Comment On Illegality Cognition

Illegality cognition has been a hot issue in Continental Law System countries and is also a basic question of the theory of criminal law.This article aims to explain illegality cognition. First,the paper analyzes the connotation of illegality cognition,which provides with a premise for discussing the whole article.Second,this paper introduces the various theoretical opinions on illegality cognition,and demonstrates that illegality cognition is the necessary condition of criminal intention.Then this paper discusses the status that illegality cognition hold in the criminal system and cognizing standard of illegality cognition.In this article, mainly using the method of analysis and comparison demonstrates the viewpoint of the article. This paper consists of five chapters.Chapter one:the connotation of illegality cognition.To begin with,this chapter introduces the various opinions on illegality cognition of continental legal system countries and our country.The debating focus of various opinions is that it is different to understand the "law" in the "illegality".The understanding of "law" in the "illegality" of continental legal system should be abstract and general.Base on correctly understanding of "law",we can know that illegality refers to break the general legal order and infract the general legal interest. And then,this chapter further analyzes the relationship between formal illegality and substantive illegality,and points that illegality cognition refers to cognition of substantive illegality,which concluded that the illegality cognition of continental legal system is the social harmfulness cognition in criminal theory of our country.Chapter two:the relationship between illegality cognition and intention.This chapter includes 3 parts:(1) Part 1 introduces and comments on various theoretical opinions concerning illegality cognition in continental law system.(2) Part 2 comments on diverse theoretical opinions in terms of illegality cognition in our country.(3) Through analysis and comparison,I think that the illegality cognition is the necessary content of criminal intention in the criminal theory of continental legal system countries and our country.Chapter three:identification of illegality cognition.This is the difficult of this paper, including three parts.Firstly,it discusses identification criterion of illegality cognition.I adopt the viewpoint of Professor Chen that the identification criterion should be concluded in three states:(1) the people who take action know that their behavior are negated by the community;(2) the people who take action recognize that their behavior are prohibited by law; (3) the people who take action know that their behavior are unwilling to be accepted by the victims.As long as the people act with one recognizance of the above,they possibly have the illegality cognition.Besides,they have illegality cognition depend on the acts that they take are harmful to society.Secondly,it discusses the approval methods—presumption. Presumption shall be based on common sense and facts,circumstances while behaving. Furthermore,the recognizing level of the people who take action shall be the identification criterion.Thirdly,this part introduces the states that exclude illegality cognition.Chapter four:the status that illegality cognition holds in the criminal law system. Continental legal system on this issue,there are two opposite opinions:Illegality cognition holds in the criminal intention and illegality cognition holds in the responsibility.Because criminal constitution system of our country is different from continental legal system countries,illegality cognition is the necessary content of criminal intention in our country criminal legal system.Chapter five:replacing social harmfulness cognition with illegality cognition is necessary or not necessary.We know,through the above discussing,that illegality cognition in continental legal system is consistent with social harmfulness cognition of our country is in the meaning and function,so I think that illegality cognition replacing social harmfulness cognition is not necessary,and I put forward five reason for my opinion.