The Research On The Relationship Between The Awareness Of Illegality And Criminal Intent

The issue of this article for study is the relationship of the illegality cognition & the tenableness of the commitment premeditation that is elemental in the theory of commitment component and the theory of commitment premeditation. In addition, the issue is also the key in resolving the following two problems: the first is the tenableness component of commitment premeditation and even the establishment of the theory system of commitment component in the theory of criminal law; the second is the conviction and measurement of penalty of premeditation commitment in the criminal judicial practice, therefore, the theory circle of criminal law and the judicature circle of criminal law home and abroad have always been paying close attention to the issue. Meanwhile, the essential heart of the issue is whether the illegality cognition is the important condition of the tenableness of commitment premeditation, that is, whether the illegality cognition errors can limit the commitment premeditation.Around the above-mentioned two problems, the six different theories are formed in the criminal law circle of the continental law school——the negation theory of illegality cognition, the distinction theory of natural criminal & legal criminal, the strict theory of premeditation, the quasi-premeditation theory, the restriction premeditation theory and the responsibility theory. Meanwhile, the three major theories are also formed in China, i.e., the negation theory, the affirmation theory and the eclecticism; furthermore, each major theory can be concretely divided into several minor theories. The theories are numerous in study circle, but this article summarizes the four essential key problems of forming the controversy of these theories through systematizing and analyzing these theories: (1) the content of the illegality cognition; (2) whether the illegal cognition is the important condition of the tenableness of commitment premeditation; (3) whether the social harmfulness cognition is the important condition of the tenableness of commitment premeditation; (4) how to judge the existence of the illegality cognition in the criminal judicial practice. Accordingly, we can say that the issue of this article for study, the relationship of the illegality cognition & the tenableness of the commitment premeditation will be resolved as long as the four problems are settled.Then, this article respectively explains the above-mentioned four problems.(1) As for the content of the illegality cognition, this article points out that different scholars have certain controversy on understanding the content of the illegality cognition either from the broad sense or from the narrow sense, but each scholar generally holds identical views on the sequence of the illegality cognition limiting the commitment premeditation. Consequently, how to understand the content and range of the illegality cognition is not the problem of "right or wrong", but more does conform to the inner logical relationship of the law system and the outer logical relationship of the law standard and other standards. In reality, no matter which aspect we consider from, it is reasonable that we take the cognition of breaking the law standard as the content of illegality cognition.(2) As for the issue whether the illegality cognition is the important condition of the tenableness of commitment premeditation, this article points out that the commitment premeditation is not the concept in the general psychological sense, but a term of the criminal law of depicting the form of crime, therefore, the commitment premeditation is integrated of the psychological truth of premeditation and the standard and evaluation of premeditation, the depiction of the standard and evaluation element of premeditation is just the illegality cognition. In addition, from the dual function of the criminal law of guaranteeing human right and protecting society and the value orientation of the criminal law of moderation, the illegality cognition ought to be the proper condition of the tenableness of...