贩卖毒品罪中“贩卖”的含义探析——兼论两种特殊涉毒行为的定性

An Analysis of the Meaning of "Trafficking" in the Crime of Drug Trafficking Qualitative: The Theory of Two Kinds of Special Drug- Related Behavior

贩卖毒品是指以毒品为交易对价获取利益,有偿转让毒品所有权,使毒品予以流通的行为。其基本特征为获取利益性(有偿性)、流通性、促进所有权转移等属性;牟利目的不是行为人主观方面的必要要素,倘若能够肯定其牟利目的,则直接以贩卖毒品罪定罪;其交易对价不以物质性利益为限,包括非物质性利益;其基本行为形式为买进后卖出或单纯的出卖行为,以贩卖为目的的收买行为应以预备行为对待。利用毒品进行性交易或行贿时应以贩卖毒品罪定罪;互易毒品时则以行为人身份的不同而认定为贩卖毒品罪、非法持有毒品罪或无罪。

Drug trafficking refers to the use of drugs for the benefit of the price of the transaction, paid for the transfer of drug ownership, so that it results in the distribution of drug trafficking. Its basic characteristics are to obtain benefits （ paid）, circulation, promotion of ownership transfer, etc. The purpose is not the essential elements of the subjective aspect of the behavior. If it can be sure that the purpose of profit is to sell drugs, the price is not limited to material interests, including non material interests. The basic behavior of the form is to buy or sell for the purpose of buying behavior prepared to treat. The use of drugs for sex or bribery should be classified into the crime of drug trafficking conviction and reciprocity of drugs is by their different behavior identity and identified for the crime of drug trafficking or innocence.