互易毒品行为的刑法性质评析

Review of the Criminal Nature of Drug Exchange

贩卖毒品罪中的卖出行为本质上以买卖关系为基础,互易毒品行为与之存在着性质差别。有偿性交付毒品和买卖毒品是不能划等号的,有偿性只是贩卖毒品的一个特征,而不是买卖行为的独自属性。将互易毒品行为认定为贩卖行为在逻辑上存在着大前提的判断错误。以毒品代物清偿同样不属于贩卖毒品。一概视为贩卖毒品罪违背了罪刑法定原则。只有通过完善立法,将提供毒品行为立法入罪,才能从根本上解决问题。

Essentially, the act of drug - selling in the crime concerning drug trafficking is a form of trade, which is much different from the notion of drug exchange in the nature. Therefore, the paid transfer/exchange of drug is not equal to drug trafficking. Repayment stands as one of characteristics possessed by drug trafficking, but not as an independent property of trade. It would be an illogical judgment under a wrong major premise, given that drug transfer/exchange is regarded as a form of drug selling. Hence, the payment for consideration in form of drug does not constitute the crime of drug trafficking. Otherwise, it would be a hasty generalization that is against the principle of crime - and - punishment legality. Only through legislation improvement in the area of drug exchange could this issue be fundamentally resolved.