Judge Fang Wenjun, who is in charge of hearing drug cases of the Supreme People's Court, published "Several Important Issues in the Determination of Drug Trafficking Crimes" in the first issue of 2024, giving opinions on the controversies existing in drug cases in judicial practice for reference in judicial work. The first question,Characterization of compound preparations containing controlled narcotic drugs.
In the past few years, many places have filed and sentenced cases for such acts as drug crimes, but there are also local procuratorates and courts that have determined that they do not constitute a crime, and in fact, compound tramadol preparations will only be officially listed as Class II psychotropic drugs on July 1, 2023. Therefore, Judge Fang Wenjun once again elaborated on a point of view in the article: except for compound preparations that have been clearly listed, other compound preparations containing controlled narcotic drugs in violation of regulations should not be recognized as drug crimes. On this issue, the author has also written an article before, which can be used for reference: the sale of compound preparations containing controlled narcotic drugs does not always constitute the crime of drug trafficking.
The second question,On the characterization of borrowing money with drugs as collateral. In judicial practice, in addition to the typical purchase and sale of drugs for money, there are also acts of exchanging drugs for property or other benefits, which is also a great controversy. In the article, the clear opinion is that drugs are exchanged for property and debts are used to sell drugs; Those who use drug pledges to borrow money and return it after a period of time may not sell drugs; Where the market price of the pledged drugs is equal to the amount of the loan, and the lender sells or consumes the drugs after obtaining them, it is to be characterized as the crime of drug trafficking; If the other party is used as a condition to use the other party for ingestion, it is usually not appropriate to be found to be drug trafficking, but if the person is originally a person and the amount of drugs provided is basically the same as the amount of prostitution funds, this is actually equivalent to using drugs to pay for prostitution, and it may be considered to be found to be a drug trafficking crime. The third question,The nature of the act of exchanging drugs for drugs. In the case of the buyer, the buyer exchanged the drug-making goods for the drugs, and the drug-making goods were equivalent to the property and were the consideration paid by the buyer, and the buyer purchased the drugs for the purpose of selling the drugs, so the crime of drug trafficking was constituted. If the buyer's act of buying and selling manufactured drugs meets the criteria for this crime, it should be punished concurrently for the crime of illegal trade in manufactured drugs and the crime of drug trafficking (in the author's opinion, the implication is that if the drugs exchanged are not used for trafficking, they should be characterized as illegal possession of drugs). If the buyer clearly knows that the other party is a drug producer and that the drug production materials provided will be used by the other party to manufacture drugs, although its purpose is only to exchange for drugs and not to deliberately provide assistance to the other party in the manufacture of drugs, its conduct still meets the above-mentioned provisions of "being punished as an accomplice to the crime of drug manufacturing", and should be punished concurrently for the crime of drug manufacturing and drug trafficking, and the crime of illegal trade in drug production materials is no longer recognized. For the seller, it is clear that the act of exchanging drugs for drug-making substances constitutes the crime of drug trafficking. If the purpose of the exchange for narcotic substances is to resell them, the act constitutes the crime of illegal trade in narcotic substances if the relevant conditions for conviction are met, and the punishment for several crimes shall be combined. If the purpose of the exchange for narcotics is to manufacture narcotics on their own, then their conduct constitutes the crime of trafficking and manufacturing narcotics, and it is not necessary to separately establish the crime of illegal trade in narcotic substances. Fourth question,Characterization of reciprocal drug acts. Where drugs are exchanged for drugs for sale by others, it is to be convicted and punished as the crime of drug trafficking; Where the two sides exchange drugs for the purpose of taking drugs, constituting the crime of illegal possession of drugs or other crimes, they shall be convicted and punished in accordance with law; Where one of the parties to a transaction is a drug trafficker and the other party is a drug user, one party shall be convicted of drug trafficking, and the other party shall be characterized as illegal possession of drugs. Fifth question, the characterization of giving away drugs in the process of drug trafficking. Giving away drugs in the course of drug trafficking, for the upper family, the part given at the time of sale (which should refer to the gift given in the course of a sale) is convicted of drug trafficking; Giving part of the gift to another person for sale and part of it for free (it should refer to a different person, or the same person, but the sale and gift are separate times), and the gift part is characterized as illegal possession of drugs; If the giver is not a drug addict and there is no evidence to prove that it has been sold, the donated part is characterized as illegal possession of drugs: for the next family, if they buy drugs and prepare them for sale, the part they receive as gifts is usually included in the amount of drugs sold. However, if the type of drug received as a gift is different from the type of drug purchased, and the next family justifies that it is used for consumption, and it is the same type of drug that the next family consumes, it may not be determined that the next family sells drugs (the implication is that if the gift is different from the drug consumed by oneself, it can be determined to be drug trafficking; If there is no evidence to prove that the house was used for drug trafficking, it will be characterized as illegal possession of drugs). Sixth question,Handling of the return of drugs after purchase, for the seller, the drug trafficking is completed; For the buyer, if he is afraid of being investigated for legal responsibility after the purchase, and returns the drug money and wants to return the drug money, it may be found that the crime is suspended; If the intention to sell is temporarily abandoned because of the poor quality of the drug, the "market"**, etc., it can be dealt with as an attempt to commit a crime.