From the three cases, we can see the judicial determination of the act of purchasing drugs on behalf of others

Multiple elements shall be considered in the judicial determination of whether the act of purchasing drugs constitutes a crime and what kind of crime it constitutes. Taking the effective judgment documents as an example, this article expounds the issue of judicial determination of drug purchasing on behalf of others.

Mo's illegal possession of drugs

On September 22, 2016, Luo Mou (who had been sentenced for illegal drug possession) asked Mo to buy 1,000 grams of methamphetamine for the seller he contacted, and promised to give 2,000 yuan in benefits afterwards. At about 17:00 on the same day, Luo handed over 50,000 yuan in cash to Mo. About half an hour later, Mo bought about 800 grams of methamphetamine with "Landi" for 40,000 yuan, and gave the purchased methamphetamine and the balance of 10,000 yuan to Luo. The court of first instance held that Mo mou knew that the drugs were still purchased for others and held drugs for himself, and his behavior constituted the crime of illegal possession of drugs. The court of second instance held that Mo purchased drugs for Luo and verbally agreed on a benefit fee of 2,000 yuan, which should be regarded as a disguised increase in drug trafficking, and should be convicted and punished for the crime of drug trafficking.

In this case, the courts of first instance and second instance made different evaluations of whether Mo constituted the crime of drug trafficking, because the determination of the 2,000 yuan benefit fee promised by Luo was biased. The court of first instance only paid attention to the fact that Mo returned the balance to Luo in full after purchasing the drugs, and found that Mo did not collect "'introduction fees' and 'labor fees' other than necessary expenses such as transportation, food and accommodation" in this case, so it did not constitute the crime of drug trafficking, while the court of second instance paid attention to the fact that Luo promised to pay a "benefit fee" of 2,000 yuan afterwards. Obviously, the additional income of 2,000 yuan is the basic reason for Mo to purchase on behalf of Mo, although after the implementation of the purchase behavior, the drugs and the remaining drug funds entrusted by Luo are returned to Luo in full, but it cannot be denied that Mo still has the right to obtain a benefit fee of 2,000 yuan, and it cannot be considered that Mo returned the full amount of drug funds, so he gave up the right to claim the benefit fee, and this fee can be paid to Mo after the fact by Luo. For the determination of this fact, the second-instance court's grasp of the judicial interpretation was not only interpreted at the level of the text, but proceeded from the original intention of the legislation, combined with the facts of the case and the general trading habits, and held that the request for benefit fees did not conflict with the return of drug funds, so Mo was identified as the crime of drug trafficking. This interpretation is reasonable relative to the first instance and reflects the accurate grasp of judicial interpretation.

The determination that the purchaser has the subjective purpose of selling should be strictly limited to two situations: knowing that the purchaser is purchasing drugs for sale and still carrying out the purchasing behavior, and the person himself or herself implementing the purchasing behavior for profit purposes.

When considering whether the act of purchasing drugs constitutes the crime of drug trafficking, if the purchaser knows that the consignee purchases drugs for sale and still carries out the act of purchasing on behalf of the purchaser, or the purchaser himself has the purpose of profiting from the purchase of drugs, it meets the constituent elements of the crime of drug trafficking and shall be convicted of the crime of drug trafficking. This is because, if the purpose of the consignor's purchase of drugs is to sell, the act of the consignor constitutes the crime of drug trafficking, and at this time, because the purchaser knows that the purpose of the consignee is to sell, it is enough to prove that the consignee and the purchaser have the intention to contact the drug seller, and subjectively it can be determined that it has the subjective intention to jointly sell drugs with the consignor. In terms of objective, the purchasing behavior of the purchaser belongs to the purchase behavior of the joint drug trafficking with the purchaser, so the purchaser is objectively also an accomplice to the drug trafficking of the consignment, and the subjective and objective are unified, and the purchaser and the consignee both constitute the crime of drug trafficking and are joint crimes.

