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Interpretation Of Unrechtsbewuβtsein In China's Context

Posted on:2011-06-02Degree:DoctorType:Dissertation
Country:ChinaCandidate:T LiFull Text:PDF
GTID:1116360305453839Subject:Criminal Law
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Instead of Unrechtsbewu?tsein, knowledge of social harmfulness is stipulated in China's criminal substantial law, which makes Unrechtsbewu?tsein a titile with strong theoretical interest in China. Even though, research on Unrechtsbewu?tsein is still of great significance for deepening our cognition, providing materials for a new system of ingredients of a crime and proper confirmation method of Unrechtsbewu?tsein could reverse to some extent bias to it. This thesis includes six parts, namely preface, the historical transition of valuation cognitions, the concept of Unrechtsbewu?tsein, the systematic position of Unrechtsbewu?tsein, Verbotsirrtum and the confirmation of Unrechtsbewu?tsein and its possibility.Preface, as the first part of this thesis, illustrates the origin of the thesis title, the goal and significance of the subject research, key viewpoints of the thesis and its research methods.The historical transition of valuation cognitions, as the second part of the thesis, focuses on comparative investigation of the transition of valuation cognitions from the time and space viewpoints, which consists of three sections.The first section of the second part talks about the ancient society patterns of valuation cognitions. Beginning with the ancient Rome maxim"Ignorantis legis non excusat.", it probes into its theoretical and judicial practical reasons. Then the ideal debates on valuation cognitions of ancient China is introduced, including legal attention of Legalists implying their confirmation of Unrechtsbewu?tsein, Confucianists's substitution of Unrechtsbewu?tsein by cognition of ethics which is similar to natural law, opposition of valuation cognitions by Taoist. Due to the long term domination in Chinese political life of Confucian thoughts, ancient China's legislative practice embodies negation of Unrechtsbewu?tsein and implies confirmation to Confucian ethics. This is true and it is indispensible from these three factors: great influence to political life of ancient China's society by Confucianists, people's acceptance and self-identity of mainstream ethics and attention to legal publicity of government in ancient China.The second section of the second part is about the patterns of valuation cognitions in pre-modern and modern society. In common law family counties,flexibility to legal mistake arises since the commencement of the twentieth century, especially the emergence of legislative and judicial exceptions of America. Also, Unrechtsbewu?tsein is accepted at different degrees in civil law tradition countries, such as Germany, Italy, France and Japan. Deeply influenced by western countries during the transition from pre-modern society to modern society, China also accepts Unrechtsbewu?tsein to some extent.The third section of the second part discusses emergence prerequisites of Unrechtsbewu?tsein. Unrechtsbewu?tsein is a true problem only in pre-modern and modern society where law becomes a valuation system independent from ethics, morals and religions and subjective fault is necessary to punish a person. The concept of Unrechtsbewu?tsein, as the third part of the thesis, focuses on discussion of theoretical basis and connotative confirmation of Unrechtsbewu?tsein, constituted of three sections.The first section of the third part discusses theoretical basis of Unrechtsbewu?tsein. It roots on four pieces of basis, namely, necessary extension of the legal principle of crime and punishment, inherent requirements of Normative Schuldlehre, logic premises of Normierende Funktion of criminal law, and necessity of general deterrence.The second section of the third part discusses premise concepts of Unrechtsbewu?tsein."Juris"in Unrechtsbewu?tsein should be a notion of integral and perceptional sense,"anti-"in Unrechtsbewu?tsein should be"against"instead of violating, valuation object of Unrechtsbewu?tsein should be action and the constitutional consequence it brings, and Rechtswidrigkeit differs from Unrecht. Some other theories on Rechtswidrigkeit are discussed, such as formelle Rechtswidrigkeit and materielle Rechtswidrigkeit, subjektiven Rechtswidrigkeit and objektiven