The crimes stipulated in the current criminal law of our country are all based on the constitution of the crime. The so-called constitution of a crime is the sum of subjective and objective elements required by law to explain the social harm and degree of an act. Every crime stipulated in the criminal law has its own special provisions on the constitution of the crime, and the crime of drug trafficking is no exception. Article 347 of China's Criminal Law (1) stipulates that smuggling, selling, transporting and manufacturing drugs, regardless of the quantity, should be investigated for criminal responsibility and punished. The Supreme People's Court clearly defines "drug trafficking" as "the act of illegally selling or illegally buying drugs with the purpose of trafficking and knowing that they are drugs". Judicial interpretations, such as the Minutes of the Symposium on the Trial of Drug Crimes by National Courts and the Interpretation of Issues Related to the Criteria of Conviction and Sentencing in Drug Cases, have made more clear and specific provisions on how to accurately understand and grasp the criteria of the crime of drug trafficking and how to accurately convict and sentence in judicial practice. Nevertheless, there are still different understandings and understandings of the specific connotation of the constitutive elements of this crime in the current criminal law theory circle, and the operation in judicial practice is not consistent. In this regard, this paper intends to analyze the subjective and objective elements of the crime of drug trafficking, and put forward my humble opinion on how to understand and grasp the composition of the crime.
1, the target of drug trafficking crime
At present, Chinese criminal law scholars mainly hold two different views on the object of drug trafficking crime. One view is that the object of drug trafficking crime is complex, that is, the national drug management system and people's health rights [1]. Another view is that the object of drug trafficking crime is the control of drug purchase and sale activities in China [2].
To correctly understand the object of the crime of drug trafficking, the author thinks that we should make a comprehensive analysis and judgment from the social harm essence of the crime, the value orientation of relevant criminal legislation and other elements. First, the essential feature of the crime of drug trafficking, that is, the most essential social harm, is that the perpetrator violates the laws and regulations on the management of drug purchase and sale and conducts evil transactions such as "exchanging drugs for money" and "exchanging drugs for drugs", which leads to the illegal circulation and spread of drugs and causes various social problems. Second, the crime of drug trafficking is established in China's criminal law to punish acts that violate the management system of drug purchase and sale according to law, which corresponds to the harmfulness of the crime of drug trafficking. Third, the subjective element of this crime is that "knowingly selling drugs" is a direct intention, not endangering the health of others. Therefore, the object of this crime should be the single object of the state's management system of drug purchase and sale. As far as the specific legal system is concerned, it includes "Measures for the Administration of Narcotic Drugs in People's Republic of China (PRC)", "Measures for the Administration of Psychotropic Drugs in People's Republic of China (PRC)" and other laws and regulations, as well as relevant anti-drug conventions to which our government is a party.
In contrast, if this crime is based on the complex object theory of "state control of drugs" and "citizens' right to health", it not only does not conform to the essential characteristics of drug trafficking crime, but also runs counter to the value orientation of criminal law, resulting in ineffective crackdown on drug trafficking in practice. First, although drug dealers know that a large number of drugs will bring harm to human health, their drug trafficking purpose is not to harm the physical and mental health of others. Second, China's criminal law regards "illegal drug trafficking or illegal drug purchase for the purpose of drug trafficking" as the scope of punishment for drug trafficking, which shows that there is no criminal law requirement for the real use of drugs and whether it harms the physical and mental health of others. Therefore, it is undoubtedly against the original intention of legislation to regard drug trafficking as a real criminal whose result is harmed by his behavior with the theory of complex object. Third, from the natural properties of drugs, although there is some toxicity, it is undeniable that drugs themselves have certain medicinal value. If used reasonably in a certain range and degree, it belongs to normal drugs and has the function of relieving pain. Only after long-term dependence and large consumption will it cause harmful consequences of chronic poisoning and even death. Therefore, if "citizens' right to health" is regarded as one of the objects of the crime, some sporadic drug trafficking and illegal drug trafficking for medical treatment or other non-toxic smoking can not be convicted and punished for drug trafficking because they can not harm their health. This obviously artificially narrows the scope of the crime of drug trafficking, which is not conducive to effectively curbing the illegal circulation of drugs, and it is completely inconsistent with the provisions of China's criminal law that "no matter how many drugs are sold, criminal responsibility should be investigated"
The object of the crime of drug trafficking is drugs. From the historical development, the extension of drugs has a process from narrow to wide. Article 357 of China's Criminal Law clearly stipulates: "Drugs mentioned in this Law refer to opium, heroin, methamphetamine (ice), morphine, marijuana, cocaine and other narcotic drugs and psychotropic drugs that can make people addicted." It is generally believed that drugs refer to narcotic drugs and psychotropic drugs that can make people addicted and may affect human health. Drugs have the following three characteristics: (1) dependence or addiction. (2) toxic. (3) illegality. [3] Being able to make people addicted is the fundamental feature of drugs, and the boundary between drugs and drugs is whether it is beyond the scope of state administrative control.
