Research On The "Knowledge" In China's Criminal Law

From the point of view of the principle of responsibility and the principle of consistency between subject and object,the establishment of a crime must require the actor to have a corresponding subjective crime.According to the provisions of China's criminal law,the subjective fault includes both intent and negligence.Meanwhile,according to the provisions of Article 14 of the 1997 Criminal Law,which is about the concept of deliberate crime,we can find that "knowledge" is an expression with "Chinese characteristics",which is an indispensable part of deliberate subjective crime.Through comprehensive and systematic study on the criminal legislation,the basic manifestations of “knowledge is obtained”,thus lies the text foundation and legal norms support for further exploration and analysis of the theoretical controversy and judicial issues which aroused by it.There are a large number of legal provisions related to“ knowledge” in Chinese criminal legislation,which has a large span of history and tends to be a little messy.Although inconsistencies still exist,it also has the feature of certain regularity and commonality.According to the difference between the main body of legislation and its authority,from the perspective of the three specific manifestations stipulated in the text of Chinese criminal law,namely,criminal code,criminal legislation interpretation and criminal judicial interpretation,it can be found that provisions related to "knowledge" are involved in all of the above.Studying the provisions of legal texts in criminal law from the perspective of time,it is found that since the founding of People's Republic of China in 1949,the two successively enacted and implemented criminal laws named as 1979 "Criminal Law" and 1997 "Criminal Law,have some provisions related to "knowledge".To further study,the term "knowledge" was formally adopted by our legislature since the 1979 Criminal Law,and it formally entered the field of criminal legislation in the form of criminal law and became a very important term of criminal law and theoretical category in the criminal code since then.This is also the first explicit use the term “knowledge” in the first enacted criminal code since the new China was founded.There are five provisions use the term “knowledge” explicitly in the 1979 Criminal Law and there are provisions about “knowledge” existing in both the General Provisions of the Criminal Law and the Specific Provisions of the Criminal Law at the same time.Among them,the term “knowledge” is used in the General Provisions of the Criminal Law once and in the Specific Provisions for four times.In the General Provisions of the Criminal Law,the term “knowledge” is used in the provision to define the concept of intentional crime.In the Specific Provisions of the Criminal Law,the word is used in the domain of specific intentional crime.It could be seen that no matter in general provisions or in specific provisions of criminal law,the word “knowledge” is used in the domain of intentional crime or criminal intent to make the connotation and the understanding of the word “knowledge” maintain consistency and coordination in the system of criminal legislation.In contrast,the number of provisions about "knowledge" and the frequency of use of the term increased significantly in the 1997 Criminal Law.To be more specific,in the 1997 Criminal Law and the following nine criminal law amendments revised and passed by the National People's Congress,the term “knowledge” is used in 37 articles,involving 38 criminal charges.Among them,there is one article about “knowledge” used in article 14 on the concept of intentional crime in the General Provisions of Criminal Law and there are 36 articles involving 38 criminal charges in the Specific Provisions of Criminal Law.In a broad sense,the Criminal Law includes separate criminal law and subsidiary criminal law in addition to the Criminal Code.The separate criminal law,which is the National People's Congress Standing Committee's Decision Concerning Punishment of Criminal Offenses Involving Fraudulent Purchase on 29 th December,1998,includes two references of “knowledge” in the relevant regulations about fraudulent purchase of foreign exchange.In accordance to the relevant regulations of the Specific Provisions of Criminal Law,“knowledge” in specific provisions could be summarized and classified into four categories by the standard of content and object of the “knowledge”: the knowledge of specific and special person(identity);the knowledge of definite thing and special thing;the knowledge of the state of specific fact;the knowledge of specific behavior.Through a comprehensive and careful review of the provisions involving “knowledge” in the 1997 Criminal Law,some problems could be found.The problems could mainly be reflected in the following aspects.Firstly,although the articles using the word “knowledge” exclusively wins an overall majority,the Article 219 of the Criminal Law on the charge of infringement of commercial secrets mixes the use of the expression of “knowledge” and “should know” and the mixture is under the same provision.The provision like this is the one and only which leads to the confusion of the expressive pattern of “knowledge” on the