持有型犯罪立法的检讨及完善对策

Research on review and improvement of possession crime

持有型犯罪本质上是对公共安全的危害,对其犯罪化的实质根据在于行为对不特定多数人的人身、财产安全构成了威胁。当前,持有型犯罪客体泛化、规制不够全面、违法与犯罪的界限模糊,不利于充分发挥前刑法规范的行为调整机能,不利于刑法谦抑原则的实现,不利于公民权利的保护。重新定位持有型犯罪的法益,将其法益严格限定为公共安全;将持有型犯罪的犯罪对象限定为行政法律法规明确规定的禁止流通而非限制流通的管制物品;犯罪行为必须是二次违法,同样的行为必须在行政法中被明确禁止。

The crime of possession is essentially a danger to public security, and its criminalization is based on the fact that the behavior poses a threat to the personal and property security of the unspecified majority. At present, the generaliza-tion of the object of holding crime, the lack of comprehensive regulation, the blurred boundaries between violation of law and crime are not conducive to giving full play to the function of behavior adjustment of the former criminal law norms, the reali-zation of the principle of modesty in criminal law, and the protection of civil rights. We should redefine the legal interests of holding crimes and strictly limit their legal interests to public security;we should limit the criminal objects of holding crimes to the controlled articles which are prohibited from circulation but not restricted by administrative laws and regulations;criminal acts must be secondary violations, and the same acts must be explicitly prohibited in administrative law.