If it is subjectively possible to determine that the purchaser has the purpose of making profits from the act of purchasing drugs on behalf of the purchaser, according to the "Minutes of the National Forum on the Trial of Drug Crimes in the Courts", "if the purchaser makes profits from it and sells drugs at a disguised price increase, the purchaser shall be convicted of the crime of drug trafficking", the purchaser shall be identified as a serious offender of the crime of drug trafficking. At this time, it should be noted that even if the consignor is found to be guilty of drug trafficking because of the purpose of trafficking, if the purchaser does not know or should not know the purpose of the consignee, and there is no contact between the purchaser and the consignee, the two parties do not constitute a joint crime of drug trafficking, but are committed by the crime of drug trafficking.

If it is subjectively impossible to determine that the purchaser has the purpose of making profits from it, nor can it be found that the purchaser knows that the consignee has the purpose of selling, then the purchaser's drug purchase behavior can only be analyzed as constituting the crime of transporting drugs, the crime of illegal possession of drugs, etc., and cannot be convicted and punished as an accomplice or a convict of the crime of drug trafficking. In addition, according to the "Minutes of the National Forum on the Trial of Drug Crimes in Courts", when certain circumstances are met, the purchaser may become an accomplice to the crime of transporting drugs by the purchaser.

Huang Mou drug trafficking case

On the evening of February 13, 2017, zhao entrusted defendant Huang to contact and purchase 12 grams of methamphetamine in order to take drugs, and paid 2,800 yuan for drug purchase funds. Huang contacted "Xue" to buy 12 grams of methamphetamine for 2800 yuan, and handed it to Zhao that night, and Zhao gave Huang 100 yuan taxi fare and 0.3 grams of methamphetamine. On the evening of February 20, 2017, in order to take drugs, Zhao entrusted Huang to contact and purchase methamphetamine, and paid Huang 300 yuan to purchase drugs. After the emperor contacted Mao to buy methamphetamine for 300 yuan, and handed the drugs to Zhao that night, the emperor and Zhao and others used all the methamphetamine purchased for smoking. The public prosecution organ filed a public prosecution with the court on the suspicion of drug trafficking, and the court, after trial, found that the charges charged by the public prosecution organ were improper, and finally convicted and sentenced him for the crime of illegal possession of drugs.

In this case, the public prosecution organ held that the defendant's conduct constituted the crime of drug trafficking, that is, after The Emperor committed the first purchasing act, Zhao gave the Emperor 0.3 grams of ice, and after the second purchase act of the Emperor ended, the Emperor, at the temporary invitation of Zhao, jointly ingested the purchased methamphetamine with Zhao and others, so it was determined that the Emperor obtained benefits through the purchase of drugs, which belonged to the profit from the implementation of the drug purchase. This is an objective fact of profit after the implementation of the drug purchase behavior, and it is inverted to presume that the previous purchaser had the subjective purpose of making profits in the process of implementing the drug purchase behavior, and there was obvious impropriety. Because the benefits obtained after the implementation of the drug purchase behavior do not belong to the factual scope of the implementation of the drug purchase behavior, unless there is sufficient evidence to prove that the previous purchaser has the purpose of profiting from the purchase of drugs; the fact that the purchase agent has profited after the implementation of the drug purchase behavior does not necessarily lead to the previous purchase agent having the purpose of making profits, because the profit behavior afterwards may indeed be the behavior that the previous entrustment buyer and the purchaser have agreed upon, and the entrusted buyer has performed according to the agreement. However, it may also be that the two parties did not have an agreement to profit from the purchaser before, but the unilateral gift and other acts that the purchaser temporarily initiated and took the initiative to carry out out the act of unilateral gifting out of gratitude to the purchaser and other purposes. It is impossible to exclude reasonable doubt based solely on the fact that the purchaser has made a profit after the fact that the purchaser has made a profit after the fact that the purchaser has made a profit after the fact, and does not meet the standard that the evidence must be satisfied in determining the facts. Therefore, in the absence of other evidence to prove that the purchaser has previously had a profit-making purpose, according to the principle that there is no doubt that the crime is never committed and that it is doubtful to benefit the defendant, a determination should be made in favor of the defendant, and the defendant should be found to have no profit-making purpose. In this case, whether it was obtaining 0.3 grams of ice or jointly taking drugs, it was an act after the completion of the act of purchasing drugs, and it was all an act of the entrusted purchaser's temporary intention to donate and invite after the fact, and the public prosecution organ presumed that the purchaser had the purpose of making profits based on the fact that the purchaser had the purpose of making profits, which obviously violated the principle of never having a suspected crime and having doubts in favor of the defendant, so the court did not accept it, but convicted and sentenced him on other charges.

