论容留他人吸毒罪的处罚范围

发布时间：2018-04-27 22:59

本文选题：容留行为 + 处罚范围　；参考：《厦门大学》2014年硕士论文

【摘要】：容留行为,究其实质为吸毒行为的帮助行为。在吸毒行为已经非罪化的背景下,将容留行为纳入刑法的规制范畴,应当特别慎重。鉴于容留行为的处罚范围不明晰,有过于扩张刑罚权的倾向,应合理界定容留行为的处罚范围。刑法之所以将容留行为纳入规制范畴,在于容留行为对社会法益的侵害或者侵害的危险,有导致危害社会公众健康、扰乱社会公共安宁的危险。当今,我国司法实践中,对容留行为的处罚范围较大,将不值得动用刑罚处罚的行为也纳入了刑法的规制范畴,因此有必要对容留行为的处罚范围进行限制。对容留行为的处罚范围进行限制,主要有运用《刑法》第十三条“但书”的规定、期待可能性理论、中立的帮助行为理论、可罚的违法性理论等四种路径选择。在分析的基础上,适用可罚的违法性理论对容留行为的处罚范围进行限制具有较强的说服力,也与我国现有法律框架的规定相协调。除引言和结语外,本文分为四章：第一章主要介绍容留行为,包括容留行为的概念、容留行为的界定以及容留行为的分类等；第二章为容留行为之处罚,运用“法益侵害说”对容留行为的入罪进行论证,对我国及域外的相关立法进行了介绍及评析；第三章介绍了限制容留行为的处罚范围的几种可能路径选择,并对其能否适用进行分析论证；第四章为本文的结论部分,介绍了可罚的违法性理论,并对运用该理论对容留行为的处罚范围进行限制进行了可行性分析。
[Abstract]:The nature of sheltering behavior is the helping behavior of drug-taking behavior. Under the background of the decriminalization of drug abuse, we should be careful to bring the sheltering behavior into the scope of criminal law. In view of the fact that the punishment scope of the sheltering act is not clear and has the tendency to expand the penalty power, the punishment scope of the sheltering act should be reasonably defined. The reason why the criminal law brings the behavior of accommodation into the scope of regulation lies in the danger of infringement or infringement of the social legal interests caused by the sheltering behavior, which leads to the danger of endangering the public health and disturbing the public peace. Nowadays, in the judicial practice of our country, the punishment scope of the sheltering act is large, and the behavior which is not worthy of using the penalty punishment is also included in the scope of the criminal law, so it is necessary to restrict the punishment scope of the sheltering act. There are four ways to restrict the scope of punishment for accommodating behavior, such as the application of the proviso in Article 13 of the Criminal Law, the theory of expectation possibility, the theory of neutral helping behavior and the theory of illegality. On the basis of the analysis, the application of the theory of punishable illegality has a strong persuasive effect on the limitation of the punishment scope of the sheltering act, and it is also in harmony with the provisions of the existing legal framework of our country. In addition to the introduction and conclusion, this paper is divided into four chapters: The first chapter mainly introduces the behavior of accommodation, including the concept of the behavior of accommodation, the definition of the behavior of accommodation and the classification of the behavior of accommodation. The second chapter is the punishment of the act of accommodation, which uses the theory of legal interest infringement to prove the incrimination of the act of accommodation, and introduces and evaluates the relevant legislation of our country and its foreign countries. The third chapter introduces several possible paths to limit the scope of punishment of the behavior of accommodation, and analyzes and demonstrates whether it can be applied. Chapter four is the conclusion of this paper, which introduces the theory of illegality and analyzes the feasibility of using the theory to limit the penalty range of the behavior of accommodation.
【学位授予单位】：厦门大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

【引证文献】