legislative level and triggers controversies in the relationship between “knowledge” and “should know”.Secondly,the provisions about “knowledge” do not only target at intentional crime but also criminal negligence.However,there is one and only reference to “knowledge” in the provisions about criminal negligence,which is the Article 138 of the Specific Provisions of the Criminal Law on the crime of major safety accident in educational facilities.The subjective requirement of the crime of major safety accident in educational facilities is negligence,as a result,it leads to the cross use of the term “knowledge” in the domain of intentional crime and the domain of negligent crime.The cross-use breaks the convention that “knowledge” is used in the both the general provisions of the criminal law and in the specific provisions of criminal law in the intentional crime domain,breaches the correspondence between the provisions involving “knowledge” in the general provisions and the specific provisions,and further triggers the controversial judgement debate about the charges corresponding to the use of the word “knowledge” and at the same time,initiates the debate on judgement of subjective fault caused by the parallel use of “knowledge” and “should know” in the Article 219 of the Criminal Law on the charge of infringement of commercial secrets.Thirdly,the 1997 Criminal Law use the parallel expression of “know and should know” in the Article 219 of the Criminal Law on the charge of infringement of commercial secrets only once.but in the following nine amendments of criminal law passed by the National People's Congress,the parallel expression has never been used again,which to some extent,exposes the problems of arbitrary,non-coherent and lack of systematic and long-term consideration of the criminal legislation on the term “knowledge”.The problems have triggered a lot of controversies on the use of “knowledge” in the criminal academic circles and in judicial practice sectors.In this regard,it is necessary to pay attention to the choice of the legislative model and the presentation of reasonable explanation.In addition,there are a large number of legal interpretations in China's criminal legislation system involves "knowledge" the provisions,which include the National People's Congress Standing Committee to make the interpretation of criminal legislation and as the highest judicial organs of the Supreme People's Court and(or)the Supreme People's Procuratorate's joint or separate release of criminal justice.In the interpretation of the known criminal legislation,"knowledge" is interpreted as two types including the knowledge and should know,which broke the criminal law provisions of the "knowledge" and "should know" side by side use the legislative model and the two Between the level of relations,making "should know" that "should know" has become a "knowledge" the next concept,triggering the conflict between the legislation and contradictions.The same problem also appears in a large number of known criminal justice interpretation provisions,"knowledge" and "should know" that should be seen between the chaotic dislocation,which not only intensified the criminal legislation within the system of contradictions and conflicts,The unity of the criminal legislation system,coordination and consistency requirements,need to give a reasonable explanation to resolve contradictions and conflicts to maintain the principle of reunification of the rule of law,in fact,also led to the knowledge of the judiciary and criminal certification and other related criminal law theory need to consider,so as to establish the correct understanding of the theory of criminal law and in the judicial practice in the accurate application.In the provisions of criminal legislation in our country,the vast majority of the provisions related to knowledge are the provisions of intentional crime,only one of the Article 138 of "Criminal Law" on the educational facilities of the provisions of the crime of major safety accidents,although the provisions contained in the "know " Words,but in the criminal law theory generally believe that the crime in the subjective sin can only be a fault rather than intentional.This leads to the controversy that the criminal law has theoretically questioned the subjective crime of "knowledge" and the subjective crime,that is,whether the "knowledge" is only embodied in the deliberate subjective crime,or there may be a negligent subjective sin.The traditional theory of criminal law generally holds that it is known as a deliberate factor,and therefore that the corresponding subjective sins can only be intentional,but that view can not reasonably explain that article 138 which contains a well-defined educational facility.The corresponding subjective sin is the fault of the legislative phenomenon and the theory of the crime is a category of negligence which has a common consensus on the theoretical point of view.At the same time,knowledge that the general principles of criminal law and criminal law in two areas of cross-minded,fault category to use,and thus broke the traditional criminal law theory according to the general and sub-correspondence between the corresponding,supplement the relationship between the general provisions of the provisions and sub-rules