Legislative Interpretation And Judicial Recognition Of Crime Of Illegal Possession Terrorism And Extremism Items

Under the background of the state's strict anti-terrorism,criminal law amendment(9)set knowing and serious as a possession to promote the establishment of the Crime of Illegal Possession Terrorism and Extremism Items,which eased the tension between human rights and anti-crime function.But the legal interests is abstract,behavior is fuzzy,knowingly is iffy,relationship is complex,it is very difficult to achieve the expected effect of combating crime and human rights protection in the application,and it is more difficult to escape the routine of behavior.Therefore,it is of great significance to discuss the judicial determination of the crime.In terms of theoretical significance,system analysis of the fuzzy points and theories of legislation is conducive to the clarification the controversial of holding type crime,and to enrich the theory of criminal elements of terrorism and extremism.In terms of practical significance,it is helpful to restrict the interpretation of the applicable standard of the crime,which can help the scientific judgment in practice to judge the crime and non-crime,to regulate the punishment,and to achieve the balance of punishment.In total,there are forty thousand word,which are divided into four part,which are mainly discussed that boundary of crime and non-crime and the relation between this crime and the crime.The first part of the legislative background.Through the background of the Crime of Illegal Possession Terrorism and Extremism Items,shows that the legislative thinking in the area of anti-terrorism criminal law has changed from the regulation to the prevention of risk,to show the cause and the meaning of the crime,to set the stage for the legislative examination.The second part of the judicial cognizance problem.Combining with the legal provisions,theoretical controversies and practical cases,the fuzzy points in the judicial cognizance are analyze and laid the foundation for the discussion of judicial determination.The concrete includes blurry legal interests,fuzzy behavior,iffy knowingly and complex relationship.Among them,the fuzziness including the ambiguity of possession items,the uncertainty of the illegal holding and the serious nature of the case.the uncertainty including content dispute,identification method and conflict with doctrine of the presumption of innocence.The third part considers the position.From the macro,it discussed the position that the judicial decision should stick to,including balancing human rights protection and combating crime,upholding a holistic view of national security and criminal policy of combining punishment with leniency.The fourth part concrete determination.The important part of the study,which is based on the restraint of justice.Analyzes the boundary between the crime and non-crime,the relation between this crime and the crime.Answer the question of blurry legal interests,fuzzy behavior,iffy knowingly and complex relationship.First,by clarifying the legal interests,clarifying behaviors,and presuming clearly,to draw the line between crime and non-crime.The judicial determination of legal interests should be based on legislative guidance,keep to the minimum of public safety,and avoid the mistake of sliding into public security.The judicial determination of objects should grasp the essence,characteristics and types of terrorism and extremism.The judicial determination of possession needs to be clearly held as a factual evaluation,that is,the actual control,and legal domination,and control of the items in a certain period of time.The illegal is the normative evaluation,which should be determined by the combination of the qualifications held and the purpose of possession.The judicial determination of the plot should adhere to the principle of responsibility and prevention of the plot,and focus on the amount,and refer to the standard of the amount of less plot in the case of Crime of Sabotaging Legal Enforcement by Organizing and Using Evil Religion.The judicial determination of knowing should include the illegality and to limit the judicial type presumption as the method.Second,through the analysis of Crime of Illegal Possession Terrorism and Extremism Items,Crime of Sabotaging Legal Enforcement by Organizing and Using Evil Religion,and The new crime of article 120 of the criminal law,to clarify the relationship between this crime and crime.In theory,there is a overlapping of Crime of Illegal Possession Terrorism and Extremism Items,and there is a division of labor in the law.In theory,there is a cover to the crime of Sabotaging Legal Enforcement by Organizing and Using Evil Religion,and there is a bias in the law.The relationship with the article 120 of the criminal law is required to be separate,With the premise of a subsequent crime,the possession of a crime and a subsequent crime belongs to the imagination of concurrence,After the completion of the crime,the person who continues to hold the crime shall be non-punishable.The excessive use of criminal law is very easy to destroy the legality of anti-terrorist measures.It is necessary to exercise restraint in the judicial recognition of Crime of Illegal Possession Terrorism and Extremism Items,pay attention to the balance of human rights protection and anti-crime function,implement a holistic view of national security,implement criminal policy of combining punishment with leniency,and implement rational anti-terrorism in practice.