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A Study On The Imputation Of Cognitive Errors In Criminal Law

Posted on:2016-11-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:W DuFull Text:PDF
GTID:1106330461463096Subject:Criminal Law
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The error of cognition in the criminal law is a very complex but very important basic theoretical issues. It is not only concerned with the distinction between illegal and responsibilities basis and affect deliberately positioned in the constituent elements of the system, and effect those theorists and judicial practice on objectivism and subjectivism choice stance. Therefore, domestic and international criminal law scholar have devoted a great deal of academic enthusiasm. However, we should see that the current academic research on understanding the error, just stay at the level of theoretical debate, but did not form a system of construction and use of skills, "contending" stage. In particular:the content-of the understanding the facts wrong have the Elements of the border, but the four elements of the Criminal Law in the inner elements of the system itself, "all-inclusive", "subjective and objective hybridity", the elements is hard to clear show out, plus the" subjective and objective uniform principles "to reconcile,so that the imputation of understanding of the facts is become difficulty. In addition, China’s criminal system is not form a separate responsibility class, but not put the "illegal cognition" into the class of the responsibility which leading the judicial practice still apply mechanical "ignorance of the law, no exemption" principle, which tend national management and the protection of individual rights is biased. At present, China’s understanding of false criminal theories research stay in the " understanding the facts wrong stop deliberately set up, legal awareness error does not stop deliberately set up," the classification of simple imputation crude stage, even if it comes to theoretical issues, most are involved in status classification problem with little understanding of the wrong combination of theoretical foundation level, in-depth analysis from the imputation system construction process research wrong understanding. At present, due to lack of theoretical research, leading to judicial practice judicial officers to recognize the error is often confused, today. Given the domestic criminal law scholars recognize the error of theoretical research is relatively weak, this paper aims to guide the type of thinking with the wrong interpretation of the facts and the law recognize the wrong understanding of the specific responsibility principle, to provide for the improvement and development of China theoretical understanding of the guiding theory wrong and the formation of judicial practice guidance applicable on this basis.Apart form the introduction and conclusion parts, this paper contains five chapters, andis about 12 million words.The first chapter outlines the error of cognition in criminal law. the error of cognition in criminal law include understanding the facts wrong and legal awareness error. The first one means understanding the subjective and objective fact situations. Due to the fact that the error involved in the act of knowledge (including behavioral conduct、subjective imagination and objective actual behavior) must be meaningful behavior constituent elements, therefore, the spontaneous behavior of animals, not guilty, superstition guilty, are not in the know superstition discussion within the error range. Looking at the domestic and international criminal law theory wrong understanding about the history, you can clearly see that the error imputation in the criminal law recognize the main objective doctrine of confrontation, which is rooted in the tension between individual rights and community management. It should be noted, understanding the behavior of people with calculated crime error is meant to go to a certain behavior, but it appeared with a different objective results. Therefore, understanding the wrong imputation process, intentional and negligent actually spans two sin, none its scope is not limited to the objective behavior attributable to human behavior is the establishment of an intentional crime problem processing, in fact, also includes subjective been recognized to, but did not appear in the results of the objective, and whether it should bear the responsibility of handling the problem. These are two sides of an issue, none can not be neglected, which is the specific objective and subjective interpretation of the principle of unity. Legal awareness of errors that are not aware of their behavior is against the law. Legal awareness imputation error criterion is illegal cognition can be avoid. When illegal cognition errors are inevitable it can negates responsibility, so as not to set up a crime; and when illegal cognition errors can be avoided, then diminished responsibility.Chapter two recognize misclassified inspection. By understanding the error system is generally divided into instituent elements of the error and forbid error, our criminal system is generally divided into understanding the facts wrong and legal awareness error. Understanding of the content and amputation misclassified different systems at different constituent elements. Three advantages class classification under the system are threefold: First, clear classification conducive accurate attribution; second, evaluation, rational judgment in favor of the normative sense; third, liability class independence, protection of human rights in favor of merit. The disadvantage is that the law can not include the fact negates understanding error, there is a contradiction classified. "Limitation of Liability" theory, "invoke the legal consequences of restrictions guilt theory," the distinction between factual errors and errors of law, "strict liability" theory, "limit the legal effect of the contraction theory theory of liability" and "negative elements of the theory." This theory have tried several way to put a solution, but they can not solve these problems. Combined with China’s criminal system, excluding the fact that the subject of erroneous understanding of the law recognize the error of fact, negates criminal intent, no link