Knowledge the inherent position of the interpretation of the relationship,which makes the general knowledge that the provisions and sub-rules know the relationship between the problem and knowledgely and subjective crime relationship inherently intertwined.Thus,it is necessary to review and discuss the relationship between knowledge and subjective sins.In this regard,you can from the deliberate subjective crime category and negligence subjective crime category to study.In the intentional category,according to the provisions of Article 14 of the Criminal Law on the concept of intentional crime,combined with the criminal law scholars on the interpretation of this provision formed by a general consensus that we know that as a deliberate understanding of the existence of factors,The intentional subjective sin of the perpetrator.In fact,this understanding not only has the basis of legal norms of support,but also consistent with the original meaning and historical meaning,we can knowledge and intent the relationship between the historical origins to find "clues".From the historical dimension,it can be found that the historical evolution from "to" to "knowledge" to "knowledge" shows that the word "knowledge" begins with its appearance and establishes a direct,deep and close natural contact.With the follow-up and the daily language of the legal language,life,popularization,"knowledge" and then expand into the field of daily life,which also makes the "knowledge" and intent,in particular,its direct relationship with the direct intention of further Maintain and strengthen.According to the general principles and concepts of criminal law,the general principles and concepts of criminal law stipulate the understanding and application of the provisions of criminal law,which is based on the guidance and guidance of general and individual,abstract and concrete internal logic.Explain the criminal law of the sub-rule which contains a clear understanding of the specific provisions of the crime to provide a clear guide and logical support.In order to understand the problem of the relationship between the general provisions and the general rules of the subordinate category,we should think that it is more reasonable and proper to adhere to the view of "reunification theory" after careful investigation and in-depth analysis and repeated comparison of the different views of the criminal law theory.Correspondingly,the provisions of the criminal law of intentional crime in the nature of the provisions are "attention",that is,to remind the judicial staff attention to the provisions of the general provisions of the criminal law "knowledgely" reaffirmation and emphasis.According to this,criminal legislation on the intentional crime knowledgely made "explicit" know the provisions and "hidden" know the provisions of the legislative distinction,in fact,there is no essential difference.This divergent legislative phenomenon can be interpreted as an unintentional arrangement of legislative techniques on the cause.Combined with Germany,Japan and other civil law countries in the criminal law does not stipulate in the criminal law of the "knowledge" elements of the usual practice and as a reference,we can think that China's criminal law in a large number of provisions on the provisions of the legislation in the legislative level slightly "redundant More than ".Considering that this kind of slightly redundant "legislative" model has a certain special value that reminds the judiciary and its staff to pay special attention and careful study,from the maintenance of the current criminal legislation in terms of stability and authority,to keep the status quo.While it is not clear that this is not the whole of the relationship between the two sides,and there are still some differences between them,and it is necessary to see that this is not the whole content of the relationship between "knowledge" and "knowledge" the principle of "knowledge".That "criminal knowledge" in the "knowledge" in the scope of knowledge to be greater than the criminal law in the "knowledge";In the knowledge of the content,the former also far more than the latter,so that a more profound and comprehensive understanding and grasp the general principles of criminal law "knowledge" and criminal law "knowledge" the connotation of the relationship.In the deliberate subjective crime inside,because there are two types of direct intentional and indirect intentional,with "knowledge" the criminal law of intentional crime in the subjective sins can not rule out the possibility of the establishment of indirect intent;"knowledge the inevitable" type of cognitive factors corresponding the attitude of the mind can only be hoped rather than laissez-faire,and accordingly,it is considered to be more reasonable in the subjective sins.On the question of setting up deliberate intention,the relationship between “knowledge” and will element has to be mentioned and discussed.Actually,from a more macro perspective,behind this question is the debate between epistemology and intention,the theory without will element and the theory with will element,the theory with objective will element and the theory with subjective will element which in the field of intentional theory with the objectivism and subjectivism criminal theory.For