidden for any unit or individual to hold, manufacture (including modification and assembly), trade, transport, lease or lend guns in violation of the law.
The state severely punishes illegal and criminal acts that violate gun control. All units and individuals have the obligation to report violations of gun control. The state protects prosecutors and rewards those who have made meritorious service in reporting crimes against gun control.
Article 44 Anyone who violates the provisions of this Law and commits any of the following acts shall be given a warning or detained for less than 15 days by the public security organ. If the case constitutes a crime, criminal responsibility shall be investigated according to law:
(1) Failing to manufacture guns for civilian use in accordance with the prescribed technical standards;
(2) Carrying guns in areas and places where guns are prohibited;
(3) Failing to turn in scrapped guns;
(4) Failing to report guns stolen, robbed or lost in time;
(5) manufacturing and selling simulation guns.
Whoever commits one of the acts listed in Items (1) to (3) of the preceding paragraph shall have his guns confiscated and may be fined not more than 5,000 yuan; One of the acts listed in item (5) of the preceding paragraph shall be confiscated by the public security organ and the administrative department for industry and commerce in accordance with the division of responsibilities, and may be fined not more than five times the amount of manufacturing and sales. If the circumstances are serious, the administrative department for industry and commerce shall revoke its business license.
Article 46 The term "guns" as mentioned in this Law refers to all kinds of guns that are powered by gunpowder or compressed gas and use tubular instruments to fire metal pellets or other substances, which are enough to cause casualties or coma.