On Supplementary Status Of The Illegal Cognition In Criminal Intention

Illegal cognition is a major issue among Continental Law countries, and also a hotly-debated theoretical topic among criminal law scholars in recent years. This issue will directly affect the positioning of criminal legislation and judicial development. The key contentious point is to understanding the relationship between illegal cognition and faulty action, i.e., whether the illegal cognition constitutes a key element of intentional crime. What constitutes the illegal cognition? What is the relationship between illegal cognition with social harmfulness cognition? This paper starts with the general principles of criminal responsibility, and explore further on the illegal cognition. The main body of this paper is divided into four chapters, besides the introduction section and the conclusion part of this paper.The first chapter starts from "Ignorantia juris non excusat" - the old Roman law principle, and analyzes the impact of the principle and its development process, then introduces the different theoretical understanding in China regarding the illegal cognition, analyzes the cause of the problem which includes not only the limitations of the legal text itself, but also different interpretation of the legal texts by different readers.The second chapter analyzes the theory, practical foundation and nature of social harmfulness cognition, with elaboration on its positioning among criminal elements, i.e., social harmfulness is the fundamental characteristics of a crime, and social harmfulness cognition is the necessary element of a crime, and social harmfulness cognition is a principal factor in intentional crime. This chapter also analyzes comparatively the consistency and difference of the illegal cognition and the social harmfulness cognition, with stress on different weights in intentional crime. The third chapter is the focus and core of this paper, which defines the systematic position of illegal cognition in our criminal composition. First, this chapter summarizes and analyzes different opinions of Chinese criminal law as well as continental laws regarding illegal cognition, then draws conclusion regarding the nature and scope of illegal cognition, points out that there exists some theoretical weakness of considering illegal cognition as the contents of criminal intention and illegal cognition is not to be considered as contents of criminal intention. This paper also stresses the need to reevaluate the position of illegal cognition in criminal intention, i.e., its complementary value in determining criminal intention and as a key supporting in determining criminal responsibility. The key issue when considering illegal cognition lies in the hierarchical positioning when judging whether the crime is conducted.The fourth chapter sets out the standard and degree of judging illegal cognition, as well as how to judge what's the exception, thus making this issue comprehensive from theoretical perspective and practical from judicial practice perspective.