Cai Moujia illegal drug possession case

At the request of the detention center detainees Li Moujia, Xiao Moujia and others to take drugs, Cai Moujia and others hid 19 small bags of drugs wrapped in plastic bags and a blue Nokia inline mobile phone in the soles of the cotton slippers they bought back at about 9 o'clock on October 14, 2015, in the housing of a residential area. At about 3 p.m. on the same day, Cai Moujia drove from the community to a certain intersection with others, asked others to hand over the slippers containing drugs to Xiao Moujia's mother, Xiao Mouyi, and told Xiao Mouyi to send the slippers to the Detention Center of the Lingling Branch of the Yongzhou Municipal Public Security Bureau to hand them over to the detainee Xiao Moujia. On the morning of October 15, 2015, Xiao Mouyi and Xiao Moubing rode motorcycles to deliver slippers and four novels containing methamphetamine and mobile phones to the detention center's doorman's room. In the afternoon of the same day, when the police of the detention center inspected the items received, they found an abnormality and called the police, which led to the occurrence of the case. After weighing, 19 packets of suspected drugs weighed 13.87 grams net, and methamphetamine components were detected after testing.

The court of first instance held that Cai Moujia's behavior of transporting drugs to the detention center with the intention of handing them over to detainees for consumption constituted the crime of transporting drugs, and convicted defendant Cai Moujia of the crime of transporting drugs, sentenced him to five years' imprisonment and fined him RMB20,000. After the appeal, Cai Moujia's defender put forward the defense opinion that "the appellant Cai Moujia, as a drug purchaser, transports drugs for drug addicts, transports drugs for free in the same city, has no purpose of making profits, and the transportation distance is short, and the appellant's behavior should be characterized by the crime of illegal possession of drugs". The court of second instance held that the act of purchasing a large quantity of drugs for consumption for others and transporting them in the same city without the purpose of profit-making constituted the crime of illegal possession of drugs, referring to the main point of the judgment of the Criminal Trial Reference No. 853 case.

In this case, the court of first instance mechanically understood the meaning of "transportation" in the crime of transporting drugs. The crime of transporting drugs and smuggling, trafficking and manufacturing drugs as optional crimes should be interpreted in the same amount as the above three acts, which means that the transportation behavior also needs to be the same as smuggling, trafficking and manufacturing drugs, which is a supply-oriented drug-related act, with the fact of spreading drugs or a high degree of certainty, and only then does it have the legal interest infringement intended to be protected by this crime. In this case, the perpetrator Cai Moujia's act of purchasing drugs on behalf of a specific drug addict was for specific drug users to consume, and there was no possibility of spreading drugs, and at the same time, the space where the act occurred was in the same city, and Cai Moujia had no purpose of making profits, which could not constitute the crime of drug trafficking, and the determination of the crime of transporting drugs should also be excluded. According to the "Criminal Trial Reference" Case No. 853 Judgment Gist: The act of not purchasing a large quantity of drugs for consumption for others for the purpose of making profits and transporting them in the same city constitutes the crime of illegal possession of drugs, so this case should be convicted and punished as the crime of illegal possession of drugs.

(The author is an assistant judge of the Criminal Trial Division of the Tianzhu County People's Court in Guizhou Province)