this,after careful analysis,just according to cognitive factors,we can judge the deliberate theory of epistemology,the theory without will element and the theory with objective will element can't be established.It does not conform to the express stipulation of our criminal law and does not conform to the basic consensus reached by the interpretation of criminal law theory.Beside on this,the existence of " knowledge " does not necessarily set up intentional,the existence and proof of " knowledge " is only a necessary condition for the establishment of a deliberate intention but not a sufficient condition,nor is it necessary.From the perspective of criminal policy,like epistemology,the theory without will element,the theory with objective will element,those theories may be consistent with the purpose of criminal law which means expanding the sanctions,protecting society and legal interests,but easy to abandon the will of factors to determine and then reduce the deliberate intention establishment.It creates a necessary consequence of relaxing the deliberate intention's conditions,and it also will present a significant and realistic danger and potential threat to the defendant's human rights protection in de facto and judicial operations.Thus,simply based on the cognitive factors as "knowledge" cannot decide to set up deliberate intention,adherence to the necessity and importance of the existence of will factors still has indispensable meaning to deliberate identification.The necessary elements of will elements should be maintained and adhere to,not only in the law,but also a solid criminal law theory support,meanwhile it also reflects and abides on the careful consideration of the position by the criminal policy which in the rational sanctions.In the negligent subjective crime category field,in order to juggle and take account of realistic legislation exists which are ruled by "Criminal law" Article 138 of the "major facilities of educational facilities" ‘s "knowledge",it's necessary to discuss and analysis the relationship between knowledge and negligence subjective crime.Judging from the knowledge's express range which is modified by Article 138,the knowing,which is limited to the dangerous state of schoolhouse or educational facilities,behaves like an epistemological status to objective facts in the content and essence.This "knowledge" provisions actually don't interpose fundamentally the logical structure and constituent of this crime's negligence subjective crime,so although it uses the same word as deliberate crime's “knowledge”,but It is still possible to establish the subjective guilt of the negligence by the examination of the will factor.Accordingly,knowledge and negligent subjective sins have established a certain degree of indirect connection at the level of fact.To say the least,even if it is recognized that knowledge is the part of the cognition factor of negligent crime in the logical structure of the "major facilities of educational facilities" establishes the negligence subjective crime,by examining,comparing and analyzing the relationship between the "foresee" and the "knowledge" words in the provisions of Article 138 of the Criminal Law on the provisions of the criminal law,we can find out the "knowledge" and " foresee" has a convergence,in the meaning and scope of "knowledge " contains " foresee ".Accordingly,the " knowledge " in the provisions of Article 138 of the Criminal Law can exist as the nature of the cognitive factors of negligence,and then establish the view that it can reflect the negligence of subjective crimes.Considering thoroughly from a broader perspective,and thinking combined with systematic methods,in the context of the subjective sins of two types of guilt that contain intentional subjective crimes and negligence subjective crimes,the "knowledge " in the provisions of the criminal law does not necessarily reflect intentional subjective crime and then set up a deliberate crime,it may be a negligent subjective crime and then set up a negligent crime.Accordingly,in order to juggle and take account of realistic legislation exists which are ruled by "Criminal law" Article 138 of the "major facilities of educational facilities" 's "knowledge",limited to the general meaning within the scope of the provisions of the provisions and sub-rules that the provisions of the "unified theory" point of view,no longer have the degree of extension and versatility.For the purpose of knowing the corresponding negligence in Article 138,the general knowledge of the general principles of criminal law is used in the intentional category,and it is clear that the general provisions in the will-category do not clearly regulate and guide the interpretation of the well-known provisions in the negligent offense,The provisions of the provisions of the provisions of the criminal law can't apply to the general provisions of the crime of intentional understanding and application.At this point,in the subjective crime category,the relationship between the general knowledge and special knowledge should be adhered to "distinction" view is more appropriate,comprehensive and rigorous.In the intentional category,the knowledge in the general provisions of the criminal law guide the understanding and application of the knowledge