has experienced double evaluation, no oversight structure, logical contradictions. However, the error and the fact that our country’s level of legal error classification crude, simple imputation, imputation result of various judicial practice for solving a variety of cases, the fact there is a sense of people wanting more. Therefore it is necessary to recognize the error of classification and attribution on the basis of the constituent elements of a new understanding. This paper argues that:Social Damage is intentionally presumption factors, under normal circumstances would be presumed perpetrator intentionally set up a social awareness of the dangers, of course, the perpetrator can make proof that they do not recognize the existence of social harm, which negates intentional. Our intent include:Recognizing Elements Elements+ harmful to the society understanding. Only when both recognize the establishment of intent, lack of either, then negates the intent, but, as the case of accidents or negligence. If the perpetrator to a lack of awareness Elements elements directly negates the intent, founded accidents. Recognizing Elements elements under normal circumstances would mean recognizing the social harm, but in many cases there aretwo non-uniform, if the perpetrator recognize Elements elements, but the lack of awareness of the social harm when, as the case may set up delinquent. Under this law negates the problem of understanding is solved. Defense imaginary example:First, determine the perpetrator intentionally abstract Elements (the first level of intentional: Recognizing Elements elements) and the presumed perpetrator also recognizes the social harm of their actions, (recognizing Elements Elements+ Social Damage= second level of intentional), which is presumed he has deliberately (we usually refer to intentional). Actors include counter-examples to prove that he did not recognize the social harm and thus negates the intentional (commonly referred to as the second level of intentional). Deliberately layered understanding of the elements need to be stratified system constitutes understanding. Our system composed of elements of subjective and objective elements of the object can be used as an abstract constituent elements, the equivalent of three classes Elements System Elements compliance levels; our self-defense, the emergency and other legitimate ground can be equalto three classes The illegality of illegal negates; our main responsibility can be classified in class. In addition, the possibility of looking for the possibility of illegal cognition should also be legislation, and incorporated into the liability class. We can still use the four elements Elements system, but it should be understood hierarchical relationship between the various constituent elements. First, consider the first level of abstraction Elements (subjective, objective, object), followed by the second level considered legitimate ground (harmful to society and legitimate ground), and finally consider the responsibility of the third level (subject, expect the possibility of illegal cognition possibility). Elements of compliance with’ the law of class hierarchy under one of three sectors of both sides of the relationship, the same is true when layered understanding of the elements of the system structure, from deliberate double meaning can be corroborated. In the new understanding of our understanding of the wrong classification and attribution process, may wish to draw the three sectors under the principle of Elements imputation system, combined with China’s national conditions of China’s criminal law and jurisprudence derived both logical and reasonable attribution rules, to the administration of justice practice play a guiding role. Chapter three is on imputation of legal awareness error. If the "ignorance of the law, no exemption" position represents a means of social control utilitarianism required, then the law can avoid the wrong understanding of doctrine represents the responsibility to respect the rights of citizens. In order to pursue a balance between the two, most civil law countries to deal with the issue through the criminal law recognize errors legislation, common law countries by judges skilled techniques to achieve the purpose of the judicial doctrine of the responsibility to respect. Civil law countries generally recognize the illegality of error into the responsibility to study, but our criminal system does not distinguish between Elements and responsibility, therefore, illegal cognition in general is on the subjective components or the main elements in exploring. For its position, where the presence of intentional theory and theory of liability Commander, of course, fall under the responsibility of both the civil law theory, or the subjective element of criminal theories classified or classified as main elements, the status of illegal cognition is not The main problem, the key is to give an error in the legal understanding of the behavior of people in a reasonable attribution. This lack of appropriate legislative provisions of the Criminal Law, if China’s "Criminal Law" Section 16 can barely be understood as exemption provisions of the law recognize the error, then still a lack of responsibility for slowing the terms, it is difficult to make the appropriate provisions fromother explanation. In the face of a lack of legislative practice and theoretical guidance, the urgent need to expand the Elements of Crimes Elements of responsibility on the system to avoid the possibility of illegal cognition place, and give attribution provisions of legislation. Avoid the possibility of legal awareness of the responsibility of the wrong problem. How to determine the legal awareness of errors can be avoided, should be considered the perpetrator’s social status and personal abilities. In general, the perpetrator can be expected to use within the scope of their responsibilities capacity and within the scope of universal legal and ethical values, and illegal behavior can be determined if one can realize that the behavior (to have doubts as standard), then perpetrator efforts will bear query obligation consultation, criminal justice according to the degree required to objectively determine the facts and the behavior of people trying to identify and determine