Study On The Difficult Problem Of Judicial Determination Of Drug Transportation Crime

At present,there are still some difficult problems in the judicial identification of the crime of transporting drugs,such as the presumption of "knowing",the connotation of "transporting" and the division of the standard of unaccomplished attempt,which need to be further studied.After a relatively sufficient demonstration,it is considered that the cognition degree of "knowing" in the subjective aspect of this crime only needs to recognize that the transportation object is drugs,not the specific type of drugs,but that the transportation object belongs to some kind of contraband,which does not constitute this crime.For the presumption of "knowing well",we should combine the advantages of "subjective theory" and "objective theory" and judge by "compromise theory".In the determination of this crime,the purpose of the crime should be regarded as the necessary condition for the establishment of this crime.The object of the crime is wrong,should be combined with the criminal law subjective and objective consistent principle to identify;As for the connotation of "transportation" in the objective aspect of this crime,it is considered that the distance of transportation space is not the key factor affecting the establishment of this crime,as long as this spatial displacement has the function of promoting the circulation and diffusion of drugs,it is the "transportation" of this crime.On the question of crime and non-crime,the boundary between this crime and the transport of legal drugs can be distinguished from the subject of transport,the purpose and use of transport.On the boundary between this offence and a general offence,it is considered that if the purpose of transporting drugs is to transport even a small amount of drugs,it constitutes this offence and is not a general offence.It is generally illegal for drug users to transport drugs intended only for their own consumption.For the relevant enterprises and units without going through relevant procedures to transport drugs with various uses such as morphine,the key judgment is whether they have the purpose of flowing into illegal channels,and then judge the nature of their behavior.On the distinction between this crime and that crime,the key lies in the judgment of the purpose of the crime,which can be linked to the identity of the actor,the performance of the specific transportation behavior,the role played in the criminal link and so on to comprehensively identify;Compared with other theories,it is considered that "the theory of transport" not only conforms to China’s criminal policy of severely punishing drug crimes,but also satisfies the determination of the crime of transport under different modes of transport,so it is the most suitable.As for the division of preparation and execution of this crime,the key lies in the identification of "proceeding",which should adopt the view of "compromise theory",and first examine from the overall criminal plan of the perpetrator,and only when "the act is in imminent danger of infringing legal interests" can it be identified as the "proceeding" of this crime.