The Research Of The Judicial Identification Of Drug Crime Of Control Delivery

Controlled delivery was written in the Criminal Procedure Law of China in 2013.The provisions of the controlled delivery were less regulated by comparing with the wider applied of the controlled delivery in the last 8 years,since it was written in the Criminal Procedure.It is difficult for judicial worker to identify the criminal forms and sentencing in the process of judicial identification.This dissertation starts from three cases of drug crimes under controlled delivery,which leads to three difficult problems in the application of the controlled delivery.The first problem is that there is the confusion used in the concept of controlled delivery and inductive investigation.This paper mainly consider the concept of the controlled delivery and comparing this concept between the domestic and foreign.It found the meaning of the controlled delivery are wider in China comparing with the foreign countries.The way of investigation,afford opportunity,is applied in China while is not used in most of other countries.There are many theories about the relationship of controlled delivery and inductive investigation,such as equivalent theory and subordinate theory.The subordinate theory can be better to explain the relationship of them.This theory is in the line with judicial practice and is conducive to the implementation of drug criminal investigation.The second part is the analysis of the criminal forms of drug crimes under the concept of controlled delivery.It is normal identified as the crime accomplishment in the judicial practice.The theory of the attempt crime are conformed to the law and the logical no matter from the views of the practical and theoretical.One the basis of the attempt crime,this paper try to define the standards of crime accomplishment of drug crimes under the controlled delivery.Management order protection theory is negated while affirming the theory of protection of legal interests of body health in this paper."Actual delivery" is regarded as the basic judgment standard of attempted or unaccomplished of drug crime.The final part of the dissertation is the sentencing of drug crime.The drug crime under the controlled delivery is discretionary sentencing circumstances from through the empirical analysis.From the perspective of the protection of human rights,it is impossible that the crime occurs without the controlled delivery by comparing the controlled delivery and normal investigation method.This kind of “possible” produced by the controlled delivery should not be assumed by the defendant.In addition,controlled delivery has more affection on the drug dealing.Therefore,there should be compensation on the criminal who are applied to the controlled delivery.On the other side,there is the parallel comparison from the controlled delivery and inductive investigation,which found that the inductive investigation is a legal "should be light".Although manipulative ability of the controlled delivery is weaker than the temptation investigation,the comparison between of them should not be the difference of "having or not",but the comparison of "severity".