Study On The Judicial Determination Of The Crime Of Illegal Possession Of Guns

In the Criminal Law of The People's Republic of China and the judicial interpretations issued by the superior people's court and superior people's procuratorate,all guns in the sense of criminal law have been clearly defined.The purpose of defining guns is to prevent guns from being used by the perpetrators to commit unlawful acts,endangering social security and creating crimes.In real life,guns that are socially harmful and lethal in reality are illegally held.If such behaviors are subjected to penalty punishments,the public will naturally accept it based on general social awareness.However,in judicial practice,there are often cases where the behavior of holding a imitation gun or a toy gun is convicted and punished.In such firearm cases with very little harm to society,the phenomenon of judicial and law enforcement concepts focusing on combating crimes and neglecting the protection of rights has resulted in the fact that many behaviors with obviously minor circumstance and little harm to society by holding air guns and toy guns are included in some criminal punishments due to the excessively high enforcement standards in the Measures of the People's Republic of China for the Control of Guns formulated by the public security organs.In this regard,although some cases were judged according to the law,they were not consistent with the public cognition,and thus the pressure from public were generated.It is gratifying to note that the Supreme People's Court and the Supreme People's Procuratorate's Approval of Conviction and Penalty Measurement in Criminal Cases Concerning Compressed Gas-powered Guns and Air Guns and Pellets(hereinafter referred to as"Approval")was adopted at the 1,732~thh meeting of the Judicial Committee of the Supreme People's Court on January 25,2018 and the 74~thh meeting of the12~thh Procuratorial Committee of the Supreme People's Procuratorate on March 2,2018.It emphasizes the principle of compatibility of crime,responsibility and punishment,clarifies a new course for the cases involving guns in judicial practice,and plays an important role in rationally handling cases involving guns.Based on the three cases of illegal possession of guns that were committed by“Mr.Zhao,Mr.Lin,and Mr.Li”,this article combs through and analyzes the gun identification standards for air guns,imitation guns and all that in the cases along with the conviction in judgment,and then the conclusion was drawn,with a view to playing a positive role in judicial practice.The article is mainly divided into three parts as follows:Firstly:Through the analysis of three cases and some data related to the cases,the case status of the illegal possession of guns in judicial practice is briefly summarized.This paper sums up and combines the identification of illegal possession of guns in the cases of“Mr.Zhao,Mr.Lin,and Mr.Li”,reviews the case facts and the determination of the cases by the judicial department,and summarizes the main focus of dispute of the cases.Secondly:Legal analysis of the focus of dispute:First of all,in the judicial practice,the rationality of taking the gun identification standards formulated by the Ministry of Public Security in 2010 as the judgment basis constitutes the conformity of the constitutive requirements;Next,whether the perpetrator is subjectively aware of illegality,that is,whether he has the intention of committing a crime of illegally holding guns and whether the crime has the possibility of expectation.At the third place,when the People's Court makes a judgment,whether the identification of the actor's behavior is found to be accurate in the cases,whether the gun-shaped objects the actor held are socially harmful,and whether the gun-holding behavior should be punished for it is socially harmful according to the Criminal Law of the People's Republic of China.Finally,whether the provisions of the proviso in Article 13 of the Criminal Law of the People's Republic of China can be used as the grounds for the decision and whether the“proviso”can be applied in such cases.Thirdly:The analysis of the causes that illegal possession of guns in the three cases committed by“Mr.Zhao,Mr.Lin,and Mr.Li”did not constitute a crime of.In the three cases in this article,the air guns,imitation guns,and other gun-shaped objects they held were all identified as illegal guns according to the Criminal Law of People's Republic of China.The first reason is the conflict between the provisions of the Ministry of Public Security and the Criminal Law which imposes excessively high standards for the use of guns;The second reason is the judgment department's lack of considerations on the social hazards produced by the illegal possession of guns by Mr.Zhao,Mr.Lin,and Mr.Li.The third reason is that the actor does not have criminal consciousness or the anticipated possibility from the perspective of subjective cognition;The forth reason is that the proviso in Article 13 of the Criminal Law of the People's Republic of China can be applied in such cases.After analyzing the above content,the conclusions and implications of the case study are drawn.