非法持有枪支罪中违法性认识的认定

The Recognition of Illegal Possession of Firearms in Violation of the Law

由于新的枪支鉴定标准大幅度降低了枪支的入刑门槛,导致许多被告人所持的是"玩具枪""仿真枪"都被鉴定为枪支,进而以非法持有枪支罪定罪处罚。这些案件引起了民众的同情,甚至对我国刑事审判产生了失望。被告人因不知相关枪支鉴定前置性法规的存在,因而误以为自己持有的不是枪支,应当属于违法性认识错误。违法性认识错误与事实错误不同,其针对的不是故意的成立,而是责任的有无以及程度的大小。非法持有枪支罪的成立要求行为人认识到其持有的是枪支。如果被告人对枪支的法律性质产生错误认识,并且该认识错误不可避免时可以阻却责任。认定违法性认识错误的不可避免性,应当站在行为人当时的情况,以社会一般人的认识水平进行判断。

Because the new appraisal standard gun drastically reduces the threshold of guns into the punishment, causing many of the de-fendant is held by the ＂toy gun＂, “ imitation guns” were identified as guns, and in possession of a gun crime convicted and punished.These cases have aroused public sympathy and even disappointed the criminal trial in China. The defendant, who was not aware of the existence of the preexisting laws of gun identification,mistakenly believed that he was not holding a gun,and that he should be mistaken in violation of law. Contrary to factual error, it is not intended to be intentional,but to the extent and extent of responsibility. The creation of illegal gun crimes requires the actor to recognize that he has a gun. If the defendant misperceptions about the legal nature of the gun, it can be prevented if the error is inevitable. The inescapability of the identification of wrongful cognition should be judged in the context of the people ’ s knowledge ofthe society.