On the identification of subjective knowledge of drug crime

[Content Summary]Knowing that it is the cognitive factor of criminal intent, the subjective elements that must be possessed for the establishment of all intentional crimes. The determination of knowledge cannot rely solely on the confession or defense of the criminal suspect or defendant, but must be proved by other evidence. Knowingly to prove that knowingly is the norm, with the presumption of knowingly is the exception. The presumption of knowledge of the underlying facts must be strictly proved, should limit the interpretation of the normal link between the underlying facts and the presumed facts, and accurately apply the rebuttal of the criminal presumption.

   [Key words]Drug crime should know the proof of knowing presumption of knowing

China's criminal law insists on the unity of subjectivity and objectivity, and knowing the subjective psychological facts of the perpetrator is a prerequisite for the establishment of a crime. There are great differences in the understanding of knowing about drug crimes in the criminal law circles of our country, and knowing that it is alsoOne of the problems that have plagued the practice of criminal justice for a long time, the prosecution and the defense often engage in tit-for-tat arguments on this issue.

Presentation of 1. issues

Case 1: Case A of drug possession in luggage was a laid-off worker. After getting to know a "boss", he was hired to transport jade to Yunnan. The expenses on the road were all covered and 100 yuan was paid daily. A and the "boss" successively transported "jade" to Yunnan twice and got 2000 yuan.One day, led by the "boss", a arrived in Yunnan and joined with B. B handed a black luggage bag containing two boxes of jade bracelets to a in the hotel, and took the jade out of the bag on the spot for a to accept. A was found during the airport security check, and a large amount of heroin was seized in the interlayer of his checked luggage. The court of first instance found that A constituted the crime of transporting drugs. A refused to accept, appeal. During the second instance, the "boss" was arrested. According to his confession, A did not know about the drugs hidden in the interlayer of the luggage bag. The court of second instance sent it back for retrial on the grounds of unclear facts and insufficient evidence. During the retrial, the confession of the "boss" appeared repeatedly. He said that A should have known that the drug was being transported, but everyone did not make it clear. According to the confession of the "boss", the original court of first instance once again sentenced A to the crime of transporting drugs after receiving the suitcase, and the "boss" explored the way and made a detour. This case needs to clarify the following issues: FirstCan the presumption apply if the drug is hidden in the interlayer of the luggage bag; secondly, if the presumption can be applied, does the case conform to the basic facts of the presumption; thirdly, if the presumption conforms to the basic facts of the presumption, has the defendant made a "reasonable explanation" or "there is evidence that it is clearly deceived"?

Case 2: Defendant B in the Internet parcel case conspired with others to get in touch with employee C of a company in China in the name of contact business and smuggle drugs into China in the name of mailing samples. After the parcel was mailed to B from a certain country. On February 7 of the same year, a city customs office in the post office seized some cocaine from the menu in the package. After the defendant B contacted C and asked C to send the recipe to an address in Guangzhou City, Guangdong Province. On the 22nd of the same month, the defendant was caught on the spot after signing for the mail there. Both the defendant and the defender insisted that they did not know subjectively that the package contained drugs, and the existing evidence could not prove that the defendant was the owner or receiver of the package. Can the defendant be found guilty of drug smuggling in accordance with the existing evidence?

The constitution of crime and proof of litigation are the intersection of substantive criminal law and criminal procedure law, and the subjective element of knowingly proving and presumption is one of the important contents. The establishment of drug crimes requires the perpetrator to know that the object of smuggling, trafficking, manufacturing, transportation, and possession is drugs. The most direct way to prove the subjective mentality of the criminal suspect and the defendant is the confession of the criminal suspect and the defendant, but the perpetrator In the case of denying "knowing that it is a drug", the prosecution agency undoubtedly faces a huge risk of litigation. From 2009 to 2011, more than 30 cases of drug possession in bags in Yunnan Province were not criminalized. [1] This has also become a favorable point of contention for defense lawyers.

2. the Basic Gist of Drug Crime Knowing

   (I) what is "knowing"?

Knowing is a kind of psychological fact, from the perspective of criminal law, the subjective knowing of the actor refers to the actor's self-cognition of the nature of his own behavior, the object of the behavior, the result of the behavior and some specific facts.In China's crime theory system, knowing that it is the cognitive factor of criminal intent is the subjective element that must be possessed for the establishment of all intentional crimes. Knowledge in criminal legislation can be divided into knowledge in the general provisions of criminal law and knowledge in the specific provisions of criminal law. Article 14 of the Criminal Law of our country is the "knowingly" provision of the general provisions of the Criminal Law,The "knowledge" of the general provisions of the criminal law includes knowing that the result of endangering society is bound to occur and may occur, and is not only reflected in direct intent, but also in indirect intent.China's criminal law sub-rules also provide for a large number of "knowingly", so far involving a total of 36 articles, 41 charges.Knowing is different from knowing that, as scholars have said, knowing is a cognitive state of the perpetrator to the facts of the crime, rather than the judgment of others on the cognitive state of the perpetrator.[2]]The "knowledge" in Article 14 of the Criminal Law of our country is the actor's knowledge of the facts of his crime, while the knowledge identification is the judicial personnel's cognition of the actor's subjective cognitive state from the perspective of criminal justice, which can be realized by proving knowledge and presuming knowledge. Knowing and knowing that belong to different areas, both independent of each other, knowing is the basis of knowing that.