At present, with the improvement of chemical industry, more and more drugs are produced by chemical synthesis, so it is particularly necessary to define some new drugs from the perspective of standardization. For example, some new drug cases, such as ecstasy and ketamine, once allowed some drug dealers to get away with it because of "no law to follow". It was not until 2000, when the Supreme People's Court made some judicial interpretations, such as "Interpretation on Issues Related to Conviction and Sentencing Standards for Drug Cases", that the judicial dispute over whether to deal with the case by conviction was resolved. However, under the temptation of huge profits, not only some criminals with professional knowledge use the structure-activity principle to transform the chemical structure of some known drugs in underground laboratories or factories, but also constantly develop new drugs with more dependence, and some state-controlled psychotropic drugs that are not listed in the legal drug list are also circulating through illegal channels. For example, Wang bought the second kind of psychotropic drug diazepam injection controlled by the state from a pharmaceutical factory at a low price, and then illegally sold it to individual clinics and drug dealers at a high price. Another example: Yang used the altered business license and drug business license of Chinese and Western Medicine Department of Zhengzhou Company, a China medicinal material, to defraud the trust of Qinghai Pharmaceutical Factory in Xining City, Qinghai Province, and obtained the general agent qualification for the factory to sell buprenorphine sublingual tablets in Zhengzhou, Henan Province. After purchasing 7300 buprenorphine sublingual tablets (73000 tablets) from this factory at the price of 10 tablets and the weight of 1 g, 7250 tablets (72500 tablets) were sold to others for profit at prices ranging from 29 yuan to 30 yuan. Obviously, diazepam injection and buprenorphine belong to the second category of psychotropic drugs controlled by the state. In 2002, the Supreme People's Procuratorate further clarified that diazepam injection belongs to the addictive psychotropic drugs stipulated in Article 355 1 of the Criminal Law, but whether it belongs to the drugs referred to in Article 357 of the Criminal Law is not clearly stipulated by law. So there is no clear legal provision. It can be seen that due to the limitation of the legal drug list and the uncertainty of new drugs, defining the nature of new drugs has become an important prerequisite and key to accurate conviction.
In my opinion, it is impossible to solve this problem fundamentally only by legislation or judicial organs to guide judicial practice through supplementary provisions and judicial interpretation, or we should accurately identify it on the basis of strictly following the value orientation of criminal legislation related to punishing drug trafficking crimes, combined with the analysis of the legal interests infringed by drug trafficking crimes and the specific connotation of drugs in the sense of criminal law. According to the provisions of Article 357 of China's Criminal Law and the general understanding of the concept of drugs in the theoretical circle, the definition of drugs in the sense of criminal law can be analyzed from the following two aspects: First, whether it belongs to psychotropic drugs and narcotic drugs controlled by the state. The second is whether it belongs to psychotropic drugs and narcotic drugs that can make people addicted. The former can be determined by searching the list of narcotic drugs and psychotropic drugs published by the Ministry of Health. The latter can be based on the clinical response provided by the relevant health care department. For narcotic drugs and psychotropic drugs not listed in China's laws and regulations, we can refer to internationally controlled narcotic drugs and psychotropic drugs.
