“以贩养吸”型毒品犯罪的性质与数量的认定

On the Nature and the Quantity Determination in the Crimes of Taking Drugs through Drug Trafficking

"以贩养吸"是指吸毒者通过贩卖少量毒品获得利润作为其吸毒经济来源的毒品犯罪类型。贩卖毒品的核心是出卖。"以贩养吸"人员运输毒品的,不宜以贩卖毒品罪论处,但可能成立运输毒品罪或者非法持有毒品罪。从"以贩养吸"人员的住所、车辆等查获毒品,数量较大的,不宜以贩卖毒品罪论处,原则上应当以非法持有毒品罪论处。从"以贩养吸"人员身边或者其住处查获的毒品与贩卖的毒品数量之和明显少于其购买的毒品数量的,对去向不明的毒品,应当坚持"存疑时有利于被告人"原则,不宜以贩卖毒品罪论处,但可以就其被查获的毒品成立非法持有毒品罪。即便认同有关司法解释和司法实践所采取的事实推定方法,也应当严格限制适用范围,以免轻罪重判。

Crimes of taking drugs through drug trafficking, which revolves around the drug deals, means that drug users obtain profits by selling a small amount of drugs. If the criminal transports drugs, the crime of drug traf- ticking is not applicable, but the crime of transporting or illegally possessing drugs. If a considerable amount of drugs are found from the criminal＇s residence or vehicle, again the crime of drug trafficking is not suitable, but the crime of illegally possessing drugs. And if the quantity of drug found around the criminal or from his residence, to- gether with the amount he sells, is significantly less than the quantity the criminal purchases, we should apply the principle of ＂Any doubt is beneficial to the defendant＂ to the part of missing drugs, so the crime of illegally posses- sing drugs is a good choice. Besides, although the presumption method has been adopted in the judicial explanation and practice, we should strictly limit the scope of its application to avoid misdemeanor heavy sentences.