attribution.Chapter four recognize the imputation of funderstanding the facts wrong. Recognize the fact that errors are divided into specific facts wrong understanding of the facts and understanding of abstract error. For understanding the specific facts wrong and abstract understanding of error handling, extraterritorial criminal law theory says there has been compliance with specific, abstract conform to say and statutory compliance with said controversy. In China, scholars generally with subjective and objective principles of unity to solve the problem, but stressed that the perpetrator’s subjective guilt traditional presence in the constituent elements of the system, and therefore subjective and objective application of the principle of unity of subjective conviction easy to fall into the morass. This paper argued that the principle of unity of subjective and objective can be further extended the "subjective and objective imputation imputation parallel" and "subjective attribution to judgment" two specific way to judge. In subjective imputation, the judge objectively the behavior is consistent with the subjective process, in order to comply with the statutory criteria for judging said. If you set up deliberately, put the excess out of the objective situation coupled with an objective judgment, take a look at the behavior of people have no relevant duty of care. If negates the intent, the objective imputation methods used redetermination whole objective behavior, to see the perpetrator of the presence or absence of a duty of care overall objective circumstances, if any, set up delinquent, if not, do not set up a crime. Abstract understanding of the fact that the same is true error in judgment, but in compliance with applicable statutory say sometimes special circumstances, that is, within a "range" can also be admitted deliberately established. "Certain range" only constitute substantive elements of thecase can only be determined intentional overlap. Substantive standards are not coincident statute consistent with, but should be very existence of commonality legal interests and behavior commonality between different crime.Chapter five recognize the imputation principle of error cognition. Because crime is found in the subjective and objective activity, therefore, finds that the responsibility for criminal acts, we must respect the comprehensive subjective and objective aspects together with judgment and attribution of subjective and objective about the unification of criminal law, civil law theory of criminal law there has been a subjective and objective opposition, integration or compromise. China’s criminal law theory is the use of dialectics, the creation of the unity of subjective and objective principles of criminal law. Today, the civil law to objectivism based on the principle of compromise, said the unity of the subjective and objective had some impact. In fact, the subjective and objective imputation imputation advantages and disadvantages, but also have their own scope. Subjective imputation applies calculated crime, objective imputation applies to delinquents. Understanding of the problem is not solely attributable to the wrong question calculated crime, it also involves the problem of criminal negligence. Thus, in a single imputation methods, not completely solve the wrong problem understanding. For understanding the facts wrong, subjective and objective imputation parallel imputation principle of unity of subjective and objective principles can make specific, objective facts attributable specifically address whether the objective appears negates intentionally, deliberately, after negates the problem of how attribution. Whether deliberately negates involve subjective and objective elements Elements only established consistent intentional. But what needs to deliberate and consistent objective constituent elements, but also the extent to conform? This problem has developed specific accord that says abstract accord with the statutory accord said. Statutory comply say without violating the premise of the principle of legality, because the penalty for causing uneven situation can seek to explain the essence so as to achieve a balanced and to develop crime apply. Understanding legal responsibilities error doctrine responsibility principle reflects the relationship between criminal regulation tense standoff with the rights of the individual, from the analysis of the legal understanding of the root causes of errors. Type of thinking played a very important role in the understanding of the wrong attribution. Understanding of the facts and the law recognize error imputation principle should apply to different, can not fail to take into account the fact that the wrong understanding of the behavior of the subjective, and the law recognizethe error from the norm to consider illegal behavior of people avoid the possibility of understanding the meaning, rather to but not exactly the same as the ability of the Criminal Law of the responsibility. For understanding the fact that the wrong principles, subjective and objective imputation as an extension of the principle of imputation and close unity of subjective and objective principles from behavioral and subjective evaluation of criminal law point of view combine to solve the wrong problem, wrong understanding of the law Liability rationality behind embodied relations tense confrontation criminal regulation and individual rights.In short, the criminal law is a theoretical understanding of error controversial issue, but also a judicial difficult problems. From the theoretical side, the problem with the intent, fault, liability and other intertwined, but also directly concerned with the principle of the unity of subjective and objective understanding; in terms of criminal justice practice in terms of issues related to the fact that the error is endless, it concerning a pair whether imputation behavior, and how the problem of attribution. To investigate this issue, not only helps to deepen the theory of criminal law, but also contribute to the judicial practice of actors accurate conviction and sentencing, help to achieve justice.
Keywords/Search Tags:Recognizing error, subjective imputation, objective imputation, liability doctrine
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