On The Crime Of Illegal Possession Of Drugs

Due to the particularity of its "possessing" behavior, the crime of possession becomes a compelling charge in the theory of criminal law. The crime of illegal possession of drugs is one typical type of the crime of possession; and it has become one important and eye-catching issue in the theory and the judicial practice because of the rising trend of crimes related to drugs and the great harmfulness of drugs.The crime of illegal possession of drugs was set formally into the ranks of the criminal law in1990, and in1997it was also gave into the criminal law of China. For a long time the legislative value of the crime of illegal possession of drugs as "Miscellaneous Provisions "has been unanimously approved by the theorists. Wang Hanbin, the former Vice Chairman of the NPC Standing Committee, also explained the legislative value of the crime of illegal possession of drugs. This has been fully reflected by Background and Application of the Revised Chinese Criminal Law written by the criminal chamber of legal work committee of the National People’s Congress. First of all, we should try our best to investigate criminal facts of suspects who are seized for holding illegal drugs. If the evidences indicate the purpose of illegal possession of drugs is for smuggling and drug trafficking, it shall make a finding of the smuggling, drug trafficking crime. Only when it is really difficult to verify the criminal evidence of smuggling and drug trafficking should this rule be applied. In spite of some disputes for the legislative value of the crime of illegal possession of drugs as "Miscellaneous Provisions ", there is little discrepancy for the legislative value as a mainstream view. The understanding of the substantial law making and the judicatory practices are associated with the legislative value. These are different. Based on this point, this paper enriches and develops the legislative value on the basis of original legislative value. The crime of illegal possession of drugs as one of the charges in the criminal law includes other basic legislative value in addition to its own legislative value. Firstly, the crime of illegal possession of drugs is set up out of criminal policy consideration, and is also the most important legislative value--"Miscellaneous Provisions ". This value decides its application in the judicial litigation, and the particularity of the combination of the substance and the procedure of illegal possession of drugs. Secondly, the crime of illegal possession of drugs reflects the legal principle of crime and punishment, but it also conflicts with the fuzziness of the criminal law. Finally, the crime of illegal possession of drugs, which serves as the guidelines for judicial proof in legislation, plays the most important role on the basis of guaranteeing judicial justice and fulfills the responsibility of attacking crimes and protecting human rights.The criminal behavior theory is the cornerstone of criminal law theory. The appearance of crime of possession and the research of its behaviors are a great impact to the traditional criminal theory. The traditional theory of criminal law generally claims that "no behavior, no crime", and then the criminal behaviors are divided into the act of commission and the act of omission. The "possessing "nature of the crime of illegal possession of drugs stirs a stormy discussion among theorists. Some think the "possessing "nature is the third way which is independent of the behavior. The "possessing "nature is "situations ". This view shakes the foundation of traditional criminal law theory. This paper holds the opinion that the "possessing" nature is still the traditional criminal behavior, and belongs to act of commission. The crime of illegal possession of drugs or other types of the crimes of possession belong to the jurisdiction of the criminal law in our country where criminal law adjusts no other existing ways but criminal behaviors. The adjustment of criminal behaviors by the criminal law is the important embodiment of the objective aspects of the criminal constitution, and it is also the reflection of the justice of law. So the "possessing "nature in the article348is the criminal behavior. This paper argues that the "situations "in disputation is the persistent state caused by the "possessing "behavior. The crime of illegal possession of drugs aims to ban the illegal possession, which certainly includes the continuation of possession instead of singling out of it so as to restrain it. This paper analyzed the attribute of "possessing "behavior from four aspects--as an act of commission. No matter from the legislative value of the crime of illegal possession of drugs, or from formal logics, or from the nature of the legal norm, the " possessing "behavior is one kind of behaviors which should be distinguished from the persistent state. Clearing the nature is of great significance for the crime of illegal possession of drugs. At the same time, it is more instructive in the specific application of judicial certification.The crime constitution is the only standard for conviction. A study of the crime constitution is the core of entity legislation analysis in this paper. The objective and subjective aspects of the crime of illegal possession of drugs display obvious characteristics. The article348of the criminal law did not have clear instructions and descriptions for objective and subjective aspects of the