Research On Administrative Accessoriness Of Identification Of The Crime Of Illegal Gun Possession

The crime of illegal gun possession has always been a major crime severely punished in China.To judge whether the crime of illegal gun possession is established or not,the key lies in the identification of the two elements of "gun" and "illegal possession".On the one hand,the specific meaning of "gun" has not yet been explicitly stipulated in the penal code of China.Judicial organs need to find legal basis from the administrative legal norms of gun management in order to identify the "gun".On the other hand,China's gun management policy is to prohibit the holding of guns as the principle,to allow the holding of guns as an exception.In order to identify the "illegal possession",judicial organs requires to examine whether the defendant obtains the administrative license for holding guns issued by public security organs in accordance with the provisions of administrative laws and regulations such as Gun Management Law.The nature of being subordinate to administrative legal norms of identification of the crime of illegal gun possession is theoretically called "administrative accessoriness".However,the punishment of the crime of illegal gun possession in China currently is deviated from normal orbit.The defects of Gun Management Law,the reduce of gun identification standards and the failure of the principle of modesty in criminal law result in the generalization of the conviction of the crime of illegal gun possession.It not only makes many ordinary people bear the label of criminals,but also wastes criminal judicial resources and arouses many doubts of public opinion.Therefore,from the theoretical perspective of "administrative accessoriness",this paper combines the relevant contents of criminal law and administrative law,researches on identification of the crime of illegal gun possession in depth,carefully combs the issues in the criminal justice practice and puts forward the basic paths to properly solve the problems.The full paper is about 36000 words,mainly divided into the four following sections except introduction and conclusion.Its main contents are summarized as follows:Part I: An overview of administrative accessoriness of identification of the crime of illegal gun possession.On the one hand,analysing the causes and connotations of administrative accessoriness and pointing out the meaning of administrative accessoriness of identification of a crime.It mainly includes two types,the accessoriness of administrative concepts and the accessoriness of administrative acts.On the other hand,briefly analyzing three elements of the crime of illegal gun possession and discussing the close relationship between identification of the crime of illegal gun possession and administrative legal norms."Violation of gun regulations" is the externalization and characterization of administrative accessoriness of identification of the crime of illegal gun possession.The identification of "gun" and "illegal possession" should be respectively based on the "gun administrative concept" and "gun administrative license" stipulated in the Gun Management Law.Part?: Administrative accessoriness of identification of the crime of illegal gun possession and its realistic problems.Firstly,sorting out the current administrative normative documents and determining that these administrative normative documents are not the "law" in the principle of legality.Judicial organs have no obligation to apply them compulsorily and they can not be used as the legal basis for judicial decisions.Secondly,pointing out that the amplified interpretation of gun by the criterion of gun identification of the Ministry of Public Security goes beyond the possibility of national prediction,beyond the possible meaning of gun in criminal law and violates the principle of legality.Thirdly,determining that the gun licensing system stipulated in Gun Management Law belongs to the special licensing,but the existing gun licensing system has some defects.Civil guns are configurable in a narrow range.It has strong administrative color and the protection of civil rights is neglected.Finally,revealing the common phenomena in criminal justice practice that in regard to the minor conduct of holding guns in order to protect the production and living order in remote mountainous areas and forest areas,judicial organs almost prosecute and convict it as the crime of illegal gun possession.This kind of mechanical criminal regulation violates the principle of modesty in criminal law.Part ?: From the perspective of administrative accessoriness,the theoretical direction of identification of the crime of illegal gun possession.Firstly,determining that the identification of gun should strictly follow the principle of legality.The interpretation of administrative normative documents is only a reference.In regard to the scope and extent of amplified interpretation of gun,strict restrictions must be imposed on the criterion of "national prediction possibility".Secondly,proposing that legislation activities and judicial practice of gun management should correctly grasp the principle of modesty in criminal law and clarify the boundaries between the administrative illegal act of illegal gun possession and the crime of illegal gun possession.Then,the identification and regulation of the crime of illegal gun possession can achieve a dynamic balance between order maintenance and human rights protection.Finally,pointing out that judicial organs should accurately understand the unity of legal order.The identification of the crime of illegal gun possession should not be subject to administrative cognizance and lose its neutral value evaluation and independent judicial judgment.Part IV: From the perspective of administrative accessoriness,the way to rectify the deviation of identification of the crime of illegal gun possession.At the level of norms,there are some defects in the system design of gun management in China's current criminal law and administrative laws and regulations and the identification of the crime of illegal gun possession is based on them,especially the accessoriness and dependence on administrative legal norms of gun management.Therefore,a scientific gun norms system should be established.The concept of "gun" in the sense of criminal law can be explained by amending the specific provisions of criminal law or promulgating legislative interpretation.At the same time,we need to establish an organic connection mechanism between criminal law and administrative law and perfect the administrative legal norms of gun management.At the level of practice,although the identification of the crime of illegal gun possession is subordinate to "gun administrative concept" and "gun administrative license",judicial organs should still maintain their own independent judgment and actively handle cases of illegal gun possession.Firstly,judicial organs should make a substantive and reasonable judgment on whether the gun-shaped objects involved in the case are capable of causing "enough casualties or loss of consciousness" in strict accordance with the provisions of Article 46 of Gun Management Law.Secondly,judicial organs should apply criminal legal norms systematically and give full play to the guiding function of the general provisions of criminal law to the specific provisions of criminal law in the case of illegally gun possession with slight circumstances.Thirdly,judicial organs should integrally examine whether the defendant has mens rea to illegally hold guns.In order to realize the unity of subjectivity and objectivity,fact-based and illegality-based errors should be included in the examining scope of mens rea.