论贩卖毒品罪既遂标准的模糊化认定

On the Fuzzification of the Standard of the Accomplished Offense of Drug Trafficking

对于贩卖毒品罪既遂标准的把握,司法实务界与刑法理论界一直争论不休。司法人员在面对把握不准的停止形态认定时,倾向于将其认定为犯罪既遂,而有学者认为这与刑法既遂理论相矛盾。关于贩卖毒品罪既遂与未遂间关系,可以适当予以模糊。因为贩卖毒品行为本身具有极强的隐蔽性,而且在法教义学视角,犯罪未遂与犯罪既遂的区别仅在于违法性程度上的不同。在考虑贩卖毒品罪的量刑问题时,只需在认定其犯罪成立的基础上,对其结果不法予以考量即可。

Judicial practice and the criminal law theory community have been arguing over the standard of accomplished offense of drug trafficking. Judicial personnel tend to identify them as crimes in the face of undetermined form of uncompleted crimes, and some scholars believe that this contradicts the theory of criminal law. The relationship between the accomplished offense and the attempted offense of drug trafficking can be appropriately blurred. The reason lies in the specific concealment of the behavior itself, and in the perspective of jurisprudence, the difference between the attempted offense and the accomplished offense is only the difference in the degree of illegality. When considering the sentencing problem of drug trafficking, it is necessary to identify the establishment of the crime and the degree of result illegality.