Knowledge Of Illegality

Cognition of illegality has been a hot issue in Continental Law System countries and is also a basic question of the theory of criminal law. In recent years, cognition of illegality has been a topic of general interest in the circle of law in China and scholars have aired their opinions of this issue. The author of this thesis puts forward his idea of cognition of illegality on the basis of the connotation of cognition of illegality, its position in the constitution of crime, and its judicial cognizance. This thesis consists of four parts with about 32,500 words in total: the content of cognition of illegality and so on; the introduction to and assessment of the theories of cognition of illegality in Continental Law System; Chinese scholars' introduction to and assessment of cognition of illegality; the judicial judgment and disposal of cognition of illegality.Part Ⅰ begins with the introduction to the theories of cognition of illegality in Continental Law System countries. Due to different understanding of the position of cognition of illegality in the system of criminality, scholars' ideas of cognition of illegality fall into three groups. In this part, the author comments on the theoretical bases of these three theories and points out their defects. Then the author introduces three theories of cognition of illegality in China: the theory of criminal illegality, the theory of violating legal norm or legal order and violating the general norms. After careful analyses of all the theories and comparative study of the theories in China and those in Continental Law System countries, the author comes to the conclusion: the theory of violating legal norm lumps together legal norm and other social norms and it does not accord with the essence of cognition of illegality. China has taken a monist approach on the issue of violation of law while the Continental Law System has taken a pluralist one. In China, the idea that cognition of illegality means cognition of criminal illegality is not based on the system of criminality. As long as the actor is full aware whether his or her behavior is permissive in the integrative legal norm, the value of cognition of illegality can be correctly reflected. The cognition of violating general legal order can enhance the practicality of the judicial authority and ensure the real consideration of cognition of illegality. The author draws the...