in the special provisions of criminal law.Thus,it is necessary to discuss the content of the general provisions of criminal law.There are different criminal law theories on the content of the knowledge in the general provisions of the criminal law.In this regard,after careful sorting,comparison and analysis,it should be considered that the content of the knowledge in the general provisions of the criminal law should include the act,the result and the causal relationship between the act and the result in the objective constituent elements,the specific object of the crime or the object of the act.At the same time,it is also clear that in the intentional category,all elements of the subjective elements do not require criminals have knowledge,that is,the subjective elements of the elements do not belong to the knowledge in the general provisions of the criminal law,which means that the purpose of including criminal purpose,the motive of crime,age of criminal responsibility,criminal responsibility,and other elements of the subjective elements are not the content of the knowledge.However,the question of cognition for identity requires a distinction between the specific nature of identity,that is,whether the specific identity under the criminal law affects and determines the establishment of the offense,which is defined as the status of conviction and sentencing.Whether it is convicted status or sentencing status do not need the subjective existence of knowledge,that is,the identity does not belong to the objective elements of intentional crime but subjective elements.In essence,the mandatory provisions of the law and the judiciary after the evaluation are not the content of knowledge.At the same time,knowing that the required by knowledge does not include the cognition of the object of the crime,the protection of legal interests,but the need for the criminal to recognize that there is no legitimate defense,emergency shelter,etc.to exclude social harm or legal reasons.In the knowledge‘s content,for the behavior of the criminals need to recognize the acts,results,causality and other content,especially in the category of intentional acts of intentional omission for the omission,for the frequency of behavior that China's criminal legislation "many times" and other issues,in the scope of the results related to awareness problem of the results of aggregated consequential offense still need to be further analysis to establish a more reasonable conclusion.At the same time,combined with China's traditional theory system of criminal law,there are still some the "Chinese characteristics" problems need to be concerned about and analysis,such as the relationship among knowledge? individual understanding,and "class" understanding,the relationship among knowing and narrative elements of the elements and norms of the elements,and the relationship between knowledge and the criminal legislation model of "the legislator's established and quantitative" in the concept of crime in our country.In addition,as the German and Japanese three-class crime constitution theory and its knowledge pedigree gradually enter the Chinese criminal law theory and get further developed,disseminated and influenced,some criminal law concepts,theoretical categories of German and Japanese criminal law theoretical knowledge system slowly penetrate into China's criminal law theory research and judicial practice,and spark some thinking and theoretical disputes.Combined with the study topic of this paper and its internal relevance,profound ponders and analysis need to be carried out in the relations of knowledge and objective punishment conditions theory,relations of knowledge,special cognitive and objective attribution theory and other theoretical categories,so as to more fully define the know.Different from understanding factor of intent in German and Japanese criminal law theory,in the scope and content of knowledge,it is limited to the elements of the constitution or the facts of the objective component.While the knowledge of the intentional crime in general provisions of the criminal law in China,includes the factual understanding and the value evaluation understanding,the former is the factual judgment,the latter is the value judgments.In the field of evaluative cognition,the most distinctive manifestation is the theoretical view of social harmfulness that China's traditional criminal law theory insists on.In addition,there are illegal understanding of the point of view,there have been opposition and controversy between the two points.Through a comprehensive study and a serious look at the theories of the necessity of knowledge of illegality and the unnecessity of knowledge of illegality,it should be considered “the necessity of knowledge of illegality” must be reasonable and appropriate.Under the premise of insisting on the necessity of knowledge of illegality,we must clarify the relationship between the knowledge of social harm and the knowledge of illegality in the traditional criminal law theory.Among the opposing views of "the same theory","distinguishing theory","choosing one theory" and other theory in the criminal law scholars,we should adhere to the view of "distinguishing theory",that is,the perpetrator should be required to have knowledge of illegality,and not