Research On The Criminal Regulation Of Crime Involving Doping In China

For a long time before the promulgation of the criminal law amendment(11),doping mainly appeared in sports events as a means of cheating,which was an act in violation of sports rules and was regulated by laws and regulations in the field of sports,but it was not treated as a crime.With the progress and development of science and technology,it is gradually abused in various fields,such as food,drugs,education and examination,smuggling,drugs,etc.the production and use of stimulants are more and more hidden,so it causes serious damage to the society.In recent years,there are numerous cases of doping violations in various major domestic and international sports events.In response to the "zero tolerance" attitude towards doping and the pursuit of sports purity and justice,China issued relevant judicial interpretations on the eve of the 2021 Tokyo Olympic Games to regulate doping related crimes,that is,the interpretation on Several Issues concerning the application of law in the trial of criminal cases of smuggling,illegal business operation and illegal use of doping(hereinafter referred to as the interpretation)issued by the Supreme People’s Court on November 12,2019,Some acts involving stimulants,such as smuggling stimulants,illegal trading of stimulants,organizing the use of stimulants for examination cheating,will be convicted and sentenced according to relevant charges.So far,the concept of "doping related crime" came into being.In order to regulate the use of stimulants and reduce its negative impact on major international and domestic sports events in the future,the amendment to the criminal law(11)added the "crime of obstructing stimulant management",and officially punished some illegal acts involving stimulants.The establishment of the crime of impairing the management of stimulants makes up for the lack of judicial interpretation.This crime can be considered to be applicable to the cases that were previously identified as vague in judicial practice.Serious illegal acts involving stimulants are criminalized because they have three characteristics in line with the crime: social harmfulness,criminal illegality and punishment.Doping related crimes will endanger the health of users,and in serious cases may bring irreversible physical injury or death,and damage social management order and sports spirit.Doping related crimes also have problems in theory and practice.The former mainly includes the vague legal interests protected by criminal law and the inconsistent nature of voluntary use of stimulants;The latter mainly refers to the possible problems in judicial identification,such as the crime and non crime involving doping,the judgment of this crime and that crime,the identification of "serious circumstances",the application of administrative punishment and criminal punishment,etc.To answer the theoretical questions,we should first analyze the relevant non criminal provisions of our country on the regulation of illegal acts involving stimulants,analyze the legislative process of stimulants in our country,and understand the state’s consideration of the necessity of doping.On this basis,it can be seen that the illegal acts involving stimulants have entered the evaluation field of criminal law because of their serious social harm,and have the legal interests protected at the level of criminal law.Under the double-layer legal interest theory system,the ultimate damage of doping related crimes should be the fair order of sports competition and the physical and mental health of athletes.This paper makes a doctrinal analysis of doping related crimes in the field of competitive sports.Firstly,it is determined that the legal interests protected by the criminal law of such crimes are the fair order of sports competition,and the physical and mental health of athletes is only the derivative protection object.Then,taking the crime of obstructing doping management as the starting point,this paper analyzes its positioning in the criminal law,and comes to the conclusion that it is the product of the risk society,which is consistent with the positive view of criminal law.The objective aspect of this crime consists of three types of behavior.According to the different degree of control over the will of the behavior object,it is divided into dominant behavior,quasi dominant behavior and helping behavior.Different types of behavior lead to differences in sentencing.Strong dominant behaviors such as organization and compulsion need to be punished more severely.The subject of crime is a general subject,excluding units.There are unreasonable places here.Setting up the unit crime of this crime has practical significance and can also maintain the system of criminal law.The double punishment system is implemented for unit crimes in order to achieve more comprehensive punishment.The subjective aspect of crime requires intention and "knowing" intention.For the understanding of normative elements such as special occasions,stimulants and athletes,it only needs to recognize the basic facts to infer the perpetrator’s subjective knowing intention,without the perpetrator’s understanding of the clear definition of these normative elements in legal norms,that is,the "knowing" here should be substantially understood.In addition,this crime can also be constituted by indirect intention.The establishment of the crime of obstructing the management of stimulants not only echoes the provisions of "those who constitute a crime shall be punished in accordance with the provisions of the criminal law" in relevant administrative regulations,makes the laws and regulations in the field of stimulants fully connected,and promotes the criminal law to keep pace with the times,but also solves some outstanding problems,such as expanding the scope of the crackdown and making the personnel who have no specific provisions in the past,such as coaches,auxiliary personnel,medical personnel and other personnel related to stimulant violations,Today,it is also subject to the sanctions of the criminal law,which further solves the problem of blaming the above-mentioned personnel.The problems of doping related crimes in practice are mainly reflected in the judicial identification between crimes.Based on the crime of obstructing the management of stimulants,there are similarities and differences in the composition of the crime with the crimes of drugs,smuggling,maltreatment of guardians,caregivers,organizing examination cheating and so on.For drug-related crimes,because the types of stimulants coincide with drugs,the differences in the types and dosage of stimulants will lead to the establishment of behavior.The imaginative joinder of offences between this crime and drug-related crime must be punished the ultimate sanction.Depending on whether the smuggled stimulants belong to the goods prohibited by the state from import and export,it may be established that this crime coincides with the crime of smuggling goods and articles prohibited by the state,or with the crime of smuggling ordinary goods and articles.In addition,if the person responsible for the guardianship and care of minors and the disabled adopts methods that seriously damage the physical and mental health of the above-mentioned persons,such as coercion,deception,organization and inducement,so that these two types of people illegally use stimulants in sports,this crime is established to coincide with the crime of maltreating the guardians and caregivers.We should be cautious about the identification of organizational behavior as the crime of abusing guardians and caregivers.We should try our best to regulate organizational behavior with the crime of hindering doping management.Only when it does not meet the crime can it be identified as the crime of abuse.There are two opposite views on the characterization of voluntary use of stimulants,namely,the theory of joint crime and the theory of non crime of self injuring behavior.The author believes that this act should not be criminalized.Firstly,it conforms to the nature of "self injuring act",which is not within the scope of criminal law regulation.Secondly,under the theory of joint crime,neither the theory of accomplice subordination nor the theory of accomplice independence can provide sufficient reasons for the criminalization of the act.Also,not criminalizing it conforms to the provisions of the principle of proportionality.And because the front-end law adopts the imputation principle of strict liability for this behavior,and the punishment is enough to deter violators,there is no need to adopt criminal law for regulation,which is also the embodiment of the modesty of criminal law.The "serious circumstances" of this crime can be refined with reference to the provisions of relevant administrative laws.Finally,through the reference of extraterritorial judicial practice experience,in order to improve China’s judicial governance.The comparative study shows that most European countries adopt the criminal law model to regulate the abuse of stimulants;There are also countries that adopt the combination of criminal code and subsidiary criminal law or adopt the introduction of special criminal law bills to combat doping abuse;The purpose is to ensure the physical health of athletes and the fair competition system.The focus of the crackdown is on the acts of inducement,coercion,instigation,deception and organization with stimulants as the object.In particular,the "differentiated treatment" adopted by Germany provides a new idea for China to realize the relative fairness of punishment.In the future,China’s criminal law governance of doping crimes needs to first further improve China’s doping legal governance system,do a good job in the connection between doping governance and execution,and more reflect the principles of execution boundary,strict responsibility and proportion in the governance work.Finally,we should strengthen the supervision measures of doping,While consolidating and strengthening domestic supervision,we should strengthen international exchanges and cooperation and pay attention to the protection of human rights.