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On The Possibility Of Cognition Of Illegality In Criminal Law

Posted on:2017-03-13Degree:MasterType:Thesis
Country:ChinaCandidate:F SuFull Text:PDF
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There is the tradition of "Ignorantia juris non excusat" (one who does not know the law can not be exempt) in Roman law, but since modern times, this position has been changed. Especially since the last century, whether in continental law system countries, or countries of Anglo-American law system, the legislation or case of illegality cognition have made different provision. Japan’s criminal law, the third paragraph of the provisions of the eighty-third term:actors should not be judged that there is no intentional crime for the reason of non-illegality cognition, but according to the circumstances, the penalty can be reduced. French criminal law stipulated in article 122-3 that actors can prove that they thought they could legally complete their behavior due to their inability to avoid misunderstanding of some laws, their criminal responsibility shall not be held. American Model Penal Code section 204 (3) provides that law has not yet been issued or not been reasonably aware to the public and without the reasonable reliance to the relevant legal official statement (which later has been determined to be invalid or error) may constitute the defenses of the charges.As the bankruptcy of state authority, the rights of the individual more and more be taken seriously. Whether the responsibility of the ignorance of law still will have to be borne by the individual citizens completely has already become a problem worth thinking about. In addition, with the rapid development of modern society, not only the criminal charges, and more legal, namely it is difficult to determine its criminal irregularity and social harmfulness through the human general ethics. Although the media is becoming more and more developed, modern humans have increasingly heavy burden of receiving formations and responsibility of identifying true bogus. In this background, the presumption of knowing the law or absolute duty clearly can’t persuade the social individuals of increasingly value diversification. So the problem of illegality cognition is more and more valued. Although the concept is introduced to our country not too long, but still raised a hot wave of discussion among scholars in the criminal law. Many journals and dissertations, in the process of discussion, tend to stress the study of the following questions:(1) the specific content of illegality cognition;(2) the history of research and value analysis of the illegality cognition;(3) the relationship of social harmfulness cognition and illegal cognition;(4) necessity of the establishment the intentional crime by the illegality cognition(5) lack of illegality cognition is the prevention of intention or responsibility(6) influence to criminal responsibility of illegality cognition(7) difficulties to the cognizance of the illegality cognitionBut the final foothold of illegality cognition appears to be put on the issues of the possibility of illegality cognition, reasons are as follows:(a) illegality cognition belongs to subjective cognition and is hard to maintain, but only to make it objective with possibility of illegality cognition;(b) the western legislation and case expression is not about the criminal responsibility by illegality cognition, but the criminal responsibility by possibility of illegality cognition;(c) As to the discussion of illegality cognition, only to express of the necessity of existence of the concept.At present, whether in China or outside, illegality cognition is the best choice to balance freedom and order(d) The discussion of illegality cognition could be implanted on the possibility of illegality cognition.Based on the above reasons, the author decided to withdraw from a host of illegality cognition, and directly regard the most practical possibility of illegality cognition as a topic, for more targeted research. On the basis of combing the complicated idea and all kinds of views, which demonstrates the rationality and reasonable positioning of the possibility of illegality cognition, and sums up the most reasonable method of identifying, so as to reasonably determine the criminal responsibility about possibility of illegality cognition. The full text is divided into six parts as follows:The first part:the analysis of the related theory about illegality cognition. Because the theory of possibility of illegality cognition is based on deepening discussion of illegality cognition, so though the theme of this article is the possibility of illegality cognition, but still not without related theory analysis of illegality cognition, mainly from the content of the illegality cognition, whether illegality cognition is necessary, as well as the relations between the analysis of the social harmfulness cognition and illegal cognition, thus we can clear the basic theory of the illegality cognition, and prepare for the theory of possibility of illegality cognition.The second part:the possibility of illegality cognition. This part is into the core content of this article, the possibility of illegality cognition. First of all, introduction of the background of the birth of the theory of illegality cognition probability. Second, because the theory of possibility of illegality cognition has two kinds of views of intention of limitation and responsibility,so the two views need to be discussed. Finally, the liability of intention and negligence by the possibility of illegality cognition need to be respectively analyzed.The third part:comparative study of the theory of illegality cognition possibilities. Because the theory of possibility of illegality recognition is derived from the foreign law (mainly civil law).foreign (or elsewhere) legislation and case are more mature, which have the ready-made data for analysis. This section does not simply refer to legislation, but the analysis to legislation of each country, to explore its connotation and essence, and summarizes the general rule of the extraterritorial legislation today.The fourth part:theoretical analysis of the theory of possibilities of the illegality cognition. The theory of possibility of illegality cognition is not like water without source, its birth and development have a profound theoretical basis and background, this part is to analyze the correspondence of the theory of possibility of illegality cognition and the ideological trend of the criminal law providing the theoretical justification for the introduction to China’s criminal law system.The fifth part:the possibility of illegality cognition in the legal practice of our country. That A new legal concept or theory will transplant to another legal system must consider whether there is suitable soil for the root, otherwise it is difficult to grow up. This part first introduced the application situation of the theory of possibility of illegality cognition through several cases in the judicial practice in our country. Secondly, the author analyzed the compatibility and incompatibility of theory of possibility of illegality cognition in our criminal law, and carry on the concrete analysis on the conflict and put forward the countermeasures.The sixth part:Legal recognition of the possibility of the illegality cognition and its influence on criminal responsibility. If illegality cognition will be from legal theory to be born into law system, there has to be perfect, just and reasonable recognition mechanism, and determine the corresponding criminal responsibility according to different situations, so as to exert its positive effect. This section is designed to make the possibility of illegality cognition theory embodied, and provide actual revision suggestions which are suitable for our country’s criminal law.
Keywords/Search Tags:Possibility of illegality cognition, Theoretical analysis, Comparative law study, Legal recognition, Criminal responsibility
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