2. The objective aspect of the crime of drug trafficking.
The objective aspect of the crime of drug trafficking is to violate the anti-drug laws and regulations, sell opium, heroin, methamphetamine, morphine, marijuana or other drugs, and undermine the national drug control. (4) China's criminal law does not clearly define the meaning and scope of "drug trafficking", which leads to different understandings in theoretical circles and judicial practice. One view is that "trafficking" includes illegal reselling of self-made drugs, while "reselling" means that the actor buys drugs from other drug dealers at a lower price and then sells them to others at a higher price. [5] One view is that the so-called trafficking refers to illegal paid transfer, including buying and selling, exchange, wholesale and retail. [6] One view is that trafficking refers to the act of transferring drugs with compensation or illegally buying drugs for the purpose of trafficking. Paid transfer means that the perpetrator delivers drugs to the other party and obtains material benefits from the other party. ⑦ Judicial practice is based on the definition of "trafficking" in the Supreme People's Court's judicial interpretation: "The act of illegally selling drugs or illegally buying drugs for the purpose of trafficking." The author believes that the above viewpoint not only limits "trafficking" to remuneration and material benefits, but also is a restrictive interpretation of criminal law. Moreover, as far as the punishment of criminal law for undermining the national drug purchase and sale management system is concerned, at present, all kinds of illegal drug transactions are rampant, and only "trafficking" is criminalized, which also lacks the seriousness of the law.
According to the legislative intent of China's criminal law to punish acts violating the national drug purchase and sale control system, the contents of illegal drug purchase and sale should include: first, the actor has the purpose of circulating drugs; Second, the actor actually has the right to control and dispose of drugs, and can dispose of drugs according to his own will; Third, there are objectively drug control behaviors or out-of-control behaviors. Therefore, the so-called "trafficking" is not enough to cover all illegal drug circulation. No matter whether the source of drugs is obtained by illegal means such as low-price purchase, self-control, ancestral, theft, fraud, etc., whether it is to obtain benefits through illegal circulation or to seek material benefits, as long as the perpetrator commits the illegal circulation of drugs, that is, it violates the relevant provisions of the state on drug control, and should be investigated for criminal responsibility. Therefore, the author believes that all illegal drug circulation should be criminalized and severely punished in China's criminal law, and whether or not to sell for profit should be considered as a sentencing circumstance.
In recent judicial practice, some drug transactions with no economic interests as the main purpose, such as illegal sex transactions, transporting drugs to people with certain powers, and illegally taking drugs for the purpose of escaping punishment or promotion, transfer or promotion, cannot be convicted according to the current laws, but from the perspective of the social harm of this behavior, it is no less than drug trafficking and can also be regarded as disguised trafficking. If all drugs in criminal law can be illegally traded, of course, simply define "trafficking" as a category that includes all transactions, exchanges and other acts by judicial interpretation. Regardless of profit or not, without taking economic interests as the premise, it may not only lead to the expansion of criminal law interpretation, but also lose the thoroughness and seriousness of legal norms. Therefore, the author suggests that the crime of drug trafficking should be changed into the crime of illegal drug circulation or illegal drug trading to make up for the legislative defects.
