A Research On The Application Of Criminal Law To Purity Of Drugs

With the spread of drugs in the whole world,drug-related crimes have become a worldwide problem.All countries（regions） in the world take the type and quantity of drugs as the basis for the conviction and sentencing of drug-related crimes,but in terms of the purity of drugs,different countries（regions） take different positions based on their own conditions.As far as China is concerned,the second paragraph of Article 357 of the current Criminal Law clearly stipulates that “the quantity of narcotic drugs shall not be converted according to its purity”.However,the application of this provision to judicial practices has brought some problems which are contradictory with the basic spirit of Criminal Law.One profound manifestation is that it can not accurately reflect the social harmfulness of drugs,resulting in disproportionate sentencing in cases involving large amount but low purity of drugs,and inadaptability the imbalance of liability and punishment.In order to make the drug purity play its due role in the determination of drug-related crimes in China,this paper discusses the application of drug purity by the following parts:The first part is the general status quo of regulations regarding drug purity and drug-related crimes at home and abroad.Drug purity refers to the ratio of a certain drug component to the total amount of the drug.In the context of drugs,“purity” and “content”have the same meaning.According to the researches on foreign and regional legislation,the determination of drug-related crimes in the United States will not take purity into account unless taking purity into account could result in heavier penalty;in the United Kingdom,the penalty is determined after certain drugs are converted into 100% purity;in China’s Macao Special Administrative Region,the purity may be considered when determining the specific number of “small quantity” of drug being trafficked.Compared with the China’s Mainland,the punishment of drug-related crimes in the United Kingdom,the United States and China’s Macao Special Administrative Region is relatively lighter in general.Although these jurisdictions are taking different attitudes,the results of sentencing in the same situation are not very different.Since the founding of the new China,the purity standard of heroin has been set up,but it has been somehow abolished.After the Criminal Law of 1997 clearly stipulated the “not to be converted by purity” standard,the subsequent practices had led to the imbalance of sentencingin some cases.Subsequently,in a series of meeting minutes and judicial interpretations,it has been proposed that the purity factor should be taken into account in sentencing,but the influence of drug purity is limited to drug-related crimes that may face death penalty.The second part is about the dilemma of applying the “not to be converted by purity”standard.Starting from the effects to judicial practices,this paper discusses many malfunctions caused by the “not to be converted by purity” standard: the imbalance of sentencing leads to the substantial unfairness of drug-related criminal punishment;for drug-related crimes with relatively higher allocation of penalty,the the “verified amount”standard has the risk of aggravating the trend of severe punishment of drug-related crimes in China;the concentration of judicial resources against the middle and lower reaches of drug-related crimes leads to the deviation of targets of drug-related crimes;it stimulates criminals to make drugs of higher purity,indirectly promoting the development of drug production technology.The third part introduces the theoretical basis of taking purity into account when determining drug-related crimes in China.Starting from criminal policies,the “not to be converted by purity” standard is a concrete embodiment of the “strictly control drugs” policy,however,it is necessary to adjust the legislative and judicial limits of that criminal policy.The introduction of the consideration of drug purity aims to more accurately calculate the amount of drugs,reflect the extent of social harm,and then achieve the goal of reasonable conviction and balanced sentencing,which can be compatible with the criminal policy of “strictly control drugs”.Starting from the theory of criminal law,the purity of drugs,which is determined by the chemical properties of drugs,is an important manifestation of the social harmfulness of drug-related crimes;it is a factor that shall be considered when ascertaining the factual basis in drug-related crimes,and it is also the internal requirement of the principle of suiting responsibility and punishment properly and the value of taking efficiency and justice into account simultaneously.The fourth part is about the application of drug purity when determining drug-related crimes in China.In the conviction stage,the purity of drugs shall be considered as an important factor,the specific standard of “very low purity” shall be set up,and other circumstances shall be taken into consideration,and when the purity of drugs and harmfulness are not that profound,we shall consider the not-guilty approach.In the sentencing stage,the quantity of drugs shall be calculated based on their converted figure,that is,the quantity ofdrugs involved shall be calculated after being multiplied by their purity,with an aim to achieve the balance of liability and punishment.In addition,there are two difficulties in the application of the purity conversion approach: first,some new types of mixed drugs should be determined according to their toxicity and content,and the quantity of drugs should be calculated according to the “conversion table of illegal drugs” after the purity conversion;second,with the change of the types and quantity of drug-related crimes,combined with the fact that methamphetamine has become the “number one drug”,the conversion standard of the “conversion table of illegal drugs” shall be changed to methamphetamine.