為什麼中國毒品犯罪越來越多？-- 基於 Y 省的毒品犯罪司法經驗研究

Abstract

Different from dominant views in academic and practical circles, the dissertation presents a bold assumption and anticipation over explaining why drug crimes are increasingly severe in China, that is, this serious consequence may be related to insufficient deterrence of penalty against drug crimes. China has insisted that drugs should be prohibited and drug crimes should be cracked down at the policy level (including legislation), expecting to curb or even eliminate drug crimes through strict laws. However, dynamic drug criminal justice has not yet totally realized severity of drug criminal laws statically and legislatively, coupled with insufficient deterrent force against actual drug criminal penalty and unavailable general and special prevention functions of criminal penalty, so there is the fact that drug crimes are getting more severe.

The argument in this dissertation for insufficient deterrence of penalty against drug crimes goes from both macro and micro levels. In the context of statutory laws in China, implementation and enforcement of drug criminal laws are under the influence of juridical policy of the Supreme Court. Under the current judicial structure, on account of the state politics, policies, legal environment and other factors as well as struggle among different forces, the criminal judicial policy for drug crimes is characterized with evolution from “severity” to “leniency” and two-sidedness with “punish with severity” on the surface but “punish with leniently” in fact, instead of fully performing severity of the criminal law against drug crimes to the letter. Only by doing so, will the Supreme Court accomplish political tasks in different periods while maintaining its function in the rule of law. Based on description and analysis of the relationship between evolution of the criminal judicial policy for drug crimes and changes in the number of drug crimes, it is initially thought in the dissertation that, from the macro perspective, severity of drug criminal laws is discounted by hand of justice policy, thus weakening and distracting deterrence of penalty against drug crimes.

In order to justify the above assumptions and judgments from the micro and empirical perspective, this dissertation takes drug criminal cases dealt with by courts in Y province as the study sample. Around the important discovery of “why cases on crimes of transporting drugs in Y province are getting more severe?”, this dissertation has a deep investigation into drug crimes trial procedures in courts to make a systematic observation and comprehensive analysis over how drug crime penalty is applied specifically to drug criminals from conviction and penal discretion, and by making “thick description” and observation of penalty reactions of drug criminals, the dissertation further discovers that the certainty, severity and impartiality of penalty against drug criminals are damaged and weakened by different degrees, and the deterrent effectiveness of penalty has not yet come into shape. On this basis, this dissertation updates and supplements the traditional theories of deterrence effects of penalty, and enhances further understanding of conditions and mechanisms for the deterrent effectiveness of penalty to come into play.

Date of Award	30 Mar 2017
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Xin Frank HE (Supervisor)