The Judicial Determination Of The Crime And Non-crime Of Holding Compressed Gas Powered Gun

Presently,in view of the new situation in judicial practice in which the conviction of holding air guns is abnormally heavy,the Supreme Court and the Supreme Procuratorate jointly issued a joint issue on firearms involving compressed gas-powered firearms.Approval of conviction and sentencing in Air Gun lead bomb Criminal case(hereinafter referred to as "approval").However,"approval" only ends the previous "one-size-fits-all" approach to the quantitative and kinetic energy standard theory,.There is still a lack of clear judgment standards for sin and non-crime,which brings about the excessive discretionary power of the judiciary in practice and a great deal of cases of the same type.In judging the crime and non-crime of holding air gun,we should follow the principle of modesty of criminal law,the principle of the combination of quality and quantity,and the principle of unity of subjectivity aspect and objectivity aspect.It is the substantive standard that the social harmfulness of behavior,and it is the legal standard to determine whether the conduct meets the constitutional elements of the crime.In the objective aspect of holding air gun,the judgment standard of whether air gun belongs to "gun" in the current gun recognition system is not reasonable,the Judge's has too much discretion,the criminal law standard and the administrative standard are in conflict,and so on.It is necessary to redefine and refine the criteria for the identification of guns and to unify the judgment criteria.Holds the air gun behavior the subjective aspect,the cognition mistake theory is applicable.From the subjective point of view,this chapter mainly analyzes that when defining the crime and non-crime of holding air gun,it is easy to appear fact cognition error and illegal understanding error.Factual errors should be identified by parallel evaluation standards in the field of layman,and illegality errors should be identified by combining personal cognition with general public cognition to identify the possibility of avoiding illegality.The determination of social harmfulness of holding behavior should be combined with the specific social harmfulness of holding air gun behavior,rather than judging by the quantity and the injury force of the gun involved.In addition,the use of firearms involved and the subjective cognition,motivational purpose,consistent performance,illegal income,whether to circumvent investigation and other circumstances should also be considered comprehensively.