The Research On The Discretionary Action Of Sentencing Of Drug Smuggling，trafficking, Transport And Manufacture Crimes

Opium has a close relationship with the beginning of semi-feudal society of China, andin the hearts of Chinese people, drugs is the main reason which prompts the government ofQing dynasty in the late20thcentury to forfeit its sovereignty and humiliate the authority ofchina. Until now, people still have a psychology of fear when talking about drugs. Chinesegovernment takes a "zero tolerance" attitude to drug crimes, manifested on the penal settingsystem for suppressing the production and circulation of drugs, and multiple levels ofstatutory punishment and capital punishment which direct to the core crimes, such assmuggling, and drug trafficking, etc. On this basis, the judicial orientation of heavy penaltiesleaves the traces of fear for that people is hurt by historical trauma and drug abuse. In view ofthis, what should be paid great concerns is to define the discretion of punishment rationalitybased on the principle of sentence for a balance.This paper is divided into six parts: a total of forty thousand wordsPart one: Summarize the constitutional features and the statutory sentence configurationof smuggling, trafficking, transporting and manufacturing stipulated in current criminal law,induce the penalty configuration and the features of the applied heavy penalties and simplyintroduce the present situation of the applied penalties in trial practices.Part two: Analyze the impacts, quantity and purity of drugs on sentencing. Firstly,different types of drugs have different degrees of harm on drug abusers, the toxicity degreesof different types of drugs can be judged by the conversion formula deduced fromexperiments, and the conversion ratio of additional administrated drugs, which defined by theState Food and Drug Administration can ensure objective and scientific sentencing; secondly,the quantity of drugs is the most important factor in determining the most important factorin determining the perniciousness of drug crimes to society, and currently, drug quantity is themain criterion for court on determining the starting point for sentencing and benchmarkpunishment; Finally, a dialectical view should be hold on to what extent is the purity of drugsimpact on sentencing.Part three: Analyze the impacts of drug smuggling, trafficking, transporting andmanufacturing attempted on sentencing. Firstly, a clear definition about "trafficking" isdetermined, and put forward the view "enter into the delivery link" directing at the accomplished standards of drug trafficking crime, and then, argues the problem that how toreasonably calculate the quantity of drugs in one case when some of the drugs have enteredinto the delivery link while the others do not. Come up with a view that the magnitude of alighter or mitigated penalty for attempted crime can be regarded as a criterion of rationalsentencing; Secondly, regard the crime of attempted drug trafficking as a reference todetermine the attempted standards of the other three types; Finally, the proposition is putforward that the objective perniciousness of the action of the perpetrator should be regardedas the core of rational sentencing for the crime of attempted drug smuggling, trafficking,transporting and manufacturing.Part four: Analyze the sentencing to drug smuggling, trafficking, transporting andmanufacturing accomplice. Firstly, according to the responsibility of hired drug transportingperpetrator, a proposition is advocated that under normal conditions, a lighter punishmentshould be sentenced for this kind of accomplice; And in the case that more than oneperpetrator hired to transport drugs, the unique condition that " the perpetrators hired totransport drugs knows that they transport drugs for the same employer," cannot be regardedthe standard of defining the perpetrators as accomplice, and quantity of drugs should not beadded up. Secondly, on the problem that how to define the drug quantity of the middleman, ifthe clear drug quantity of the middleman in the process of introduction is investigated, drugquantity can be calculated according to the investigated quantity, but if actual drug quantity isdeliberately covered, and the drug quantity should be calculated according to the actual drugquantity in the transaction.Part five: Analyze the sentencing of the offender under temptation investigation. Firstly,deny the legitimacy of temptation investigation; secondly, for the "opportunity provided type"offender to perpetration of a crime, an attempted crime should be sentenced to his/her; finally,the investigation of those who commit crimes under the "quantitative" temptation, thecalculation of the drug quantity should exclude the scope of the amounts that are tempted.Part six: Analyze the influences of recidivism on sentencing. Firstly, briefly introduce therelation between drug recidivism and recidivism. Secondly, when recidivism and recidivismare coincided, follow the rule that “light penalty is superior to the heavy penalty”, and the twocompeting claims when should press the rule, and a concrete arguments is needed.