3. Subject of drug trafficking crime
The subject of the crime of drug trafficking can be a unit or a natural person with criminal responsibility over 14 years old. According to the second paragraph of article 17 of the revised criminal law of our country, minors who have reached the age of 14 but have not reached the age of 16 should bear the criminal responsibility for drug trafficking, thus denying the provisions of the original judicial interpretation [8] and excluding the smuggling, manufacturing and transporting of drugs with the death penalty from the crime that minors should bear the criminal responsibility for drug crimes. Although the new criminal law has made clear and specific provisions on this issue, which has solved the dispute about the criminal responsibility of minors under the age of 14 but under the age of 16, the author thinks that the rationality of this provision still has some doubts. First, in the case of the same statutory punishment in the same article, the same kind of subjects only bear criminal responsibility for one kind of behavior, but not for the other kind of behavior, which is unscientific and imprecise in legislation. According to the provisions of the second and third paragraphs of Article 347 of the new Criminal Law, the maximum penalty for the crime of smuggling, transporting, manufacturing and selling drugs with serious circumstances is death, and the minimum penalty is seven years' imprisonment, which not only shows that the social harmfulness of these four criminal acts is equivalent to the crime of intentional homicide and robbery, but also should be considered as acts that seriously endanger social order. Therefore, minors who have reached the age of 14 but under the age of 16 commit the above four criminal acts, and the law only stipulates that criminal responsibility shall be investigated for drug trafficking, which is obviously unfair in legislation. Second, regardless of the circumstances of the crime, all drug trafficking behaviors of minors who have reached the age of 14 but have not reached the age of 16 are convicted and punished, which also violates the principle of balancing crime and punishment in the criminal law and the spirit of the current criminal policy of combining leniency with severity for minors. If minors who have reached the age of 14 but have not reached the age of 16 participate in drug trafficking for the first time and occasionally, if they also bear criminal responsibility without exception, the purpose of combining punishment with education will not be achieved, and the legal and social effects of law enforcement will not be reflected. Therefore, the criminal responsibility for drug crimes committed against minors aged 14 and under 16 should not be limited to the criminal responsibility for drug trafficking, but should be included in the "drug crimes with serious circumstances, which may be sentenced to more than seven years (or fifteen years) in prison, life imprisonment or death penalty" through legislation or judicial interpretation, so as to show the fairness of the law.
4. Subjective aspects of the crime of drug trafficking.
The subjective aspect of the crime of drug trafficking is that the perpetrator knows that drug trafficking will lead to the illegal circulation and spread of drugs in society, and hopes or allows this to happen. Drug trafficking is usually a high-profit criminal activity, and most drug traffickers have the purpose of pursuing huge profits. However, the criminal law does not clearly stipulate that the crime of drug trafficking must have a profit-making purpose. Therefore, whether "for profit" is a constitutive requirement of this crime is still controversial in theoretical circles. One view is that the crime of drug trafficking is not only the direct intention of selling drugs knowing that they are drugs, but also the purpose of making profits, that is, drug traffickers hope to make huge profits through illegal drug trafficking; It does not have a profit-making purpose and does not constitute a crime of drug trafficking. Another view is that although "human trafficking is usually for profit, it is not always the case." For example, A bought a lot of drugs to smoke, then gave up drugs for various reasons, and sold the remaining drugs at a low price after detoxification. Obviously, it is difficult to determine that A has a profit-making purpose, but its behavior still constitutes the crime of drug trafficking "[9].
The author agrees with the latter. First of all, from the standard of distinguishing crime from non-crime, whether for profit or not, as long as drug trafficking directly undermines the strict control of drug purchase and sale activities in China, causes the illegal circulation and spread of drugs, stimulates the vicious expansion of the whole drug crime, and has serious social harmful consequences, it constitutes the crime of drug trafficking. As for whether to pursue profiteering or not, the amount of illegal gains is only a manifestation and reflection of the subjective viciousness of drug trafficking, which can only be regarded as sentencing circumstances. Secondly, the profit here is only a manifestation of behavioral motivation, and it is not the consistent result pursued by all drug dealers. The above-mentioned behavior of selling surplus drugs at low prices. Thirdly, judging from the distinction between this crime and this crime, the essential feature of the crime of drug trafficking is that the perpetrator causes the illegal circulation and diffusion of drugs by means of transfer, which harms society. This shows that the difference between the crime of drug trafficking and other crimes lies mainly in the behavior and harmful characteristics, not in whether it is for profit subjectively. Fourthly, artificially increasing the content of constitutive requirements not only narrows the scope of attack, but also is not conducive to judicial determination.