to have knowledge of social harm.In fact,there is a certain difference between the knowledge of illegality and social harm,which essentially should be the difference between the knowledge of essential illegality and knowledge of formal illegality.Here the knowledge of illegality should refer to the knowledge of formal illegality,and the knowledge of social harm corresponds to the knowledge of essential illegality.For the traditional criminal law theory insists on the view of knowledge of social harm,we should replace the knowledge of social harm with the knowledge of illegality,while properly dealing with the knowledge error of illegality,especially criminal liability in the inevitable knowledge error of illegality case,and we should persist and implement the inner requirement of the responsibilitism and humanitarianism,and actively promote and advance the transformation of China's criminal law theory to the standardization and logicalization.On the basis of clarifying the basic connotation and content of "knowledge" in the category of intent,how to define the degree of "knowledge" is a problem.The so-called the degree of "knowledge",in fact,that is,in the intentional crime,for the subjective cognition of the object,what the extent of “knowledge” the perpetrator needs to meet,which is more specific,concentrated reflected in China's judicial cognizance and criminal proof in the “knowledge” of branch of criminal law.Around the affirmation of “knowledge” of the specific accusation in the branch of criminal law,there are many different legislative models in the criminal legislation,especially the criminal legislative interpretation and criminal judicial the interpretation.The main practice is to insist that the “knowledge” should be defined as "know or should know",and there are many different views and controversies in criminal law theory.In this regard,after a comprehensive comparison and analysis,we should insist that the point of "know or presume to know" is more reasonable.On the basis of summing up the regularity and common characteristics of the judicial cognizance of knowledge,it can be found that the presumption,especially the criminal presumption in the criminal law category,has been substantively applied to judicial practice in a large-scale,and has been further expanded.In this regard,from the perspective of legitimacy and rationality,the paper needs to analyze and establish the lawful basis of presumption applied to the judicial practice,so as to digest the theoretical challenges and judicial barriers,confirm the tool or means of presumption applied to the knowledge of criminal proof.At the same time,but also to face and focus on the presumption which is based on similarity,probabilistic link,may inevitably have deficient and disadvantages of probability,contingency,uncertainty,etc.Thus,on the basis of emphasizing to fight against crime in order to realize the value of social protection,we must attach great importance to the defendant's human rights protection to safeguard his or her legitimate rights and interests.Therefore,it is necessary to further improve the setting and applying of presumption and build a supporting system of system design in the field of criminal justice,especially in the criminal proof,that is,we must adhere to the principle of direct proof priority and the principle of forcing to apply presumption,strictly and prudently applying presumption and preventing blind generalization and wanton abuse;we must further clarify the main body and legal basis of presumption and improve the legislative level;It is necessary to further clarify the distinction between legislative presumption and judicial presumption,to strengthen the former,to restrict the latter;we should reasonably the legal presumption and the factual presumption,and promote the further standardization,legalization and clarification of the presumption establishment;we should establish and perfect the substantive and procedural security norms of presumption in judicial proceedings,especially for the defendant side we must further strengthen the rebuttal of the substantive rights protection,the exercise of procedural safeguards,relief channels,etc.;We should properly consider to establish and improve different level standard of proof and the corresponding distribution of burden of proof mechanism,or on the basis of maintaining the existing standard of proof system,we may consider to reduce the strength and standards of proof for the specific unproven facts or legal special objects of proof;we should concentrate on seeking alternative methods of proof of presumption,such as the establishment of legal principles,legal fiction,etc.,as far as possible to limit and reduce the scope and fields of application of presumption,so as to eliminate the risk of arbitrary presumption,to resolve human rights protection concerns.On the basis of the above-mentioned system establishment and perfection of presumption,we should apply presumption in a reasonable and proper manner so as to achieve the purpose of combating crime in order to protect society,legal interests and purpose of safeguarding the legitimate rights and interests of defendants in order to protect human rights,so as to achieve the unification,coordination,balance of purposes,tasks and missions.