(II) the content of drug crime knowing

Knowing the content mainly contains two levels: one is the actor's objective composition.The knowledge of the facts of the elements, the second is the actor's knowledge of the substantive illegality of the act. The fact of the constituent elements is a combination of many constituent elements, knowing that it can be divided.For the knowledge of the constituent elements of the description and the knowledge of the constituent elements of the specification. The constituent elements of the description are a simple description of the constituent facts, clear and specific, without the need for a judge to evaluate the value, and the average person can judge the social significance and substantive illegality of the act while perceiving the objective constituent facts. Drug crime requires the perpetrator to recognize that the object of the act is a drug is the knowledge of the constituent elements of the description. The general view of criminal law theory is that,The establishment of drug crime only requires the perpetrator to recognize that it is a drug, but does not require the perpetrator to know the specific nature of the name, chemical composition and utility of the drug.[3]]Some scholars also believe that the actor's cognition of drugs should cover its essential attributes, specifically knowing the types of drugs.[4]]

This paper holds that the perpetrator can become aware as long as he realizes that the object of the act is drugs, not other contraband. First of all, with the continuous emergence of new drugs, the actor's cognitive difficulty in the substance properties of drugs has gradually increased, so that it is difficult to judge what type of drugs he is in contact. Secondly,According to Article 357 of the Criminal Law, drugs areOpium,Heroin,Methamphetamine(methamphetamine), morphine, marijuana,Cocaineas well as other narcotic and psychotropic substances that can make people addicted to narcotic drugs and psychotropic substances regulated by the state.The range of drugs is very wide,IfRequiring the perpetrator to recognize the specific type of drug will make the criminal circle of drug crime too narrow. Again, in accordance with the provisions of the criminal law, the specific type of drugs does not affect the establishment of drug crimes. Therefore, the perpetrator only needs to recognize that it is a drug, and does not need to recognize the specific type of drug, to determine the knowledge of the drug.

Determination of the extent to which (III) drug-related crimes are known

The degree of knowing refers to the degree of the actor's cognition of the facts of the objective constituent elements. The determination of the degree of knowledge is the conclusion that the judicial officer concludes by proving or presuming that the perpetrator is aware of the facts of the constituent elements. Our countryThere are three main views in criminal law theory on the determination of the degree of knowledge: first, certainty, which holds that knowledge can only be expressed as a deterministic understanding of the perpetrator, not as a possibility.[4]]. Second, the possibility says that the viewIt is advocated that no matter whether the perpetrator realizes that it is definitely a drug or that it may be a drug, it belongs to the recognition that it is a drug and does not affect the establishment of the crime.[5]]. third,According to the deterministic possibility, the view divides knowing into "knowing clearly" and "may know" according to the degree of understanding"[6]].

The actor's cognition contains a number of intermediate stages between "completely convinced" and "completely unaware. Some scholars believe that according to the degree of awareness of the actor, the knowledge can be divided into four levels of certainty (sure, true knowledge), actual knowledge (de facto knowledge), or knowledge (may know), should know (should know).[7]]Among the above four types of knowledge, "definite knowledge", "actual knowledge" and "or knowledge" are the knowledge proved by judicial personnel through evidence. If it is proved by direct evidence or indirect evidence that the perpetrator does know, actually knows or may know that the object of the act is drugs, and the evidence reaches a certain and sufficient level beyond reasonable doubt, it can be regarded as knowing.

The "should know" in the judicial interpretation and summary of drug crimes, in addition to proving knowing, there is also a presumption of knowing. In the case of the application of the presumption, the drug offender's knowledge of the facts of the constituent elements of the crime should be at least to the extent of "should know. In judicial determination, the perpetrator may know that it is a drug, but when it is difficult to determine whether it is known, the burden of proof of the prosecution cannot be removed. In the aforementioned case 1, A should at least judge that the object of transportation should be drugs based on the transportation cost, transportation route, principal information, delivery status and own experience.