Judicial practice does not rule out this situation. After a new drug was developed, it was tasted free of charge by drug dealers among special people because of its unfamiliar effect, in order to open the sales market of the new drug and be arrested immediately after it was distributed free of charge. Can this behavior be convicted? In a sense, the social harm of this kind of behavior is more serious than selling the same amount of traditional drugs, because it makes the country face a new crime crisis. Therefore, some scholars believe that according to the current law, this kind of drug donation can also be convicted and punished for drug trafficking. One of the reasons: in order to effectively control drugs and prevent legislative loopholes, criminal law should be used to crack down. The second reason: the diversity of human trafficking makes it unnecessary to make a profit. The third reason: there is a clear legislative spirit in international conventions and national legislation to make drug "supply" a crime. 1988 Article 3 "Crimes and sanctions" of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1 stipulates: "1 Each State Party shall take necessary measures to establish the following intentional acts as criminal offences in its domestic law: (a) (1) Violation of196/kloc-0. Producing, manufacturing, refining, preparing, supplying, peddling, distributing and selling ... any narcotic drugs or psychotropic substances conform to the provisions of the amended Convention 196 1. " Among them, the act of "offering to give" is an act that the Convention requires to be convicted. The criminal legislation of each State party should also reflect this requirement. For example, the crime of drug administration in British criminal law is "illegally giving or causing others to give or be taken away by others." [⑩]
The author believes that although the above viewpoints have some merits, starting from the principle of legally prescribed punishment for a crime, and under the legislative background that the current criminal legislation in China clearly stipulates that only drug trafficking is punished, there is no legal basis for punishing donated drugs for drug trafficking. The reasons are as follows: First, the general theory of human trafficking holds that human trafficking should be a paid business. The definition of "trafficking" in criminal law is illegal sale or illegal purchase for the purpose of trafficking. Obviously, the connotation of "trafficking" and "free gift" are obviously different. Secondly, "trafficking" does not need to take profit as an element, which does not mean denying the inevitability of trafficking in terms of its constituent elements. Thirdly, in international conventions and criminal legislation of some western countries, it is obviously supported by a sound legislative background and system to criminalize "providing" and "giving" drugs. However, under the condition that the criminal law of our country has not been clearly stipulated, it is natural that it cannot be simply and blindly applied, otherwise it will not only expand the scope of attack, but also cause unfair law enforcement. However, if the crime of illegal drug circulation is added to the criminal law, donation can also be included in the scope of criminal investigation. At present, only according to the provisions of Article 72 of the Regulations on Administrative Penalties for Public Security, the public security organs can impose corresponding detention and fines according to the illegal act of "providing drugs to others".
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[1] Zhou Zhen wants to compile: A Course of Criminal Law, China People's Public Security University Press, 1997 edition, p. 655.
[2] Chen Xingliang: A Course of Case Criminal Law, China University of Political Science and Law Press, 1993, p. 46 1 page.
[3] Li Yubei, editor-in-chief: Judicial Application of Drug Crimes, Law Press, 2005, 10 Edition, p. 5.
[4] Wang, editor-in-chief: practical research on specific provisions of criminal law, China Founder Publishing House, September 2003, p. 1758.
[5] Cui Qingsheng and Chen Baoshu. : Perspective of Drug Crimes in China, Social Science Press, 1993, p. 168.
[6] Zhao Bingzhi, editor-in-chief: A Study of Drug Crimes, China People's Publishing House, p. 125.
[7] Pet-name ruby Zhang Mingkai: Criminal Law, Law Press, 1997, pp. 868 and 866.
[8] the Supreme People's Court's reply to the Yunnan Higher People's Court clearly pointed out: "One of the circumstances stipulated in Article 2, paragraphs 1 and paragraph 2 of the drug control decision belongs to other crimes of seriously disturbing social order stipulated in Article 14, paragraph 2 of the Criminal Law".
[10] edited by Smith Hogan, Li Guifang: British Criminal Law, Law Press, 2000, p. 482.