为吸毒者代购毒品的行为涉及贩卖毒品罪、运输毒品罪和非法持有毒 品罪等数种犯罪行为. 最高人民法院的座谈会纪要对此有规定,但前后意 见不一. 刑法理论界和司法实务界对此也颇有争议. 如何正确理解座谈会 纪要的内容,如何厘清贩卖毒品、运输毒品和持有毒品行为之间的界限 十分必要. 本文认为,最高人民法院的会议纪要不是司法解释,没有法律效力. 在 参照会议纪要的具体规定处理案件时,应当正确把握会议纪要的精神, 不能望文生义. 为吸毒者代购毒品,即使毒品有物理位置上的移动,且数 量较大,不应当定性为运输毒品罪. 如果没有明显的牟利动机和牟利事 实,也不应当定性为贩卖毒品罪. 为吸毒者代购毒品一般只构成非法持有 毒品罪,甚至不构成犯罪. 对于疑难案件的正确定性归根到底还是要完整地贯彻刑法的罪刑法 定、罪刑相适应原则,以最理性、最妥善的方式予以定罪量刑.
The act of purchasing drugs on behalf of drug users involves several criminal acts, such as drug trafficking, drug transportation and illegal possession of drugs. Several documents of the Supreme People's Court stipulate this phenomenon, but there are different opinions. There are also controversies in the circles of criminal law theory and judicial practice. How to correctly understand the contents of the different documents of the Supreme People's Court and how to clarify the boundaries between drug trafficking, drug transportation and drug possession is very necessary. This paper holds that the minutes of the Supreme People's court are not judicial interpretations and have no legal effect. When dealing with a case by referring to the specific provisions of the minutes of meeting, we should correctly grasp the spirit of the minutes of meeting, and cannot live up to the letter. Buying drugs on behalf of drug users, even if the drugs have physical location movement, and the number is large, should not be defined as the crime of transporting drugs. If there is no obvious profit-making motive and fact, it should not be defined as the crime of drug trafficking. Buying drugs on behalf of drug users generally only constitutes the crime of illegal possession of drugs, or even does not constitute a crime. In the final analysis, we should fully implement the principle of legality and the principle of proportionality in criminal law, and deal with criminal cases in the most rational and appropriate way.