 3,The Nature of "Should Know" in Judicial Interpretation

my country's judicial interpretations of drug crimes and normative documents formulated by local judicial organs use a large number of "should know", such as the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security's 2007 "Opinions on Several Issues Concerning the Application of Laws in Handling Drug Crime Cases" (hereinafter referred to as "Opinions") stipulate eight situations that "should be known. In 2008, the Supreme People's Court's "Minutes of the Symposium on the Trial of Drug Crime Cases in Some Courts across the Country" extended the number of "knowing" drugs to ten. Supreme People's Court, Supreme People's Procuratorate, Ministry of Public SecurityThe "Opinions on Several Issues Concerning the Application of Law in Criminal Cases such as Smuggling and Illegal Trading of Ephedrine Compound Preparations" provides for the subjective and knowingly identification of criminal suspects and defendants, and further takes "whether illegal acts have been committed before" as a key consideration.However, there are still many difficulties in the judicial application of subjective knowledge.

In view of the nature of "should know" in the aforementioned judicial interpretation and summary, there are mainly the following views: first, it is believed that the judicial interpretation and summary provides for the presumption of subjective knowledge.[8]]The second is that except for the first and eighth cases, it is not a presumption, but a combination of objective facts to judge that the perpetrator actually knows that he is smuggling, trafficking, transporting, or holding drugs.[9]]HereThe "should know" in the judicial interpretation has nothing to do with the "should know but not know" in the crime of negligence, and "should know" is a kind of judicial knowledge based on solving the proof problem of subjective knowledge in practice, which essentially contains the proof of knowledge and the presumption of knowledge. The eighth item of the judicial interpretation, "other evidence sufficient to prove that the defendant should know", belongs to the use of evidence to prove the knowledge;Other situations of "should know" are criminal presumptions, but relevant situationsMost of them can be used as evidence to prove subjective knowledge.The reason is: criminalPresumption is the presumption of the existence of a fact to be proved, based on the underlying fact that has been proved, based on the normal connection between the underlying fact and the fact to be proved, when the fact to be proved lacks evidence to prove it.The so-calledPresumptive knowledge means that the perpetrator can be presumed to have established knowledge as long as the existence of objective underlying facts can be proved, without the need for a specific process of inference. The circumstances listed in the judicial interpretation and minutes belong to the objective basic facts in the case. In the case of these objective basic facts, the probability that the perpetrator knows that it is a drug is greater, so it is presumed that his subjectivity is knowingly. In criminal cases, the subjective mentality of the perpetrator is more difficult to prove than the objective facts. ThereforeThe presumption of the actor's subjective constituent elements (mainly the presumption of knowledge) occupies an important proportion of the criminal presumption.

The main difference between criminal presumption and indirect proof lies in the assumption of the burden of proof, arguing that the presumption of the prosecution, as long as the prosecution proves the existence of the underlying facts, the burden of proof is inverted to the defendant.The presumption of knowing is the embodiment of criminal policy in the subjective field of crime, and it has space in the cognizance of knowing.The criminal law is inbalance between the protection of legal interests and the protection of human rights,The scope of the presumption of criminal knowledge must be strictly limited and should be limited to crimes that are extremely difficult to prove by the prosecution authorities and that the criminal policy focuses on combating. Therefore, judicial practiceWe should strictly distinguish between proof of knowledge and presumption of knowledge, insist on proof of knowledge as the norm, with presumption of knowledge as an exception, and be cautious about presumption of knowledge.

4. proof of knowingly applicable in drug offences

The traditional theory of criminal law adheres to the doctrine of responsibility, and the establishment of responsibility is based on the subjective guilt of the perpetrator, and the perpetrator must be aware of the elements of objective composition. Proof of knowing is to prove whether the actor knew the fact to be proved by the defendant's confession, witness testimony, physical evidence, documentary evidence, expert opinion and other evidence. In criminal proceedings, the prosecution bears the responsibility of proving the defendant's guilt. Whether there is knowledge or not needs to be proved by the prosecution. When it is impossible to determine whether the perpetrator knows or not, the judge should make a verdict of not guilty according to the principle that doubts are beneficial to the defendant. The majority of criminal justice knowingly identified as proof knowingly. The "definite knowledge" and "actual knowledge" in the judicial interpretation should belong to the proof of knowledge, which needs to be proved by the prosecution, and whether it is proved by direct evidence or indirect evidence, it should meet the standard of proof beyond reasonable doubt. In drug crime cases, it should also be based on proof of knowledge, accompanied by presumption of knowledge, in the case of the application of the presumption of the basic facts themselves must be used to prove.

Although drugs were found in the mailed package in the above-mentioned case 2, it does not belong to the "should know" situation stipulated in the judicial interpretation and minutes. In this case, there is no direct evidence such as the defendant's confession and witness testimony, so it is necessary to complete the proof of knowledge through indirect evidence.

