In recent years, some unscrupulous elements
in other people's drinks, food
Dropping "drugs"
(Triazolam, flunitrazepam, etc.)
Hemp essence medicine with sedative and sleeping effect)
The number of illegal and criminal cases has increased
It is especially prominent in some venues
High social hazard
For cases involving "drugs".
How to determine the nature of the relevant acts
There are many controversies in judicial practice
There is a need to explore clearly
Identification of smuggling and trafficking in "drugs".
Defendant A solicited from overseas sellers through the Internet to purchase state-controlled narcotic drugs such as triazolam and midazolam, and received packages containing triazolam and midazolam under fictitious names and product names. Later, he posted information in an online chat group, saying that he had a batch of "ecstasy" for sale, and sold triazolam and midazolam to others on many occasions. The public security organs found that some of the drugs involved in the case were used for rape and criminal activities.
In the course of handling the case, there is a certain amount of controversy as to how to characterize defendant A's conduct. Some believe that their acts constitute the crime of smuggling and trafficking drugs, while others hold that their acts do not constitute drug crimes, mainly because although the triazolam and midazolam involved in the case are narcotic drugs controlled by the state, they are special and can be used as medical treatment, and only narcotic drugs that are abused by drug addicts who are out of control are drugs. In this case, defendant A sold narcotic drugs in the name of "ecstasy", and the judicial authorities later confirmed that some of the drugs were used for the criminal activities of adultery and were not used for abuse. Defendant A argued that the narcotic drugs involved in the case had not been abused by drug addicts, and that it did not constitute a drug crime. A similar view has long been a common understanding among some local judicial personnel, but it is actually a misreading of the mainland's drug control system. Lawbreakers who smuggle and sell "ecstasy" and are arrested by the public security organs but are not prosecuted or acquitted must be resolutely corrected.
In fact, according to the relevant provisions of the Criminal Law, the Anti-Narcotics Law, and the Regulations on the Administration of Narcotic Drugs and Psychotropic Substances, drugs belong to the category of narcotic drugs, but some narcotic drugs can be legally used for medical, teaching, and scientific research purposes. According to the laws and regulations of the mainland, all kinds of narcotic drugs are strictly controlled, except for medical treatment, teaching, scientific research and other legal purposes, smuggling and trafficking for other illegal purposes shall be recognized as drugs, and relevant acts shall be recognized as drug crimes. Some lawbreakers take advantage of the sedative, sleeping, and other effects of narcotic drugs to smuggle and sell "ecstatic drugs" for use in criminal activities of adultery, causing serious harm to society, and shall be severely punished for the crime of smuggling and trafficking drugs in accordance with law. In the above-mentioned case, defendant A clearly knew that triazolam and midazolam were prohibited drugs controlled by the state, smuggled them into the country under fictitious names and product names, and then used the Internet to sell them in the form of "ecstasy", and some of the drugs were used in criminal activities of rape, and his conduct should be investigated for criminal responsibility for the crime of smuggling and trafficking drugs.
Determination of the act of "drugging".
Defendant B learned from the Internet that C had "ecstasy" for sale, and purchased triazolam tablets from C on several occasions. Later, in order to seek stimulation, defendant B took advantage of his girlfriend's unpreparedness to repeatedly put triazolam pills into his girlfriend's drink, causing him to experience symptoms such as dizziness and lethargy. Defendant B also put triazolam tablets into the female colleague's beer cup while eating with his female colleague, causing him to develop symptoms such as dizziness and coma, and was sent to the hospital for treatment.
For similar cases, there are still cases in judicial practice in which the crackdown is not effective. The purpose of the criminals to put "drugs" on the victims is to commit crimes such as rape, indecency, robbery, etc., while others are to seek excitement and have no specific criminal purpose. When a crime such as rape has not yet been committed, or when there is no evidence to prove the purpose of the specific crime, the judicial authorities often do not pursue criminal responsibility and indulge in the crime.
In fact, where the perpetrator clearly knows that it is a narcotic substance controlled by the state and puts it into the drinks or food of others, and deceives others into taking it, criminal responsibility shall be pursued for the crime of deceiving others into taking drugs. Deceiving others into taking drugs is generally the use of covert means to make people who are not willing to take drugs ingest narcotic drugs controlled by the state. If the perpetrator has informed the user in advance that the relevant item is a narcotic drug, or both parties are aware of it, this crime is not constituted. Where there is evidence showing that the perpetrator deceived others into ingesting narcotic drugs for the purpose of committing a crime such as rape or robbery, criminal responsibility shall be pursued for rape, robbery, or other serious crimes in accordance with the heavier punishment. In circumstances where the aforementioned serious crimes such as rape and robbery cannot be determined, the judicial organs shall promptly prosecute the relevant conduct for the crime of deceiving others into taking drugs.
