非法持有枪支罪的司法偏差与立法缺陷——以赵春华案及22个类似案件为样本的分析
发布时间：2018-08-05 16:58
【摘要】：通过对赵春华案及22个类似案件展开实证分析,可以揭示出非法持有枪支罪的司法偏差与立法缺陷。在定罪问题上,赵春华没有犯罪故意,其他案件的被告人极有可能也是如此。审理这些案件的法院大多在没有讨论是否存在犯罪故意的情况下而径直做出有罪判决,其正当性存在疑问。由于主观构成要件被虚置,非法持有枪支罪在一定程度上被法院滥用了。在量刑问题上,这些案件普遍得到了从轻处罚,缓刑适用率很高,甚至部分不符合缓刑适用条件的案件也被法院适用了缓刑。在法律规定的范围内对被告人进行从轻处罚具有一定的合理性,超出法律的规定强行对不符合条件的案件适用缓刑,在合法性上存在疑问。我国对于非法持有枪支罪的立法存在缺陷。这个缺陷不是公安部的枪支认定标准的门槛太低,而是非法持有枪支罪的空白罪状中的"枪支管理规定"为公安部的枪支认定标准进入刑事审判领域提供了法律依据。将"枪支管理规定"修改为"枪支管理法律",可以防止赵春华案的再次发生,还能够将我国目前对于枪支的单一刑法管理体制转变为刑法和行政法二元并行的管理体制。
[Abstract]:Through the empirical analysis of Zhao Chunhua case and 22 similar cases, the judicial deviation and legislative defects of the crime of illegal possession of firearms can be revealed. On the issue of conviction, Zhao Chunhua did not intend to commit a crime, and the defendants in other cases are likely to do the same. Most of the courts hearing these cases have ruled directly without discussing the existence of criminal intent, and their legitimacy is in doubt. The crime of illegal possession of firearms has been abused by the court to some extent because the subjective elements are fictitious. On the issue of sentencing, these cases are generally given a lighter punishment, the application rate of probation is very high, even some cases that do not meet the applicable conditions of probation are also applied by the court. It is reasonable to punish the defendant with lighter punishment within the scope of the law. Beyond the provisions of the law, probation is applied to the cases that do not meet the conditions, and there is doubt on the legality. There are some defects in the legislation of illegal possession of firearms in our country. This defect is not that the threshold of the Ministry of Public Security's gun recognition standard is too low, but that the "gun control regulations" in the blank case of illegal possession of firearms provide a legal basis for the Ministry of Public Security's gun recognition standard to enter the field of criminal trial. Amending the "regulations on Gun Control" into "the Law on Gun Control" can prevent the recurrence of Zhao Chunhua's case, and can also transform the single criminal law system for guns in our country into a dual administrative system of criminal law and administrative law.
【作者单位】： 天津财经大学法学院;
【基金】：国家社科基金重大项目“构建中国特色案例制度的综合系统研究”(项目编号:16ZDA068)的阶段性研究成果 中国法学会部级法学研究课题“刑事指导性案例的法教义学研究”(项目编号:CLS2016D45)的阶段性成果
【分类号】：D924.3
，
本文编号：2166410
[Abstract]:Through the empirical analysis of Zhao Chunhua case and 22 similar cases, the judicial deviation and legislative defects of the crime of illegal possession of firearms can be revealed. On the issue of conviction, Zhao Chunhua did not intend to commit a crime, and the defendants in other cases are likely to do the same. Most of the courts hearing these cases have ruled directly without discussing the existence of criminal intent, and their legitimacy is in doubt. The crime of illegal possession of firearms has been abused by the court to some extent because the subjective elements are fictitious. On the issue of sentencing, these cases are generally given a lighter punishment, the application rate of probation is very high, even some cases that do not meet the applicable conditions of probation are also applied by the court. It is reasonable to punish the defendant with lighter punishment within the scope of the law. Beyond the provisions of the law, probation is applied to the cases that do not meet the conditions, and there is doubt on the legality. There are some defects in the legislation of illegal possession of firearms in our country. This defect is not that the threshold of the Ministry of Public Security's gun recognition standard is too low, but that the "gun control regulations" in the blank case of illegal possession of firearms provide a legal basis for the Ministry of Public Security's gun recognition standard to enter the field of criminal trial. Amending the "regulations on Gun Control" into "the Law on Gun Control" can prevent the recurrence of Zhao Chunhua's case, and can also transform the single criminal law system for guns in our country into a dual administrative system of criminal law and administrative law.
【作者单位】： 天津财经大学法学院;
【基金】：国家社科基金重大项目“构建中国特色案例制度的综合系统研究”(项目编号:16ZDA068)的阶段性研究成果 中国法学会部级法学研究课题“刑事指导性案例的法教义学研究”(项目编号:CLS2016D45)的阶段性成果
【分类号】：D924.3
，
本文编号：2166410
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