论毒品犯罪中居间行为的定性

发布时间：2018-05-14 04:45

本文选题：居间行为 + 毒品相关犯罪　；参考：《安徽财经大学》2015年硕士论文

【摘要】：毒品,是一种社会瘟疫。不论哪一个人,一旦沾染毒品,不仅前途尽毁,而且他的家庭也会支离破碎。我国进入80年代后,经济得到快速发展,沾染各种类型毒品的人数也在逐步攀升,成为社会中一个不可忽视的动荡因素。毒品犯罪作为世界公害之一,是当前困扰各国政府的难题①,在中国毒品犯罪给社会治安带来了严重的破坏,这与我国的和谐社会的发展观念不符,必须及时遏止。居间是指为买卖双方牵线搭桥,最终达成买卖合同。在毒品犯罪中有一类行为,由于现实案件中形式的多样性和法律规定的缺失,使该类行为常常游离于罪与非罪、此罪与彼罪的边缘,这就是本文要探讨的毒品犯罪中的居间犯罪行为。毒品犯罪居间行为是指居间人主观无贩毒的故意,自身也没有毒品进行交易,实施为毒品交易人提供联络,制造交易条件,代为买卖毒品等一系列为毒品交易提供便利和促使买卖毒品完成的行为。毒品犯罪的居间行为的行为人在本文中称为居间人,居间人的行为有非所有性、非法性、传递性、非牟利性等行为特点。按照居间人是否接触毒品可以将毒品犯罪居间行为分为接触毒品的居间行为和不接触毒品的居间行为。在本文中,笔者将分析现有的几种毒品居间犯罪定性理论,其中区分理论认为不能将居间行为一律的视为无罪或一律的视为某种犯罪,而应针对毒品犯罪居间行为的具体类型分情况进行讨论,虽然该理论理性较强但是客观上无法囊括各种居间行为的类型,给定性带来了困难;无罪理论认为毒品犯罪居间行为一律不构成犯罪,但是这样的认定显然给很多犯罪分子带来可乘之机,用居间行为的外衣掩盖毒品犯罪,放纵了犯罪的发生;将毒品犯罪居间行为均视为贩卖毒品罪的理论认为,居间人主客观要件都符合贩毒罪构成,毒品犯罪居间行为应当按照贩毒罪定性,这一观点具有很大的片面性,例如为吸毒者购买毒品的居间人,是出于帮助吸毒者的想法为其代购毒品而非主观上有贩毒故意,把类似这样的行为定性为贩卖毒品罪,处罚过于严苛。此三种理论均未将毒品犯罪准确定性的情况下,笔者对于居间行为的定性给出了自己的观点并列举了不同居间行为的形式,希望可以为毒品犯罪居间行为的理论研究及法律实务操作提供一些参考。
[Abstract]:Drugs are a social plague. Whoever is contaminated with drugs will not only ruin his future, but also his family. Since the 1980s, the economy of our country has developed rapidly, and the number of people contaminated with various kinds of drugs has been rising step by step, which has become a turbulent factor which can not be ignored in our society. As one of the world's public hazards, drug crime is a difficult problem that puzzles the governments of various countries at present. In China, drug crime has brought serious damage to public order, which is inconsistent with the development concept of harmonious society in our country and must be stopped in time. Intermediary refers to the agreement between the buyer and seller to reach a contract of purchase and sale. There is a kind of behavior in drug crime, because of the diversity of forms in real cases and the lack of legal provisions, this kind of behavior is often dissociated from crime and non-crime, and this crime is on the edge of that crime. This is the intermediation of drug crimes to be discussed in this paper. The act of intermediation of a drug crime means that the intermediary does not have the intention to deal in drugs subjectively, and does not trade in drugs by himself, provides liaison for the drug dealer, and creates the conditions for the transaction. A series of acts that facilitate and facilitate the sale of drugs. The agent of the intermediation of drug crime is called the intermediary in this article. The behavior of the intermediary has the characteristics of non-all, illegal, transitive, non-profit-making and so on. According to whether the intermediary is in contact with drugs, the intermediate behavior of drug crime can be divided into the intermediate behavior of contact with drugs and the intermediate behavior of non-contact with drugs. In this paper, the author will analyze several existing qualitative theories of drug intermediation, in which the differentiation theory holds that the intermediate behavior can not be regarded as innocent or uniform as some kind of crime. It is necessary to discuss the specific types of intermediation of drug crimes. Although the theory is more rational, it can not include the types of intermediate behaviors objectively, which brings difficulties to the qualitative analysis. The theory of innocence holds that the intermediation of drug crimes does not constitute a crime, but such a determination obviously brings opportunities for many criminals to cover up drug crimes with the cloak of intermediary behavior and indulge the occurrence of crimes. The theory that the intermediation of drug crime is regarded as the crime of trafficking in drugs holds that the subjective and objective elements of the intermediary are consistent with the constitution of the crime of drug trafficking, and that the intermediation of the drug crime should be characterized by the crime of drug trafficking. This view has a great one-sidedness. For example, the middleman who buys drugs for drug addicts is motivated by the idea of helping drug addicts buy drugs on their behalf, rather than subjectively having a drug trafficking intention, and characterizes such acts as the crime of drug trafficking, and the punishment is too harsh. When these three theories do not accurately define the nature of drug crime, the author gives his own views on the qualitative nature of intermediary behavior and enumerates different forms of intermediation behavior. Hope to provide some reference for the theoretical research and legal practice of drug crime intermediation.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.36

【共引文献】