分歧与定性:毒品交易中的居间行为
发布时间：2019-02-24 09:18
【摘要】：关于毒品交易居间行为的性质,《禁毒法》与最高司法机关的司法解释持不同的态度,学界存在"无罪说""贩卖毒品罪说""因情定性说"等三种不同的主张。结合中国刑法既定性又定量的特点,根据共同犯罪理论分析,毒品交易居间行为不能简单地一概以犯罪论处,也不能简单地一概不以犯罪论处,更不宜一概以某种犯罪论处,需要根据其所依附的行为,以及居间行为对毒品交易的促进作用来确定。毒品交易中居间介绍行为原则上应依《禁毒法》追究行政责任,居间实行行为除两种情形外,原则上要以毒品犯罪的共犯处理。在确定毒品交易居间行为与哪一方成立共同犯罪以及定何种犯罪时,需要分类根据共同犯罪理论确定。
[Abstract]:As to the nature of the intermediation of drug trade, the Drug Control Law holds different attitudes from the judicial interpretation of the highest judicial organs, and there are three different opinions in academic circles, such as "innocence", "drug trafficking" and "characterization because of emotion". In light of the established and quantitative characteristics of Chinese criminal law, and according to the theory of joint crime, the intermediation of drug transactions cannot simply be treated as a crime, nor can it simply not be dealt with as a crime, let alone as a crime. It needs to be determined in terms of the behavior to which it depends and the facilitating effect of intermediation on the drug trade. In principle, the intermediary introduction should be investigated for administrative responsibility according to the Drug Control Law. Except for two cases, the intermediary behavior should be dealt with as an accomplice in drug crime in principle. It is necessary to classify drug trade as the theory of joint crime in order to determine with which party the joint crime is established and which kind of crime is to be established.
【作者单位】： 安徽大学法学院;
【基金】：国家社会科学基金重点项目“现代风险的治理与非传统安全的刑法保障”(项目号:13AFX011)的阶段性成果
【分类号】：D922.14
，
本文编号：2429407
[Abstract]:As to the nature of the intermediation of drug trade, the Drug Control Law holds different attitudes from the judicial interpretation of the highest judicial organs, and there are three different opinions in academic circles, such as "innocence", "drug trafficking" and "characterization because of emotion". In light of the established and quantitative characteristics of Chinese criminal law, and according to the theory of joint crime, the intermediation of drug transactions cannot simply be treated as a crime, nor can it simply not be dealt with as a crime, let alone as a crime. It needs to be determined in terms of the behavior to which it depends and the facilitating effect of intermediation on the drug trade. In principle, the intermediary introduction should be investigated for administrative responsibility according to the Drug Control Law. Except for two cases, the intermediary behavior should be dealt with as an accomplice in drug crime in principle. It is necessary to classify drug trade as the theory of joint crime in order to determine with which party the joint crime is established and which kind of crime is to be established.
【作者单位】： 安徽大学法学院;
【基金】：国家社会科学基金重点项目“现代风险的治理与非传统安全的刑法保障”(项目号:13AFX011)的阶段性成果
【分类号】：D922.14
，
本文编号：2429407
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