Analysis On Judicial Determination Of The Crime Of Illegally Possessing Firearms

The firearms Law of the People's Republic of China(Hereinafter referred to as “The Firearms Law”)issued in 1996 for enforcement and then amended in 2015 explicitly stipulates: any unit and individual who illegally possesses or conceals firearms will constitute criminal offenses.In 1997,by incorporating related stipulations from “The Firearms Law”,The Criminal Law added a new crime of illegally possessing firearms and included it in the chapter titled with the crime of endangering public security.In light of the systematic interpretation method,“firearms” illustrated in this chapter have at least maintained a level of danger equivalent to that for ammunition,explosive and hazardous substances,resulting in great possibilities to imperil major public securities.In practices,vast numbers of cases involving “imitation firearms” are frequently convicted of crimes of illegally possessing firearms.As a matter of fact,most people involved are completely unaware that the “firearms” they are carrying have hit the legal warning line as to the standard of “specific kinetic energy of muzzle”.And they also could not find the way to know what kind of power can reach this standard with a specific kinetic energy of muzzle up to 1.8 Joule/square centimeter.In recent years,circumstances where people are criminally punished for carrying firearms are not rare in practices,from which some problemshave been found,such as,inconsistent legal grounds applicable to conviction and punishment measurement of the crime,judicial officials' failing to reach a consensus.These problems will not only affect the accurate determination between crime and non-crime,but will also be associated with judicial fairness and authority.This article,about 20,000 words,is divided into four parts.They are basic information of the case,analysis on related jurisprudential problems,analysis and conclusion of this case and study revelation of this case.This first part illustrated the basic information of the case,including cause of the case,brief introduction of the case and divergences.According to these divergences,the author summarized three dispute focuses for this case: Firstly,is the “air firearm” used for shooting the balloon in this case equal to “firearms” stipulated in the criminal law;Secondly,is the “Knowledge of illegality” an essential element of criminal intent;Thirdly,is the behavior of the doer to set up a balloon shooting stall featured with the substantive characteristics of the crime of illegally possessing firearms.The second section is related jurisprudence analysis.In this section,identification standards of firearms in “the crime of illegally possessing firearms” stipulated in The Criminal Law were firstly analyzed.Combining the rank relationship of laws and regulations in terms of jurisprudence and adoptingthe “systematic interpretation”,one of criminal law explanations,to attempt to seek for a reasonable identification standard for firearms;Secondly,to analyze whether “knowledge of illegality” is an essential element of criminal intent and discuss the disputes of this theory in the Continental Law System and the domestic theoretical circles of the criminal law to get an affirmative result.It pointed out that “knowledge of illegality” being an essential element of criminal intent is in line with the principle of legally prescribing punishment for a specified crime as well as with the principle of modesty of the criminal law.Besides,crimes will be effectively restrained.Then,based on the crime of illegally possessing firearms,this article analyzed that the doer had pulled back the criminal intent due to lack of the knowledge of illegality;Last but not least,several theories regarding the essence of crime were summarized and discussed.Theory of legal interest damage,theory of norm violation and theory of hazard to society are employed to evaluate the essence of the crime of illegally possessing firearms respectively.The discussion can lay a solid foundation for accurate identification of the behavior of the old lady in Tianjin.The third part is the conclusion of study for this case.Despite that the identification standard of firearms adopted by the Ministry of Public Security has ensured a stronger maneuverability,applying 1.8 Joule/square centimeter,the standard of the Ministry of Public Security,during the course of public security personnel's law enforcement and investigation,and taking this practice for granted may place the application of department rules beyond the criminal law.The Work Regulations for Performance Appraisal of Firearms and Ammunition released by the Ministry of Public Security is the violation of the higher-level law“The Firearm Law” rather than the refining of this law.According to the entire system of criminal law,“firearms” should be dangerous enough before it is subject to the criminal law regulations.The standard that shooting from a distance of 10-20 cm to injure the naked eyes cannot be simply used to evaluate firearms;Secondly,air firearm shooting is a kind of entertainment which can be frequently seen on the streets.The doer Zhao took over the stall from others and had operated for two months,regularly paying stall fees every month.The doer did not subjectively realize that the firearm involved is the one stipulated by the criminal law.The doer,because of subjective lack of knowledge of illegality,had pulled back the criminal intent.Consequently,based on three theories about the essence of the crime,including the theory of legal interest damage,theory of norm violation and theory of hazard,the article evaluated the doer's acts of setting up this balloon shooting stall.All these three theories could help to draw the conclusion that the doer did not constitute the crime of illegally possessing firearms.The fourth part,also the conclusion of the article,is the study revelation of the case.It seems less reasonable to consider the Ministry of Public Security's stipulations as the standards to evaluate the crimes of firearms.Therefore,the article suggested that acts which have been incriminated in accordance with the identification standard of firearms adopted by Ministry of Public Security but failed to cause serious social harms should be decriminalized.Then,it called for that precisely grasp the conviction standard for the crime of illegally possessing firearms,raise the standard of criminal punishment for crimes of firearms and distinguish standards between imitation firearms and genuine firearms in criminal law.The criminal law will not turn a blind eye to crimes,meanwhile,it should make sure that punishments shall correspond to crimes.Only the governance by proper laws can promote the construction of a law-ruled society.