非法持有毒品罪未遂时点认定规则探究

A Probe into the Rules for the Determination of the Time-point in the Criminal Attempt of Illegal Possession of Drugs

对非法持有毒品罪未遂状态着手及犯罪得逞这两个关键时点的把握,关乎本罪刑事不法的可罚性起点及刑事政策的指向。目前司法实践在此二时点认定上呈现出明显的前置倾向。在着手时点的把握上,纯粹的客观说已失去解释力;通过印象说的提倡,实践中将非法持有毒品罪着手时点前置的做法得以在顺承从严打击毒品犯罪政策背景和毒品交易样态迭代的同时,获得刑法教义学的回应。实践中对本罪犯罪得逞时点的前置倾向则缺乏合理性:非法持有毒品罪的既遂要求行为人已经实现对毒品的自由支配;应在坚持实质解释的立场上,对本罪的得逞时点进行一定的限缩。

The grasp of the two key time-points of the attempted crime and the accomplished crime of illegal possession of drugs is related to the punishable starting point of criminal illegality and the direction of the criminal policy.At present,judicial practice shows obvious prepositive predisposition in the identification of these two time-points.The pure objective theory has lost its explanatory power in the start of crime committing.Through the advocation of impression theory,the practice of prepositive predisposition in the start of crime committing can be responded by the criminal law doctrine under the background of the policy of strictly cracking down on drug crimes and the continuous change of the pattern of drug trade.In practice,the predisposition to the success of this crime is not reasonable:the accomplished crime of illegal possession of drugs requires that the doer has realized the free control of drugs.On the standpoint of adhering to the essential explanation,we should limit the successful time of this crime to some extent.