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Try Commenting On "the Knowledge Of Illegality"

Posted on:2011-01-24Degree:MasterType:Thesis
Country:ChinaCandidate:B W FangFull Text:PDF
GTID:2166360305481237Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Whether the subjective conditions of "knowledge of illegality" is essential for the perpetrator constituting a crime, that is if the lack of "knowledge of illegality" obstructing the establishment of criminal intent or not, is always the focus of foreign criminal laws. Although this subject is concerned in recent years in China, scholars have not formed a coherent point about it. From the aspects of the "knowledge of illegality" concept, the status of "knowledge of illegality" in the criminal intention, the relationship between"knowledge of social risk"and "knowledge of illegality", the judicial determination of social risk and so on, by comparing analysis ,this author express his own points on this issue. The paper is divided into four parts: the first part is expressing that "knowledge of illegality" is"knowledge of social risk", the second part is expressing that "knowledge of illegality" in Civil Law and China's criminal law, the third part concerns that knowledge of social risk is an element of crime intent, the forth part is concerned the judicial determination of the social risk . The total paper is about 30,000 words.The first part proposes the point that "knowledge of illegality" is equal to knowledge of social risk. The author considers that "knowledge of illegality" in Civil Law is different from what China's criminal law scholars always discuss about, that's the really reason why the author puts in inverted commas when using this concept. "knowledge of illegality" in Civil Law means the actor's awareness of his act is not allowed by holistic and abstract and sense of value legal order when he is committing an action, that is what the same as"knowledge of social risk"in China. Because of the different expressions, most scholars of China's mainland directly put the "illegality" equivalent to the criminal illegality, thereby they consider that "knowledge of illegality" is always equivalent to the "knowledge of criminal illegality". In the author's point, whether from the aspect of crime constitution system in Civil Law, or from China's actual situation, or from the point of protecting citizens'rights, "knowledge of illegality" can only be explained as knowledge of substantive illegality, that is knowledge of social risk.The second part mainly introduces and analyses the status of "knowledge of illegality" in Civil Law, as well as in China. The theories about this issue in Civil Law are followings: the theory of not requiring knowledge of illegality; the differentiation between naturally criminals and statutory criminals, the theory of strictly intentional, the theory of Quasi-intentional, the theory of "the possibility knowledge of illegality "and the theory of responsibility. In the author's view, the theory of not requiring knowledge of illegality forces the whole nation understands the laws, what is a manifestation of state authority and that violates the doctrine of responsibility as well. The main shortcoming of the differentiation between naturally criminals and statutory criminals is that it is difficult to distinguish between foregoing two types, and there is no legal basis between them. The theory of strictly intentional is a broad understanding of "knowledge of illegality", which considers that the existence of "knowledge of illegality" can be found as long as the actor recognizes that his behavior violates moral or ethical norms. This understanding is actually accordance with the first theory's conclusion. The theory of Quasi-intentional sets negligent crimes fall under the case of intention, which is obviously inappropriate. The theory of "the possibility knowledge of illegality" actually concerns about the responsibility of the perpetrator. And the theory of responsibility fragments the knowledge between the facts and the illegality, and this theory isn't suited to the planar system of crime constitution in China. Chinese criminal law scholars discuss this issue based on the understanding that "knowledge of illegality" is equivalent to the concept of knowledge of criminal illegality,and they form the following theories: the negative theory; the favorable theory; the alternative theory and the eclectic theory.The third part discusses that the knowledge of social risk is an element of crime intent. This paper comes to a conclusion that the concept of "knowledge of illegality" in Civil Law may not suitable to be introduced to China by analysis, and the element of intent can only be "knowledge of social risk" .The aforesaid "knowledge of social risk" represents in three forms: first, the actor recognizes that his behavior is negative for the community, or he knows that the other members of society consider his behavior is wrong and should not be and improper. Second, the actor is aware that his behavior is prohibited by laws. Third, the actor recognizes that his behavior would cause painful to the victims or the victims do not want to accept.The forth part is mainly discussing the judicial determination of"knowledge of social risk". The author considers that body of"knowledge of social risk"can only be the perpetrator himself, rather than that the general public or the judiciary. The standards of"knowledge of social risk"should be the common sense accepted by the general people, and that is a kind of understanding of probability. The judiciary only through presumption to determines the actor's awareness of social risk. At the meanwhile, the knowledge of social risk, as the establishment element of criminal intent, not only affects the conviction, should have a certain effect on sentencing as well.
Keywords/Search Tags:knowledge of illegality, knowledge of social risk, criminal intent, the establishment elements
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