Standardize the application of "treatment of diseases and other related purposes" to accurately crack down on crimes involving narcotic drugs

　　Narcotic drugs refer to narcotic drugs and psychotropic substances, which are commonly found in medical activities and daily life. Due to the dual attributes of drugs and drugs, there are many difficulties in the application of law in crimes involving narcotic drugs. The Minutes of the National Work Conference on the Trial of Drug Cases by Courts (hereinafter referred to as the "Minutes") issued by the Supreme People's Court in June 2023 stipulate that if there is evidence to prove that for the purpose of treating diseases and other related purposes, in violation of national regulations on drug administration, and without permission to operate narcotic drugs or psychotropic substances controlled by national regulations and with legal purposes such as medical treatment, they shall not be punished as drug crimes; where the circumstances are serious and constitute other crimes, it is to be handled in accordance with law. Carrying out the conduct described above in the nature of self-help or mutual assistance may generally not be handled as a crime; Where it is truly necessary to pursue criminal responsibility, leniency shall be fully demonstrated in accordance with law. Combined with the provisions of the Minutes, it is still necessary to further identify the acts involving narcotic drugs, and standardize the application of "treatment of diseases and other related purposes" to ensure the accuracy of the criminal law's crackdown on acts involving narcotic drugs.

　　Judgment of the attributes of the requirements of "treatment of diseases and other related purposes". Judging from the expression of the Minutes, the "relevant purposes such as the treatment of diseases" in the provisions should be classified as a subjective element, which is the psychological attitude of the actor when he or she is engaged in the business of narcotic drugs, and has the purpose orientation behind the typical behavior, and cannot be regarded as an objective element. On the whole, "treatment of diseases and other related purposes" is a policy-based consideration based on the particularity of anesthetic drugs. Because narcotic drugs have the dual attributes of drugs and drugs, under the premise of a specific subjective purpose, they do not have the social harm under the usual circumstances of drug crimes, and it is too strict to include them in drug crimes at this time, so it is reasonable to exclude them from drug crimes.

　　It should be pointed out that this subjective purpose is not the psychological attitude of the purchaser, but the psychological attitude of a specific actor such as the operator. If only the purchaser has this purpose, but the operator or other actor who is the opposing party does not have this purpose, the purchaser will not be found to have committed a drug crime, and other actors cannot be treated equally based on the review of compliance with the subjective elements.

　　The scope of "treatment of diseases and other related purposes" needs to be reasonably delineated. In practice, the scope of "treatment of diseases and other purposes" should be reasonably limited, and the subjective confession of the perpetrator should not be used as the sole basis for determination. Specifically, "treatment of diseases and other related purposes" should be based on the premise of the existence of a normal disease, and the rationality and necessity of medical medication should be taken as a reference. In terms of the extension of diseases, the "diseases" here include psychological diseases in addition to physical diseases. For example, resorting to narcotic drugs for severe psychological depression still belongs to the category of treating diseases because they do not exclude mental illness and its drug-assisted therapy in pharmaceutical clinics. However, this "disease" cannot go beyond the general understanding of society, and cannot be a mere subjective guess or hypothetical determination of the self. Merely for the purpose of relieving work stress, etc., should not be classified as "treatment of illness, etc." In addition, the operation or use of narcotic drugs for the purpose of weight loss in practice should not be generalized to the category of "treatment of diseases, etc.", otherwise the scope will be expanded and the necessity of restrictive identification of drug crimes will be lacking.

　　Rationally view the relationship between "the purpose of treating diseases, etc." and subjective knowledge. "Treatment of diseases and other related purposes", as the subjective purpose of the determination of the drug crime, is only part of the subjective elements of judicial review, and cannot completely negate the necessity of the intentional element to be established in other aspects, let alone directly replace the separate review of the "knowing" element. As far as the determination of drug-related crimes involving narcotic drugs is concerned, the subjective knowledge of the perpetrator has a greater particularity, because the perpetrator often does not know whether the object of the act is a drug due to the existence of the purpose of treating a disease. In addition, whether the narcotic essence drug is under state control is in a state of dynamic adjustment also affects the judgment of whether the actor's subjective knowledge can be established.

　　As far as the relationship between "treatment of diseases and other related purposes" and subjective knowledge is concerned, if it can be clearly ascertained that the perpetrator subjectively has the purpose of treating diseases, etc., then the determination of drug crimes can be ruled out, and the tension between drug punishment and treatment and saving people can be alleviated by distinguishing between drugs and drugs. If there is no definite evidence to prove that the perpetrator had "related purposes such as treating diseases", it should be further determined whether the perpetrator had "knowingly". If the perpetrator does have an unavoidable misunderstanding, it should be prudently determined whether the crime is established or not based on the circumstances of the specific case and on the basis of the principle of consistency between subjectivity and objectivity.

　　The issue of the burden of proof for "treatment of diseases and other related purposes". "Treatment of diseases and other related purposes" requires "proof of evidence" to be necessary for its actual establishment, so it needs to be further clarified who bears this burden of proof. In the Minutes, it only requires "credible evidence", and does not clearly stipulate the burden of proof. From a practical point of view, if it is considered that the burden of proof is on the prosecution, it is necessary for the procuratorate to exclude the use of drugs for related purposes such as the treatment of diseases, otherwise the drug crime will not be established. In this case, although the burden of proof by the procuratorate can reduce the defendant's burden of proof and is conducive to protecting the lawful rights and interests of the persons involved in the case, it is unreasonable for this burden of proof to be placed entirely on the procuratorate.

　　In the provisions of the Criminal Law on the constitutive elements for the establishment of drug crimes, there is no explicit requirement of "treatment of diseases and other related purposes", and requiring the procuratorate to bear all the burden of proof in this regard goes beyond the necessary scope of the duty of prosecution. The burden of proof on the prosecution is to prove the facts constituting the elements of the crime, rather than to conduct a comprehensive investigation of all the elements beyond the excesses, and it is not necessary and impossible to bear the burden of proving the reasonableness of all the elements of the guilt in addition to all the elements of guilt. As far as practice is concerned, the facts of the constituent elements of the establishment of a crime are relatively clear, but it is difficult to count the factors that exclude the establishment of a crime, and requiring the procuratorial organs to bear the corresponding burden of proof in this regard will inevitably lead to an unbearable burden of generality and impropriety. The allocation of the burden of proof should also take into account practical feasibility, and the necessity of the appropriate penalty should still be taken into account. The purpose of the actor's act involving narcotic drugs is often based on the actor's subjective intention, because the determination of the subjective attribute of this element does not necessarily correspond to the subsequent objective act. The perpetrator points out that his purpose is legitimate, and in itself does not mean to deny the act itself, but to exclude the necessity of punishment for drug crimes based on the legitimacy of the use, so the submission of this subjective element belongs to the scope of the actor's reasonable justification, and it is reasonable and justified for the actor to complete the presentation of evidence and explanation.

　　(The author is a professor and doctoral supervisor of Southwest University of Political Science and Law)

Source: Procuratorate Daily