The Study On The Knowledge Issue Of Criminal Intention

According to the Criminal Law of People's Republic of China,intentional crime refers to “an act committed by a person who clearly knows that his/her act will entail harmful consequences to society but still wishes or allows such consequences to occur,thus constituting a crime”.The Criminal Law of our country stipulates that the cognitive factor in the criminal intention is "knowledge ".So knowledge plays an important role in the cognizance of criminal intention.This paper is to study what is knowledge,the content of knowledge,the extent and the standard of knowledge,and how to prove it,etc.First of all,it is necessary to clarify the concept and characteristics of knowledge,and the knowledge's status in the criminal system.The concept of knowledge(Ming Zhi in Chinese),if it is restricted to its literal meaning,refers to the scenario that the doer knows the facts clearly.However,scholars may find it controversial to decide whether the concept of knowledge includes the scenario of "knowing the possibility" and "having the responsibility of knowing".By adopting methods of systematic interpretation,historical interpretation and comprehensive analysis,this paper suggests that the “Ming Zhi” should be discussed character by character.“Ming” refers to “knowing but still do” instead of “knowing clearly”,which emphasizes the deliberate intention.Only by perceiving knowledge in this way can the degree of knowledge and the standard of knowledge be discussed.Moreover,because of the difference in criminal constitution theory,the systemic positioning of cognitive factors is also different.In China,knowledge is subjected to the concept of intentional crime.According to the criminal law of China's mainland,every level of the three levels of criminal system takes the different factors of knowledge into account.In this sense,to understand different criminal systems makes it possible to discuss the knowledge of illegality under different criminal laws.Secondly,the paper aims to discuss the content of knowledge,which includes the knowledge of facts and evaluative knowledge.In terms of the knowledge of facts,major controversy exists in whether the subject of crime and object of crime should be recognized.This paper believes that the knowledge of facts should be limited to the objective aspect of crime rather than including the subject and subjective aspects.Minor controversy on knowledge of facts exists in what objective elements that constitutes a crime should be recognized.This paper categorizes those objective elements into facts reflecting behaviors and facts proving harmful results,and supports to include all the objective elements into the content of knowledge.By discussing from the perspective of the substantial safety and the practicality of the law,this paper draws the conclusion that factors such as quantity and frequency causation rather than causation are included in the content of knowledge.Another aspect of the content of knowledge is evaluative knowledge.The general sense of evaluative knowledge includes the cognition of social harmfulness and cognition of illegality.In the Chinese academic circle,there is a fierce controversy on what kind of knowledge constitutes the prerequisite of crime intention.When it comes to the meaning of “law” in the context of knowledge of illegality(violating the law),there are several different theories under the law system of China's mainland,such as the knowledge of violating the “pre-law”,the general law,and the criminal law.As the substance of the law,the “pre-law” contains ethical and moral factors.It has to be approved by legislation if it aims to be legitimate in form.Moreover,whether “common conscience” could be realized is a question in relativism philosophy.Between morality and law,therefore,law should be the first meaning of the knowledge of illegality as it has the advantages of constancy,predictability,and formal presence when compared with the former.In the context of the formal law,the violator is regarded to have psychological preparation for shouldering legal responsibilities as long as he/she recognizes what he/she dose breaks the law.Provided the protection and prevention mechanism of law,the general law should be a further choice in perceiving the law in knowledge of illegality.However,this papers does not stand on the right opposite of the knowledge of social harm.Social harm is equivalent to the substance of illegality,which focuses on the substance of criminal behaviors.Legislator can decide the scope of social harm but in the process of executing the law,the rationality in forms is superior to rationality in substance.Therefore,among the four prerequisite factors that constitute a crime,the knowledge of illegality should be requirement of intentional crime.The degree of knowledge aims to discuss the doer's evaluation on the possibility of the occurrence of the facts that constitute a crime.This paper emphasizes on the analysis of the general cognition among all the knowledge of uncertainty and proposes a different point of view than those popular ones.The popular opinions believe the doer knows clearly about the result but not so about the objective,whereas this paper believes that the doer is certain about the result,which is regarded as the knowledge of social harms.In terms of specific result,general knowledge of intentional crime can only know the result which may entail harmful effects,but as the result may lead to different effects,the doer may only know the possibility of a harmful effect instead of the certainty.In this analysis,the general cognition has three dimensions--uncertainty on content,uncertainty on degree,and knowledge of illegality.When theory applied to practice,the theory of general cognition should be introduced into drug trafficking,in which scenario,the crime is confirmed as long as the doer knows clearly on what he/she transports is illegal and turned out to be drugs.Some scholars believe that the possibility of knowing also means knowing,but knowing the possibility is different from the possibility of knowing.If the doer probably knows what he/she transports is drug,then it has a possibility of not knowing it's drug.In this sense,the degree of general cognition is lower than intentional cognition,thus the doer of general cognition deserves a lighter penalty when convicted.According to the subjective and objective relative standard,the standard of knowledge is to discuss to which degree the cognition is in accord with the objective facts.In this part,the author applies the theory of error in discussing the standard of knowledge.The author believes that although the doer's cognition does not completely comply with the objective facts,it will not influence the judgment on an intentional crime.One of the purposes of the error theory is to find what "error" is negligible.As the standard of knowledge,error theory has the function of selecting.It helps to divide errors into those of legal significance and those none,on which basis can help to decide the knowledge of legal significance.Secondly,the author discusses the specific types and principles of factual cognition error.This error can be divided into typical factual errors and untypical factual errors.In the typical factual errors,the author focuses on classification of combat error.In the end,the author introduces several typical cases on the relationship between illegal cognition error and the cognizance of knowing.The final part aims to explore how to prove knowledge by discussing certain methodology.First of all,it introduces the direct proof and indirect proof method and presents as existing difficulties in proving knowledge.The most prominent feature of this part is the adoption of inductive method based on a large number of cases.Secondly,this paper abandons the traditional mode when solving dilemmas.The traditional mode mainly adopts such methods as lowering proving to presumption,amending the criminal law to reduce facts that need to be proved,and combining the previous two.The author believes that as the subjective aspect of the crime,knowledge should be proved in the following three aspects: the first is the change of methodology,namely transformation of the mode of thinking,which include the transition from confirmed mode to the subjectively free proof mode and the categorizing thinking mode;the second is the diversification of proving methods,including advance the objective evidence,adopting modality evidence and other indirect proof methods;the third is to encourage the suspect to confess by informing such policies as be lenient to those who voluntarily confess,and in so doing to prove knowledge.