It is worth noting that it is necessary to give full consideration to the specific circumstances such as the time and space of the perpetrator's criminal act of disseminating "ecstasy", and for those who distribute narcotic drugs for the purpose of committing a serious crime, they should be resolutely prosecuted in accordance with the charge of serious crimes, and cannot be downgraded to the crime of deceiving others into taking drugs. If the use of narcotic drugs by another person is not based on the deceptive act of the perpetrator, the perpetrator's conduct cannot constitute the state of res judicata of the crime. Where the perpetrator deceives others into taking narcotic drugs, it does not affect the establishment of the crime, regardless of whether the victim is addicted to drugs, but may be considered as a sentencing circumstance. In addition, in some cases, when the victim is already unconscious or unable to resist, the lawbreaker forcibly feeds or injects narcotic drugs against the will of others, and shall be investigated for criminal responsibility in accordance with the crime of forcing others to take drugs. "Against the will of others" does not depend on whether or not the victim resists, and it cannot simply be held that the victim's failure to resist or the lack of obvious resistance is equivalent to consent, and as long as the victim is forced to take narcotic drugs without taking the initiative or voluntarily, it shall be found to be the crime of forcing others to take drugs. In the above-mentioned case, defendant B put "ecstasy" on his girlfriend and other female friends, and took advantage of the unpreparedness of others to put the state-controlled psychotropic drug triazolam pills into drinks, causing people to fall into a coma, and there was no evidence to prove that he had criminal intent such as rape and indecency, and his conduct met the constitutive elements of the crime of deceiving others into taking drugs as provided for in the Criminal Law, and should be pursued for criminal responsibility for the crime of deceiving others into taking drugs.
Identification of related acts
Situations where death or injury are caused by the release of "ecstasy" shall be handled separately from the specific circumstances.
First, if the perpetrator has the intent to intentionally kill and intentionally injure, then his conduct constitutes the crime of intentional homicide and intentional injury, and the act of deceiving or forcing others to take narcotic drugs is only a means of killing and harming, and does not need to be evaluated separately.
Second, if a person is deceived into ingesting or injecting narcotic drugs and causing death or disability, and there is no evidence to prove that the perpetrator had the subjective intent to intentionally injure or intentionally kill, and was only negligent in the death or disability, the crime of causing serious injury by negligence or causing death by negligence shall be determined. However, considering that the statutory penalty for the crimes of negligence causing death or negligence causing serious injury is relatively low, it is more reasonable to treat serious consequences caused by negligence as a serious circumstance for the crime of deceiving others to take drugs.
Third, if the perpetrator subjectively did not actively pursue the occurrence of the death or serious injury of others, and forced others to consume excessive amounts of narcotic drugs, a judgment shall be made in light of the specific circumstances of the perpetrator, and if the perpetrator himself is a drug user, drug trafficker, or has drug-related expertise, etc., he should be able to recognize that such conduct may lead to the death or serious injury of others and still carry out the act, and shall be able to find that he has a laissez-faire intention to kill or seriously injure others, and if it causes the death of the victim, and where they are seriously injured, criminal responsibility shall be pursued for the crimes of intentional homicide or intentional injury.
Fourth, if the perpetrator lacks professional knowledge such as drugs, and compulsorily ingests a very large amount of narcotic drugs, even if his justification does not have the subjective intent to cause death or serious injury, he should be convicted and punished as the crime of intentional homicide or intentional injury, and at this time it is essentially a laissez-faire intention. If the amount of narcotic essence used is not obviously excessive, it cannot be found to be the crime of intentional homicide or intentional injury, and the crime of causing death by negligence or serious injury by negligence cannot be committed. In view of the fact that the maximum statutory penalty for the crime of negligence causing death and negligence causing serious injury is lower than the crime of forcing others to take drugs, it should be found that the crime of forcing others to take drugs should be punished heavily.
(The author is a prosecutor of the Second Procuratorate of the Supreme People's Procuratorate)
END
Source: China Anti-Drug News
Editor: Shelley Xu
Proofreading: Yu Hongqing
Review: Wang Jin
Issued: Shi Qinghua
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