On The Accomplished Standard Of The Crime Of Drug Trafficking

In recent years,drug crimes in the world have become more and more serious.Some countries have even implemented drug legalization,new drugs emerge in an unceasing stream,and continue to flow into domestic,drug trafficking cases remain high rate.The new situation in the territory of drug trafficking caused high pressure to the work of drug control in our country,therefore our country adopted the policy of "strike hard" crackdown on drug trafficking crime,make better effect on drug control.However,the pursuit of "crack down" in policy cannot ignore the function of human rights guarantee of criminal law.Due to the fact that criminal law and judicial interpretations in our country do not stipulate when the crime of drug trafficking was completed,and drug trafficking trade presented the characteristics of modes of diversity,the highly concealed and anti-investigation,difficult in practice to solve case investigation,drug crimes solved by using the way of secret intervention situation happen from time to tome.The influence of these many factors makes the realization standard of this crime not uniform in practice.By referring to judicial cases and relevant literature,it can be found that there are various criteria for the accomplished identification of drug trafficking crime,which are mainly "buy or sell theory","contract theory","transaction theory" and "delivery theory".Different accomplished standard lead to the difference in the establishment of this crime and the difference in the accomplished time.The imprecision of conviction and sentencing of this crime greatly affects the effective play of punishment and protection,education and prevention functions of criminal law.Therefore,it is necessary to accurately determine the accomplished standard of this crime in order to achieve the balance between punishing crime and protecting human rights.The premise of solving the problem of the determination of the accomplished standard of drug trafficking crime is to analyze the theory of accomplished crime.Due to the controversy of the theory of accomplished crime,different criteria of accomplished crime of drug trafficking have been produced.Compared with the theory of the occurrence of the result of crime and the realization of the purpose of crime,there are some problems,such as the ambiguous meaning of "result of crime",the uncertain "purpose of crime" and the wrong choice of position.The theory of complete constitutive requirements and the theory of infringement of legal interests are obviously more advantageous.The theory of complete constitutive requirements can cover all crimes and reflect the problem in form,while the theory of infringement of legal interests reveals the accomplished nature of crimes in essence.Therefore,the combination of the two theories is more comprehensive as the theory of accomplished crimes,which defines accomplished crimes as "all constitutive requirements of complete formal behaviors that actually infringe on the interests of protection laws in essence".According to different types of crimes,Analyze the benefit of specific crime protection law to determine the criterion of crime accomplishment.Through the theoretical analysis of the accomplished crime,the identification of the accomplished standard of drug trafficking crime rests on the analysis and determination of the three elements of the crime: The first is the law benefit of the crime of drug trafficking.Compared with the public health theory and the national drug management system theory,the non-illegal circulation of drugs can reflect the criminal law purpose of the crime,guide the determination of the content of the constituent elements,distinguish the illegality of each crime,and effectively exert the regulation and interpretation function of the legal interest.The second is the interpretation of the meaning of "trafficking",from the literal meaning,criminal law system,criminal law purposes and other aspects of "trafficking" does not include drug trafficking intention and purchase of drugs,"trafficking" refers to the paid illegal transfer of drugs,including first buy and then sell and simply sell.The third is the crime type of drug trafficking crime.Analysis according to the general theory of the type of crime,the crime of drug trafficking should belong to the immediate behavior of the behavior crime,so the crime is established and completed when the implementation of the act begins.It can be determined that the standard of the crime of trafficking in drugs is the theory of delivery,which causes the illegal circulation of drugs at the time of delivery,infringes upon the protection law of the crime.Moreover,the theory of delivery is not only in line with the policy of "tough" drug control,but also an effective reflection of the criminal policy of "tempering justice with mercy" in our country.Delivery theory requires the doer to lose control of the drug,but does not require the buyer to have stable control of the drug,which can be divided into face-to-face delivery and person-to-person separated delivery.It is also necessary to pay attention to the specific identification of the crime form in special circumstances such as buying drugs for the purpose of selling,selling fake drugs,not completing the transaction due to disagreement,temptation detection and delivery under control.