非法持有枪支罪的司法认定

Judicial Conviction on the Crime of Illegally Holding Firearms

法秩序统一性原则意味着法秩序应当向公民设置明确的、不自相矛盾的行为规范,但不要求法律术语的统一性,也不妨碍刑法在不同于行政法律规范意义上界定枪支概念。基于法益保护的目的与抽象危险犯的学理,只能将具有显著杀伤力和高度危险性的枪形物认定为非法持有枪支罪意义上的枪支。因此,赵春华的行为不符合非法持有枪支罪的客观构成要件,也难以认定其具有犯罪故意。即便从公安部现行的枪支认定标准出发,也应当肯定赵春华陷入了无法避免的违法性认识错误,不构成犯罪。

The principle of unity of law order demands that a legal system should provide explicit and self-consistent code of conduct to citizens, and this does not necessarily require the unity of legal terms and prohibit criminal law from defining ＂gun＂ in a sense that is different from administrative laws. Based on the purpose of legal interest protection and the offender of abstract danger theory, only highly dangerous firearms with significant lethality can be considered as a ＂gun＂ in the crime of illegal gun possession. Therefore, the conduct of Zhao Chunhua does not satisfy the elements of the crime from an objective perspective, and Zhao also lacks criminal intent from a subjective perspective. Even judging by the standard in accordance with the Ministry of Public Security regulations, it should be considered that Zhao is in a state of inevitable mistake on law and therefore her conduct does not constitute a crime.