贩卖毒品罪认定中的几个争议问题

On Several Controversial Issues in the Determination of the Crime of Drug Trafficking

贩卖毒品罪中,贩卖行为的本质是以毒品作为支付手段的对价交易。在为吸毒者代购毒品的场合,代购者即便出于牟利目的,事实上赚取的是介绍费,不宜将代购行为认定为贩卖毒品罪的实行行为。贩卖毒品罪属于行为犯,司法实践宜以毒品是否进入"实际交易状态"作为认定犯罪既遂的标准。当前,司法实践对于贩卖行为的认定大量采取推定方式,司法机关在处理该类案件时,要特别注意给被告人充分反证的机会。

The crime of drug trafficking refers to the equivalent transactions where uses drug as a means of payment. When purchasing drugs for drug addicts, The person affording shopping service, who is even for profit-making purposes, should not be identified to be drug trafficking, owe to he just earns a small amount of referral fee. The crime of drug trafficking belongs to a kind of act crimes, therefore once the drugs are into the stage of actual transaction, we could recognize it as accomplish- ment of the crime. In current judicial practice, presumption is extensively adopted for identification of trafficking drug crime. Presumption is not definitely inaccurate, so the court should provide enough opportunity for the defender to disprove. Additionally, the judge should not apply capital punishment for such case as possible as he could.