持有型犯罪主观罪过辨析

A Discrimination of Subjective Culpability in the Crime of Illegal Holding

:程序上起诉机关对持有型犯罪主观罪过举证责任的免除并不意味着实体上主观罪过不再是该类犯罪的构成要件。只要我们坚持罪过责任原则 ,我们就必须承认主观罪过是持有型犯罪的主观构成要件。罪过 ,此时最大的意义在于被告人可以此进行无罪辩护。该类犯罪的主观罪过 ,既可以由直接故意构成 ,也可以由间接故意构成。该类犯罪故意的成立并不必然以对持有物的“明知”

The exemption from evidential burden for subjective culpability in the crime of illegal holding by the prosecutive organ in legal procedure does not mean that in substance subjective culpability is not one of the essential elements for such a crime. So long as we abide by the culpable principle, we must admit that subjective offence is an important element for the crime of illegal holding and the accused can plead the condition itself as the reason for his innocence. The subjective culpability in such a crime can be an offence committed from direct intention or indirect intention. A tenable intentional offence of such a crime is not always on the premise of the accused's “deliberate” holding.