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非法持有毒品,特别是非法持有新型毒品(如摇头丸、麻古等)的构罪数量问题一直以来存有争议,司法实践中也有按照纯度折算后再考虑是否达到构罪数量的做法。本文从某省部分司法解释出发,探析立法原意,提出毒品含量只应在量刑时予以考虑,而不影响定罪。文中认为实践中按照纯度折算后再计算毒品数量的做法有突破立法之嫌。
The problem of the number of criminal structures that illegally hold drugs, especially illegal possession of new types of drugs (such as MDMA, Maqu, etc.) has always been controversial. Judicial practice also includes the consideration of whether the number of convictions has been reached after it has been converted into purity. Based on the judicial interpretation of some provinces, this article explores the original intent of the legislation and proposes that the drug content should be considered only in sentencing without affecting the conviction. The article thinks that in practice, the practice of calculating the amount of drugs according to the purity is suspected of breaking the legislation.