In this case, the above-mentioned indirect evidence about the defendant's objective behavior can form a complete chain of evidence and realize the proof of the defendant's knowledge, and the defendant's defense cannot form a reasonable explanation. Therefore, the defendant can be found to have knowledge.

The Application of 5. Presumption of Knowledge in Drug-related Crimes

In order to alleviate the difficulty of proving litigation and reduce the difficulty of proving by the prosecution authorities, most modern countries have provided for the presumption of knowledge in their criminal law. SuchSection 251.4(2) of the United States Model Penal Code (1962) states: "Anyone who distributes or possesses obscene articles in the course of his business is presumed to be knowingly or reckless."Article 3, paragraph 3, of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances provides that knowledge, intent or purpose of the elements constituting the offences set forth in paragraph 1 of this article may be judged on the basis of objective factual circumstances. In China's criminal law, the crime of illegal possession, as long as the perpetrator holds the above-mentioned specific items, can be presumed to know.

Taking the case of "hiding drugs in bags and bags" as an example, Article 2 of the judicial interpretation stipulates that the subjective knowledge of the criminal suspect or defendant in a drug crime case means that the perpetrator knows or should know that the act is smuggling, trafficking, transportation, Illegal possession of drugs. Among them, items 1 to 7, if the criminal suspect or defendant cannot make a "reasonable explanation" or "prove to be deceived", it can be determined that he "should know", which is a typical embodiment of presumption of knowledge in judicial interpretation. The presumption of knowledge in judicial practice is more risky, and the presumption of knowledge in the first instance and retrial of the court of first instance in the case of drug possession in bags obviously does not follow the rule of presumption, that is, the subjective constituent elements of criminal law are presumed through objective facts. Therefore, the presumption knowingly grasps the following points:

• Presumed knowledge of the underlying facts must be rigorously proved

The knowingly presumption of drug-related crimes can be presumed to be established in accordance with the normal connection between the basic facts and the presumed facts when the defendant conforms to the basic facts. If the underlying facts on which the presumption is based are themselves ambiguous, the presumption conclusion is bound to be biased. Therefore, the proof of the basic facts must be strictly proved, requiring that the evidence itself has the ability to prove, through the court investigation procedure, and should meet the standard of proof that the evidence is accurate and sufficient. In addition, China's current drug crime on the basis of the presumption of knowing the facts are still not very clear, suchThere are many provisions in the judicial interpretation of drug crime and normative documents, the nature of the provisions, how to apply in the administration of justice there is a big controversy, this paper holds that the presumption rule in the bottom of the provisions from the nature of the presumption rule does not belong to the presumption rule should be the content.

(II) limits explain the normal connection between the underlying facts and the presumed facts

In the criminal presumption, legal provisions and empirical logic are the normal connection between the basic facts and the presumed facts, but when the circumstances stipulated in the judicial documents are not sufficient to be the concomitant relationship between the basic facts and the presumed facts, criminal justice is suspected of being rashly convicted. For example, "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Smuggling and Illegal Trading of Ephedrine Compound Preparations"The perpetrator "whether the same kind of illegal and criminal act has been committed before"Key ConsiderationsAt this time, there is doubt about the normal connection between the basic facts and the actor's knowledge, because the actor's "whether he has committed similar illegal and criminal acts before" belongs to the evidence of similar acts, and there is no correlation between the actor's alleged criminal acts this time, which should be excluded. If it is allowed to be applied as the basic fact of presumption, it will violate the basic principle of legally prescribed punishment for a crime. In judicial practice, in response to this situation"A comprehensive determination should be made based on evidence in the case, such as physical evidence, documentary evidence, witness testimony, and the confession and defense of the criminal suspect and defendant, combined with the behavior of the criminal suspect and defendant.

Rebuttal of (III) Accurate Application of Criminal Presumption

The presumption of knowledge should also allow the perpetrator to present evidence to refute it, and the perpetrator's counter-evidence only needs to meet the standard of proof that the judge has reasonable doubt.In case 1, the perpetrator is in the line.The large amount of heroin seized in the mezzanine of Li Bao conforms to the situation of "carrying and transporting drugs in a highly concealed way" in the judicial interpretation. It can be presumed that the perpetrator knew that the perpetrator could not "make a reasonable explanation" and there was no "evidence that the evidence was clearly deceived. In this case, aHe refused to admit that he knew it was drugs and proposed to transport jade for the "boss". His family members provided relevant information about the "boss". A's daily remuneration is only 100 yuan. There are indeed jade bracelets in the luggage, and no fingerprints of A were found on the drug packaging. At this time, the defendant made a reasonable explanation of the basic facts. The obligation to prove whether the defendant knew was transferred to the prosecution. Even if the "boss" suggested in the second instance that A might know, it was only a subjective judgment of whether A knew. If the prosecution could not prove that A knew, it could not be determined that A knew.