Judicial Determination Of The Crime Of Illegal Possession Of Guns

It is relatively simple to hold that crime of firearm illegally in the first paragraph of article 128 of our criminal law,which is blank for blank counts.It has not been taken seriously by the theorists before.In practice,there's a lot of public outcry over the fact that some of the people have been accused of gun crimes for criminal possession of firearms.The public showed more doubt and disapproval of the judicial process.At the same time,the academic community has put forward many constructive opinions on this judicial treatment.This makes the study of crime of illegal holding guns the crime became more important.The significance of the crime has grown even more evident with the shooting of the women of tianjin in 2016.In,the crime of illegal possession of guns practively has encountered three major controversies: one is the controversy over the standards of guns,what exactly is the meaning of guns in criminal law,who has the right to determine,whether the identification standards of guns of the ministry of public security are too low,and whether the standards should be directly recognized and used by the courts.The second is the dispute of criminal intent,what conditions are necessary for the establishment of criminal intent,and whether the content of criminal intent of legal offense needs to have an illegal understanding.Third,the debate on social harmfulness,what is the nature of crime,the status of social harmfulness in the constitution of crime,and whether it violates the principle of legality of crime and punishment.This paper mainly adopts the method of literature research and the method of case study to write the thesis.It tries to start from sorting out the specific case disputes mentioned above,summarize the opinions of both sides of the case,and clarify the focus of the dispute.Secondly,it elaborates and analyzes the jurisprudence of criminal jurisprudence with the theoretical knowledge of criminal jurisprudence,and puts forward the author's own opinions on the judicial determination of the crime of illegal possession of guns,in the hope of contributing to the judicial determination of the crime of illegal possession of guns in practice.This paper consists of six parts.The first part of the introduction mainly discusses the research background and significance,theoretical and practical progress,research methods and purposes,etc.The second to fourth parts are four chapters reflecting the main content of this paper,corresponding to chapter one,chapter two,chapter three and chapter four respectively.The first chapter is an empirical analysis of the cases of illegal possession of guns in recent ten years,including the total number and characteristics of the cases,and the three main controversial issues involved in the cases.Chapter two discusses the identification of possession and guns.Possession is an objective state of domination over the owner,which can only be used as a means.Holding as the basis of legislation and regulation is the crime of fighting already and preventing trouble;The identification of guns includes qualitative analysis--guns in the sense of life and guns in the sense of regulation;Quantitative analysis of the technical standards for the identification of guns is unreasonable,and the identification of guns should be distinguished between administrative violations and criminal violations;The third chapter discusses the subjective and objective illegality of illegal possession of guns.Firstly,the crime of illegal possession of guns is deliberately carried out,including the content and type of intentional understanding,and the wrong understanding of gun objects affects the establishment of intentional.Secondly,this paper discusses the illegality cognition error hinders the possession of criminal intention,mainly from the types of illegality cognition error and the mainstream theory of illegality cognition error,and then discusses the possession of criminal intention contains illegality cognition.Finally,it discusses the objective and illegal aspects of the crime of illegal possession of guns,that is,the social harm is the key element of the crime of possession.Secondly,hold the social harmfulness of behavior;The fourth chapter is the last chapter of this article,to return to the practice of the crime of illegal holding guns judicial cognizance,unearthed a gun standards and judicial cognizance of three deviation "mechanization of cognizance standard is too low,the judicial discretion of guns,referees have different scale" and combining these problems put forward in this paper,the corresponding train of thought,one is to stick to the essence of the gun judging standard,2 it is prudent that legal committed the crime of intentionally,3 it is to adhere to the social harmfulness of crime essence of judgment.The last part is the conclusion part of this paper.This paper argues that the crime of illegal possession of guns should focus on the substantive judgment of the lethality of guns,and cannot completely rely on administrative standards.The judgment of possession should have the power of actual management and have the continuity of time,which is a kind of subjective intentional behavior.The identification of criminal intention should consider the knowledge of illegality;The use of social harmfulness theory to some of the simulation of gun behavior for illegal possession of guns to carry out the crime is in accordance with the humane law.