Rechtswidrigkeit, Handlungsunwert and Erfolgsunwert etc.The third section of the third part discusses content of Unrechtsbewu?tsein, e.g. its connotation. Combined with value premises of Unrechtsbewu?tsein confirmation, theory of anti-criminal regulations among all the theories should be taken by analysis and Unrechtsbewu?tsein be defined as knowledge of anti-criminal regulation by action and the constitutional consequence it brings. Later, Unrechtsbewu?tsein is considered as foundation of knowledge of social harmfulness through relationship between phenomenon and essence and inter-subject communication channel of philosophy in that the latter dependents on the former and the former replaces the latter.As the fourth part of the thesis, the systematic position of Unrechtsbewu?tsein discusses systematic position of Unrechtsbewu?tsein in constitution of crimes, taking three pairs of relation between Unrechtsbewu?tsein and other concepts as breakthrough points, and thus be divided into three sections.The first section of the fourth part is about relation between Unrechtsbewu?tsein and intention. Among all theories, Strenge Vorsatztheorie suits for China's theoretical backgrounds, and Unrechtsbewu?tsein be taken as necessary normative ingredient of criminal intention.The second section of the fourth part is about relation between Unrechtsbewu?tsein and negligence. This thesis is for the viewpoints that taking Unrechtsbewu?tsein as normative ingredient of conscious negligence, taking possibility of Unrechtsbewu?tsein as normative ingredient of unconscious negligence, handling legal negligence as negligence crimes and treating Unrechtsbewu?tsein and its possibility as junction between subjective Sorgfaltspflicht and objective Sorgfaltspflicht of negligence.The third section of the fourth part is about relation between Unrechtsbewu?tsein and Schuldf?higkeit, Zumutbarkeit normgem?ssen Verhaltens. It is no doubt that Schuldf?higkeit should be taken as foundation of Unrechtsbewu?tsein and also that Unrechtsbewu?tsein be held as premise of Zumutbarkeit normgem?ssen Verhaltens because the latter exists only with the former and its possibility. As the fifth part of the theis, Verbotsirrtum discusses situations without Unrechtsbewu?tsein, consisting of two sections.The first section of the fifth part is on the concept of Verbotsirrtum. Through investigating mistake's changing progress, Verbotsirrtum is held as the mistake as to whether one's action is forbidden by criminal law with his right understanding to objective fact. Some concepts related to Verbotsirrtum are also discussed.The second section of the fifth part discusses some specific types of Verbotsirrtum, such as Direkter Verbotsirrtum and Indirekter Verbotsirrtum, avoidable Verbotsirrtum and inevitable Verbotsirrtum, ignorance of law and mistake of law, and focuses on Erlaubnistatbestandsirrtum, such as Putativnotwehr. Putativnotwehr is held to be negligence crime or accident instead of intentional crimes under China's theoretical background.As the last part of the thesis, the confirmation of Unrechtsbewu?tsein and its possibility deals with a difficult point of the Unrechtsbewu?tsein theory, and consists of two sections.The first section of the last part is about the confirmation of Unrechtsbewu?tsein. Taken factors influencing distribution of burden proof into account, this thesis holds that the prosecution should bear burden proof of Unrechtsbewu?tsein, which presumptions can be employed to lower the difficult during testifying. Instead of one hundred percent certainty, certain possibility suffices for the testifying standard of Unrechtsbewu?tsein and knowledge of Unrechtsbewu?tsein can be understood flexibly.The second section of the sixth part discusses the confirmation of possibility of Unrechtsbewu?tsein. Due to rare chance of impossibility of Unrechtsbewu?tsein and great chance of its happening, the thesis turns to the confirmation of inevitability of Verbotsirrtum. Verbotsirrtum is inevitable only when the doer has no chance to challenge the Rechtswidrigkeit of his actions or Verbotsirrtum still happens after his cherishing the chance and making full use of it. Under all other conditions, Verbotsirrtum is avoidable, that is, possibility of Unrechtsbewu?tsein exists.
Keywords/Search Tags:Unrechtsbewuβtsein, criminal law regulations, knowledge of social harmfulness, intention, presumption
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