Research On The Penalty For Drug Crimes

As far as Chinese people are concerned, the historical and political meaning of drugs and drug crimes is more special than that of other crimes. Historically, Chinese semi-feudalistic and semi-colonial society began at the war of opium in 1840, the lose of sovereignty and the humiliation led by the friction of opium trade, has been a shadow forever in every Chinese human being's heart. So only from this point of view, it is probable that there is not any crime which is able to be as horrible as drug crimes in China. Although death penalty is used to deal with drug crimes, the government and nationals feel that the punishment of drug crimes is not enough, and the threat of drug crimes to the society is still huge. This kind of heavy penalty of criminal judicial exercise showed an extreme anxiety to historical experience and an inferiority to historical facts. The historical feeling cannot be explained only by characteristic of social harm. However, to discuss drug crimes under criminal law, we have to do exact judgment and theoretical research of drug crimes on the basis of the characteristic of social harm, which is a conflict difficult to avoid.The author has engaged in handling out drug crimes cases for a long time, and feels strongly that the application of death penalty on drug crimes is so abusive and ineffective. Therefore, the author considers that we should abolish death penalty either for the sake of justice or benefit. Along with the practical issue of the application of death penalty on drug crimes to think further and research extensively, we can see that there are many problems in the legislative equipment and judicial application of the whole sentence of drug crimes. Moreover, they connect with and affect each other. The root and origin of these issues relates closely to the nature of drug crimes. The following issues are the most significant ones we met when dealing with drug crime cases. First, the tendency of drug crimes has not been prevented effectively by the so called "severe attack". Second, the application of death penalty and unlimited imprisonment is abusive, the power of which is going down. In the meanwhile, the application of limited imprisonment and property penalty is less, the tendency to use heavy penalty is serious. Third, to judge criminal's knowledge is quite difficult because of some subjective and objective factors. In conclusion, there are many flaws in the sentence of drug crimes, which is focal point for us to study. This essay raises the criminal view of dangerous criminals of drug crimes and the responsive mode of penalty to confine and abolish death penalty, as well as restrict heavy penalty.This essay includes eight parts, namely preface, the concept of drug, the general introduction of drug crimes, the nature of dangerous criminals of drug crimes, the practice and analysis of drug crimes' penalty, the relief of the penalty of drug crimes, the restriction of heavy penalty in the measurement of drug crimes, and the discussion of criminal policies in drug crimes. This structure is on the basis of the following thinking, namely to construct a criminal view of drug crimes first; then to raise a penalty view of drug crimes; third, to advance recommendations and revisional methods. Firstly, the concept of drug is the foundation of the research of drug crimes. The concept of drug in criminal law is different from that in society. Secondly, drug crime is the name of a variety of crimes which have the same or similar natures. So we cannot make its concept and characteristics clearly simply through the application of the theory of constitutional elements or the conclusions of some experiential observation. The concept of drug crime ought to and have to be on the basis of the concept of drug. Third, the valuation of the penalty of drug crime in the present in our country; this essay try to find out the conflicts of the measurement of drug crimes in judicial practice through specific analysis. Finally, the nature of drug crimes decide the criminal policies, which is the whole responsive attitude of our country to drug crime, taken by our country on it. After the analysis of penalty of drug crime, the author considers how to design the penalty of drug crime in theory.This essay analyses a series of fundamental theoretical issues existed in drug crime systematically and in detail in the way of systematic explanation, evidential analysis, and comparative analysis, and reaches the following conclusions:First, it is the transitional, rather than the natural characteristic of drug makes it a harmful matter of our society. Drugs are easily abused by people. This transitional characteristic of drugs causes the different valuations of social character of medicine and drug, which have the same origin.Second, it is the emphasis of drug abuse, rather than the characteristic of seeking profit, history, or field of drug crime, leads drug crimes becomes a category of crime different from other forms of crimes. Drug crime is a kind of crime which provides previous condition for drug abusing; itself is not harmful to the society. Only when drug abuse happens, can drug crimes have a harmful effect on the society.Third, because drug abuse does not have direct effect on social life, the valuable settlement of criminal policy of drug crimes should appropriate. Property penalty should not be applied any more when death penalty or unlimited imprisonment has already been applied for criminals who committed drug crimes. In addition, although drug crimes should be on the basis of drug abuse to have harmful effect on the society, drug taking, as the typical form of drug abuse, should not be considered as a crime. On the one hand, it is a right for a human being to decide whether taking drug or not. On the other hand, the legislative purpose of Article 353 of Criminal Law will not come true in practice if we prescribe drug taking as a crime.Fourth, drug crimes ought to be dangerous criminal. Drug crimes cannot lead to drug abuse, or injure people's lives or health directly. Compared to homicide or attack, the conduct of drug crimes does not cause practical harm, but is dangerous to cause practical harm.Fifth, this essay raises a three-phase measurement of penalty of drug crimes. The middle penalty should play the most important role in measuring penalty of drug criminals, and apply lighter and heavier penalty as a supplement. This essay also tries its best to raises settlement methods of some important issues in the judicial practice. The key point is to construct a three-phase measurement of penalty. The author advances some referential opinions concerning limited imprisonment, sets up methods on how to sentence unlimited imprisonment, or even death penalty indirectly, and raises some referential standard on limiting the application of death penalty, as well as some rules to judge subjective knowledge.