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Definition Of The Concept Of "Firearms" In The Crime Of Illegal Possession Of Firearms

Posted on:2021-04-05Degree:MasterType:Thesis
Country:ChinaCandidate:T LuoFull Text:PDF
GTID:2416330623981077Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
In recent years,the number of cases of illegal possession of firearms has surged in judicial practice,making the “firearms” determination standard in such cases increasingly the focus of controversy.Different firearms determination standards will inevitably affect the conviction and sentencing of cases.The crime of illegally possessing a firearm is a legal offender.The typical characteristic of a legal offender is that it has a double illegal nature,that is,it needs to make a double judgment of administrative violation and criminal violation.How to judge the relationship between the two,illegal judgment theory is based on the unified background of the legal order,and proposed three theories of illegal monism,illegal relativity and illegal pluralism.Due to its inclusiveness,the pluralism of illegality emphasizes that illegality is a kind of value judgment,and there are different value choices according to different normative purposes.On the basis of affirming commonality,it also emphasizes individuality,with legal infringement judgment as the core and independence.Judging that the substance did not violate the criminal law,excluded from the punishment,so it has gradually become the mainstream view.On the basis of concluding and analyzing the theoretical disputes of the standards for determining guns,a total of 110 related cases were collected through methods such as Peking University's magic weapon,and sample analysis was conducted to understand the overview of judicial practice on the determination and application of firearms,and summarize the conviction and sentencing of such cases in judicial practice.Features and laws.Through the analysis of sample cases,it is found that the vast majority of the application of firearms in judicial practice directly adopts the determination standards of administrative law.Only a few cases have conducted further criminal law evaluation of the determination of firearms.The judgment highlights the Administrative law standards are too dependent.And the sample case shows that when the case enters the court trial stage,the guilty verdict rate is as high as 100%.For the same period,the same illegal behavior,and different judgment time,there are certain differences in the results,which is more obvious in the sentencing.The perpetrator holds the firearm on the same cause,and the number and type of firearms held objectively are the same However,the verdictis very different.The sample case,while insisting on guilty by the administrative law standard,has a direct consequence of lowering the guilty threshold,so that the sentencing shows a tendency of excessive leniency,and attempts to resolve the low conviction threshold by easing the sentencing problem.The reason for the above-mentioned problems in the sample cases is that the applicable standard of firearms as the basis for objective conviction is unreasonable,and the standard for determining firearms in administrative law cannot be directly applied,nor can it be equivalent to the standard for determining firearms in criminal law.The sample case reflects whether the actor subjectively recognizes that the possession of the gun is confusing,because of the confusion of the illegal cognition theory,and the lack of specific operational standards in judicial judgment,often requiring the referee to be more rigorous Subjective value evaluation.In addition,the administrative law and the criminal law have different departmental law value orientations and different adjustment categories.As their manifestations,there are also differences between the administrative violation and the criminal violation.Whether the current single-track legislative model of my country can adapt to the problems brought about by the volatility of legal offenders is the reason for the problems in the sample cases.Recognizing the problem correctly and proposing solutions to the problem and the reasons behind it are the best ways to deal with the problem.It is precisely because the same concept has different understandings in administrative law and criminal law.Cases of statutory criminals such as illegal possession of firearms often encounter some problems in the process of processing.By rethinking the current legislation and trial practice,the following solutions are provided.Coping with ideas.Aiming at the current status of current legislation: First,raise the standards for the identification of firearms.In the case of unreasonable determination of the current standards of firearms,by reasonably raising the standards for the identification of firearms,the illegal acts of guns that did not fall within the scope of the adjustment of the criminal law will be stripped of their application in the criminal law Outside the scope;second,set up a stepped sentencing interval for "gun damage",and divide the ladder according to the value of muzzle specific kinetic energy to avoidexcessive criminal responsibility for cases where the "gun" damage is very small in order to achieve Good legal and social effects.Regarding the problems arising in the trial practice: first,re-interpret the case of statutory offenders such as the illegal possession of firearms from the perspective of legislative purposes,through the legislative purpose of the establishment of the provision,to restrict the interpretation of the behavior of the perpetrator,Reasonably guilty of minor violations through a purposeful explanation;second,emphasizing the application of multiplicity of violations in cases of statutory offenders.When judging the illegality of the conduct,independent judgment of the infringement of legal interests will not be substantially Acts that violate the criminal law are excluded from the punishment;third,adhere to the principle of unity of subjectivity and objectivity.When determining that the offender's illegal act is a crime,we must change the practice of focusing on objective behavior and ignoring subjective judgment.While conforming to the elements of the crime,it is necessary to pay attention to the value judgment of the subjective mentality of its behavior.
Keywords/Search Tags:Firearms Standard, Administrative violation, Criminal violation, Illegal possession of firearms
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