Imperfection Of The Setting For The Crime Of Illegal Drug-holding & Legislative Perfection

This paper aims to probe into the setting up of the crime of illegal drug -holding (hereinafter referred to as "this crime").This crime has been stipulated in Article 348 of the Criminal Law of our country. The Legal Committee of the NPC Standing Committee has made an interpretation of this crime. The legislative intent is to carry out the punishment on the action of "holding" without any clear or definite provision of "being fully aware". Then the setting up of this crime has the feature of supplementing. The legislative basis originates directly from the Decision on Drug Prohibition by the NPC Standing Committee. This meets the practical demand. Meanwhile, it is also affected by the foreign legal theories and the theories concerning the legislative and judicial application, such as the classical objectivism of criminal law, the setting up of holding-type crime, and the principle of Strict Liability, etc. Although there occur inner contradictions during the application of this crime due to the problem of "being fully aware", the setting up of the law has not been interfered. The reason is all the confirmation for the value orientation in social protection. However, along with the advancement of democratic constitutionality, the guarantee of human right has been a tendency. And the setting up of this crime is contrary to this. We shall at least attach the same importance to both aspects.Because the subjective form of "illegal holding" is difficult to ascertain and is unable to be gotten round, the relevant doctrinal interpretations occur to illustrate with demonstration. But the judgment on " intentional action "is still unclear. The only judgment of" intentional action" is hard to be concluded from the action of "holding". As a result, the simple inference of "being fully aware" cannot be avoided. The reasons are: first, the non-definition and fuzziness in law due to no provision of "being fully aware"; second, the difficulty in proving the crime results further in the avoidance of such difficulty. As we know, the investigating organs have no obligation to prove this crime; third, the difference in individual quality among judicial personnel; fourth, the development trend of increasingly seriousness and complication of drug crimes. Through the analysis, we make sure of the original intent to set up this crime, the non-effect of theoretical doctrine as well as the essential defect of the form of this crime. We also make sure of the essential punishment on the action of "holding" on practical application, and the findings on the obvious tendency of the setting up of this crime-objective imputation of guilt.There exist insurmountable contradictions in the setting of this crime. The reasons lie with that the internal stipulations are not scientific and that there exist theoretical defects hard to be remedied. The first defect is that the setting up of this crime has violated the principle of uniformity between subjectivity and objectivity (hereinafter referred to as USO). First of all, we should understand the objectivity and subjectivity in the criminal law. We illustrate the relationship between them and this crime under the analysis of main viewpoints; second, we discuss the formation of the principle of USO from the following two aspects, one is USO of guiding ideology of conviction, the other is USO of standard for conviction. We should deeply realize the inherent meaning of the principle of USO and its inevitability as the crucial guiding principle of the criminal law; third, we demonstrate that the fuzziness of the forming of this crime is contrary to the principle of USO, that the accuracy is the ultimate goal of the legal norms, whereas the fuzziness meets criticism essential. The second defect is that the setting up of this crime has fallen into the wrong, condition of "Strict Liability" of the West. We should essentially negate the "Strict Liability", and yetdemonstrate the viewpoints that the criminal law in our country should get rid of the principle of "Strict Liability" and that thi...