| Article 128 of the Criminal Law of the People’s Republic of China(hereinafter referred to as "Criminal Law")adopts the form of a blank offence for the crime of illegal possession of firearms.Previously,the academia and practice have not had much in-depth study on this crime,however,in judicial practice,there are many cases where the perpetrators hold imitation guns or toy guns for the purpose of making a living or collection,and are sentenced to the crime of illegal possession of firearms after being investigated by the police and judicial authorities,which has caused public opinion to be hotly debated,and the public also expresses their incomprehension and doubts about it.For the handling of such cases,the academic circles have launched an in-depth discussion and put forward many suggestions and opinions from the legal and practical perspectives.In order to enhance the reasoning of the practical treatment and better play the role of legal interpretation,the importance of studying the crime of illegal possession of firearms is self-evident,and this important crime is also considered to be an important guarantee for maintaining social order and promoting the development of the rule of law and social security.In 2016,with the case of Zhao Chunhua’s illegal possession of firearms,the degree of importance of this crime has attracted attention and hot discussion.The crime of illegal possession of firearms has encountered four major controversies in practice: first,the controversy about the act of "possession",how to evaluate the act of "possession" of the perpetrator in the case of "fake gun and real crime";whether the act of "possession" is infringing on the legal interests;and whether the crime of illegal possession of firearms is infringing on the legal interests.The second is the controversy of "firearms" recognition standard,what is a firearm in the legal sense,whether the current standard of firearms stipulated by the Ministry of Public Security is too low,whether the court should directly identify and apply the standard of the Ministry of Public Security on firearms;the third is the controversy of the actor’s knowledge,the actor’s knowledge of "illegal possession","firearms" and the social significance of the identification;fourth is the controversy of whether the crime may be a mistake in legal understanding.Based on the contemplation of Zhao Chunhua and other cases,this paper mainly adopts the logical analysis method and case study method,starting from the level of substantive law and based on the doctrinal theory of criminal law,it thoroughly studies the four main controversial issues of illegal possession of firearms in judicial practice in China,and sorts out the problems of the object of behavior and subjective intentional determination of gun-related crimes in China.This paper is divided into four parts,as follows:The first part of the paper is about the criminal law determination of "illegal possession" in the crime of illegal possession of firearms.On the one hand,the essence of "possession" in criminal law is discussed from the factual level.Through the different types of possession in daily life,we emphasize that the essence of possession is the actor’s domination or control over the object.The nature of possession in criminal law is a kind of harmful act,as listed in the academic justice on the nature of possession.By elaborating the legislative intent of the possession crime,the rationale of the crime of illegal possession of firearms is clarified,and the understanding of "possession of firearms" in the criminal law is further elaborated from the perspective of the use of possession and the infringement of legal interests.On the other hand,the objective element of this crime is "unlawful possession" rather than "possession",therefore,further analysis of "unlawful" is needed.The "law" of the crime of illegal possession of firearms is the abstract,value and overall law,the whole legal order,and "illegal" is the normative evaluation of the act of "possession",specifically from the possession type In particular,the illegality of gun possession will be evaluated from the source of illegality in possession-type crimes.In the second part,we will discuss the criteria for the determination of "firearms" and propose a restricted interpretation.Firstly,the legal standards for the determination of firearms in China are sorted out and the relevant laws and regulations are involved;secondly,the controversies arising from the judicial application of the determination of firearms are summarized and the reasonableness of the determination based on the determination standards of the Ministry of Public Security is evaluated in concrete practice;finally,the concept of "firearms" in the crime of illegal possession of firearms is proposed to be necessary for a restricted interpretation.Finally,it is proposed that the concept of "firearms" in the crime of illegal possession of firearms needs to be interpreted in a restricted manner.The third part analyzes the subjective level of the perpetrator’s knowledge,the knowledge of "illegal possession" and the knowledge of "firearms",including the scope of knowledge and the determination of knowledge.As the normative elements of "unlawful possession" and "firearms",the perpetrator is required to recognize not only the elements themselves,but also the social significance they imply.That is to say,the "illegal possession" of the source of unknown,the purpose of possession,the social danger and the "firearms" with significant lethality will cause danger to public safety awareness.The fourth part proposes the awareness of illegality in the crime of illegal possession of firearms,clarifies the necessity of the awareness of illegality in the crime of illegal possession of firearms,summarizes the criteria for judging the possibility of the awareness of illegality put forward by Chinese criminal law scholars in theory,and proposes the criteria for judging the possibility of the awareness of illegality in the crime of illegal possession of firearms on this basis. |
