毒品犯罪的法律适用难题及其解决

发布时间：2018-03-26 11:58

本文选题：毒品犯罪　切入点：以贩养吸　出处：《辽宁大学》2014年硕士论文

【摘要】：毒品犯罪率在司法实践中已经呈现出连年升高的趋势。面对毒品犯罪高发率,司法机关进行从严打击是势在必行的,毒瘤不清必然会连带引发其他犯罪,进而影响社会整体的秩序。但从严打击毒品犯罪也要在刑法理论及刑法典的范围内进行,在做到“从严”的同时也应注意“依法”的要求。当前,司法机关在处理“以贩养吸”类涉毒案件时,不区分“以贩养吸”者贩卖的毒品与持有的毒品,一经查证贩卖毒品的犯罪事实,将持有的毒品也按照贩卖毒品罪定罪处罚。司法机关的这种实践做法难免打击重于保护。并非“以贩养吸”者持有的毒品不能以贩卖毒品罪定罪,只要查证其持有的毒品用于贩卖,仍可以贩卖毒品罪定罪,如果无法查证其持有的毒品用于贩卖,且持有的毒品达到非法持有毒品罪的追诉标准,则应按照贩卖毒品罪与非法持有毒品罪数罪并罚。毒品居间行为的罪质认定也是司法机关在处理毒品犯罪过程中经常遇到的问题。毒品居间行为种类繁多,是刑法已有涉毒犯罪衍生出的相关涉毒行为。毒品居间行为是否构成涉毒犯罪,需要个案分析。毒品居间行为并未被刑法明确规定为犯罪,实践处理毒品居间行为是在将毒品居间行为个案分析后,归结到已有的涉毒罪名中去。本文以案例的形式分析司法实践中几种常见的毒品居间行为,明确毒品居间行为构成犯罪的条件。毒品犯罪的侦查有着明显区别于其他犯罪侦查的特点,毒品犯罪的侦查取证手段最易成为辩护方申请非法证据排除的理由,也最易影响涉毒被告人的定罪与量刑。因此,毒品犯罪的侦查方式对于司法机关处理毒品类犯罪至关重要。本文围绕“诱惑侦查”与“控制下交付”两种主要的毒品犯罪侦查方式进行论述,明确毒品犯罪的合法侦查尺度,并对填补侦查过程中毒品鉴定方法的一些漏洞提出建议。毒品犯罪的量刑趋于公式化,刑法对于几种常见的毒品类型结合数量,确定了基本的量刑幅度。审判机关根据量刑规范化的要求,对于确定毒品被告人的刑期公式更加细致,考虑的因素更加周全,但新型毒品的出现对于已有的计算公式带来挑战。根据刑法及禁毒法对于毒品的定义可知,凡是列入《麻醉药品目录》和《精神药品目录》中的药品和其他物质均是刑法意义上的毒品。由此可见毒品的种类远不止常见的鸦片、吗啡、可卡因、冰毒等,因此需要建立一种毒品的毒性等级体系,并相应修改审判机关的毒品量刑公式,引入毒性等级参数,保证刑罚与毒品毒性相当,罚当其罪。毒品罚金刑的计算也需要确定计算方法,在本文中的第四部分一并论述。
[Abstract]:The drug crime rate has shown a trend of increasing in judicial practice for several years. In the face of the high incidence of drug crimes, it is imperative for the judicial organs to crack down on the drug crime rate. If the cancer is not clear, it will inevitably lead to other crimes. Thus affecting the order of the society as a whole. But cracking down on drug crimes must also be carried out within the scope of the criminal law theory and the criminal code. We should also pay attention to the requirements of "according to law" while we are "strict". When dealing with drug-related cases such as "trafficking and smoking", the judicial organ does not distinguish between the drugs sold by the "peddlers" and those in possession, and once the facts of the crime of drug trafficking have been verified, It is inevitable that the practice of the judicial authorities is more serious than protection... drugs held by people who are not "fed and smoked" cannot be criminalized as drug trafficking. As long as it is proved that the drugs in its possession are used for trafficking, the crime of drug trafficking can still be convicted, and if it is not possible to verify that the drugs in its possession are used for trafficking, and the drugs in possession meet the standards for prosecution of the crime of illegal possession of drugs, Then the crime of drug trafficking and the crime of illegal possession of drugs should be punished together. The quality of the crime of drug intermediation is also a problem frequently encountered by the judicial organs in the course of dealing with drug crimes. There are many types of drug intermediation. Whether drug intermediation constitutes a drug-related crime needs case analysis. Drug intermediation is not explicitly defined as a crime in criminal law. The practice of dealing with drug intermediation is to analyze the case of drug intermediation, which can be attributed to the existing drug-related charges. This paper analyzes several common drug intermediation behaviors in judicial practice in the form of a case study. The investigation of drug crimes is obviously different from that of other crimes. The means of collecting evidence for drug crimes are the most likely reasons for the defense to apply for the exclusion of illegal evidence. It is also most likely to affect the conviction and sentencing of drug-related defendants. The investigation method of drug crime is very important for the judicial organ to deal with the drug crime. This paper discusses the two main methods of drug crime investigation, namely "enticement investigation" and "controlled delivery", and clarifies the legal investigation standard of drug crime. And put forward some suggestions to fill some loopholes in drug identification methods in the course of investigation. The sentencing of drug crimes tends to be formulaic, and the criminal law combines the quantity of several common drug types. The basic range of sentencing has been determined. According to the requirements of the standardization of sentencing, the judicial organs are more careful in determining the formula of the sentence of the drug accused, and the factors considered are more comprehensive. But the emergence of new drugs poses a challenge to existing formulas. According to the definition of drugs in criminal law and drug law, All drugs and other substances listed in the catalogue of Narcotic drugs and psychotropic substances are drugs in the sense of criminal law. It can be seen that the types of drugs are far more than common opium, morphine, cocaine, methamphetamine, etc. Therefore, it is necessary to establish a drug toxicity rating system, and revise the drug sentencing formula of the judicial organs accordingly, introducing the toxic grade parameters, so as to ensure that the penalty is comparable to the drug toxicity. The calculation of drug fine also needs to determine the calculation method, which is discussed in the fourth part of this paper.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

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