非法持有枪支罪中的枪支认定

Identification of Guns in the Crime of Illegal Possession of Guns

枪支类犯罪具有法益侵害的严重性,非法持有枪支罪中枪支认定的程度是具有法益侵害的关键因素。枪支认定的争议问题主要存在于规范与公众认知不一致、规则应用不协调、国外有益理论不适用三个层面,实务界和理论界现有的几种观点存在着片面解释的困境。以法解释学为基础,在内部视角下,枪支认定除自身具有杀伤性特征,还应在威慑公众和不法取得的语境下检视,并结合使用者的个人情况和枪支用途;外部视角则考虑法规范目的、一般公众认知、法律条文协调等因素。综合运用违法性认识错误理论,立足法教义学全面分析枪支的实质危害性,适时完善本罪中枪支认定的法律规范。

Gun related crimes have the severity of legal interest infringement,and the degree of recognition of firearms in the crime of illegal possession of firearms is a key factor in legal interest infringement.The controversial issue of gun identification mainly exists at three levels:inconsistency between norms and public awareness,inconsistent application of rules,and inapplicability of beneficial foreign theories.There is a dilemma of one-sided interpretation of several existing viewpoints in the practical and theoretical fields.Based on the hermeneutics of law,from an internal perspective,the identification of guns should be viewed in the context of deterrence against the public and illegal acquisition,in addition to their own destructive characteristics,and in combination with the user's personal situation and the use of guns;The external perspective considers factors such as the purpose of legal norms,general public awareness,and coordination of legal provisions.By comprehensively applying the theory of erroneous understanding of illegality and based on legal doctrine,we comprehensively analyze the substantive harm of firearms,and timely improve the legal norms for the determination of firearms in this crime.