crime of illegal possession of drugs. It thus becomes the focus for argument. The objective aspects of the focus lie in defining "possession" and "drugs". As for the "possession "of the crime of illegal possession of drugs, its specific manifestation (as one of the classifications) can be held directly or indirectly. The drug crimes of12charges will more or less relate to "possession ". Therefore, the way to make a distinction between the " possession " of the crime of illegal possession of drugs and the " possession " existed in other drug crimes is the key to identify the crime of illegal possession of drugs. This paper holds the opinion that the beginning point of this study should be the legislative value of the crime of illegal possession of drugs. Since its role is "Miscellaneous Provisions ", other purposes of pure "possession "should be excluded. If the behavior could be proved to be with other purposes, it should not be convicted as the crime of illegal possession of drugs. What are "drugs" becomes a hot topic in recent years because drugs are the objects of the possession behavior. And not only the quantity of drugs, but also their purity is becoming greater and greater influential factors of trials. With the development of the society, drug species has been undergoing fast-changing. Some of the new drugs have put forward a new challenge to both entities and judicial practices. This paper holds that the drugs should be specified, either by the enumerative method or by the summary method. This is one aspect in perfecting the crime of illegal possession of drugs in future. And the quantity and purity of drugs are one of the factors to decide the degree of the harmfulness of crimes. In insisting the principle of crime-punishment-matching, which is one basic principle of the criminal law, the quantity and purity of drugs should be taken into consideration in measuring the crime. The impartial justice could only be achieved through a comprehensive analysis of characters and quantities of a crime. The focus of the subjective aspects lies in analyzing "the subjective criminal intention ". The principle of integrating subjectivity and objectivity of the criminal law embodies its progress and civilization. This is particularly obvious in the crime of illegal possession of drugs."The subjective criminal intention "of the crime of illegal possession of drugs is the direct intention, and the crime of illegal possession of drugs could hence be convicted through it. The "knowing" contents of the crime of illegal possession of drugs are also the emphases of this paper. This paper holds that the "knowing" contents should at least include possession behaviors, drugs (being held), illegal possession behaviors and so on. Through this way, it plays an important role for the judicial application.Entities and procedures are interrelated. The crime of illegal possession of drugs as well as other crimes of possession can fully embody the merging of entities and procedures. The crime of illegal possession of drugs needs analysis from the point of view of the judicial certification. The difficulties of application of the crime of illegal possession of drugs do exist in judicial certification. This is also the purpose of this paper, i.e., through the research of entities and procedures of the crime, it can solve some dilemmas of incrimination to a certain extent. The crime of illegal possession of drugs in the judicial certification mainly focuses on proving the "possessing" behavior and "the subjective criminal intention ". In this paper, the "possessing" behavior and the proof contents of "the subjective criminal intention "are analyzed, and hence the burden of proof and the standard of proof are clarified. The criminal suspects during the course of this proof should fulfill the explanation obligation, explaining the legality of their holding or the unintentionality of their subjective intention. This is not contradictory with the legal regulation that the judicial office should bear the burden of proof in criminal cases. It is the basic obligation of citizens. And "the rule in dubious pro reo (no in doubt case)" still must be adhered to. Application of the error correction system and the rule in dubious pro reo (no in doubt case) are two guarantees to ensure the judicial justice and the basic human rights.This paper is divided into six parts. The first part is the introduction. The second part is the evaluation of the legislative value of the crime of illegal possession of drugs, which is the most difficult part of this paper. The third part is the resolution of entity lawmaking of the crime. The fourth part is the judicial certification of the crime. The third part and the fourth part are the main parts of this paper. The prominent feature of this paper is the correlation of the legislative value of the crime of illegal possession of drugs to the analyses of the constitution of entity crime and the judicial certification of the crime. It defines the constitution of the crime from its legislative value (the legislative value of "Miscellaneous Provisions) so as to guide its judicial application, realize the legislative value of the crime of illegal possession of drugs, and solve some difficulties and doubtful points in the judicial practice. The fifth part is the legal improvement measures, which offers envision of the legislative development from both entities and procedures. The sixth part is the conclusion.