毒品犯罪若干刑罚问题新议——以大陆刑法理论为研究视角

New Ideas on the Issues of Punishment on Drug Crimes——in the Perspective of Continental Criminal Law Theory

本文以大陆刑法理论为研究依据,对毒品犯罪的若干刑罚现象作了分析并认为,没收毒资、制毒工具等是大陆刑法对物的保安处分;对不满16周岁和患有精神病的犯罪嫌疑人进行政府收容教养或强制治疗是对人的保安处分措施;《刑法》第356条是毒品犯罪的常习犯规定,当该规定与《刑法》第65条发生实体竞合时,可以合并适用两个条款;以“顶风作案”等藉口处罚行为人,在大陆刑法理论中找不到任何依据,不应予以提倡;毒品数量应当是毒品的纯量。

Taking the continental criminal law theory as the study basis,this essay analyzes the several punishment forms on drug crime.It is held that confiscation of drug income and drug-making instruments belongs to the security measures on objects in continental criminal law;the government exercised housing and reeducating young offenders under the age of 16 and suspects with mental diseases belongs to the security measures on persons.Article 356 of the Criminal Law of PRC regulates those drug criminals who take committing drug crime as profession.When substantial concurrence occurs between regulations of Article 356 and Article 65,these two articles may be applied simultaneously.Accordingly,in the continental criminal law theory,no legal basis can be found to impose punishment on those who commit crimes in defiance of a law-enforcement campaign and thus practice shall not be advocated.Furthermore,the quantity of drug shall be counted by its pure quantity.