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Elements Of The Crime Of Intentionally Knowingly

Posted on:2009-03-16Degree:MasterType:Thesis
Country:ChinaCandidate:Q FuFull Text:PDF
GTID:2206360248450854Subject:Criminal Law
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In the criminal law theories, cognition factor is a basic question of constitutive elements theory and the criminal intent theory. It is important to the criminal research and practice. Author analyzes the cognition factor of the criminal intent in a deeper sight to hope to make some progress to the criminal theories and practice.Part I cognition content. This part divided the content of the cognition factor into two parts as cognition of fact and cognition of illegality.First is the discussion on the cognition of fact. This part combs the groups concerning this problem of domestic and international, and induces three controversy problems. The author deems that: the nature of the crime that is specially requested on identity is the usage of the special identity, the actor has the criminal intent when he knows his action will make bad results to the social, no matter he realizes the special identity or not; it is proper to put the protective object of the Continental Law System (the same as the object of behavior in the domestic theories) into the scope of the cognition. Drawing the abstractive crime object of domestic theories into the scope of cognition will make big trouble to the judicial practice. So it is not proper to put the crime object of domestic theories into the scope of the cognition; Because the realization is a gradual progress, and every part of the realization is allied mutually. The cognition of the factor can not be simply distinct by the object of the behavior. So it is not proper to limit the contents of the cognition to single factor .Generally speaking, the author deems the content of the cognition of factor is the objective that criminal Provisions about Elements of a specific offence . Specifically, it contains the nature of the behavior , both natural and social attributes, the result of the behavior(no matter what kind of crime), the object of the behavior, causality (it should have the relation of the actor and be with the objective law)and some special request about time, place and method. Second is the analysis to the cognition of illegality. The papers discuss the necessity of the cognition of illegality, and put the focus on the two concepts of cognition of social harmfulness which is traditional in our country and the formal violation of law abroad. Author deems that cognition of social harmfulness is more proper to be the factor of the criminal intent than the formal violation of law. The reasons are as follows : cognition of social harmfulness is the suitable factor of the good criminal code; the views of the cognition of social harmfulness is not breach the principle of Legality; from the Perspective of the objective law of human behavior, the domestic theories of criminal law and the conditions of our country, cognition of social harmfulness is more appropriate to be the cognition factor of the criminal law.Part II Cognition content standard and the degree of cognition.First, this part introduces three different theories: theory of totally consistence, theory of abstract consistence and theory of official consistence. Author deems because of the evaluation mode of comparing cognition content with the actual crime behaviors; there are defects in these three theories. Further, author analyzes the evaluation mode from three aspects of the objective of the cognition content, the relation between the object factors and subject factors and the nature in line with the law, then draws the conclusion that the evaluation of the cognition content should base on the objective behavior and criminal provisions, and also it should comply with the common sense.Second, this part introduces three different theories, and draw the conclusion that the cognition of direct criminal intent and indirect criminal intent is the same. It is the cognition that the criminal result will happened possibly or surely.Part III the cognition factor in the judicial practice. This part begins with the great debate on the cognition content of the crime of rape young girls, combs the questions of cognition in the practice, and discusses the thread from legislative and judicial aspects.On the legislation, this part analyses two question s: how to define the relation between the general principles and the penal sub, should the subjective factors take the cognition content as element if the penal sub does not rule. For the first question, author deems because the general principles command the penal subs, so it is necessary to take the cognition content as the element of crime, and make suggestion that on the legislation that we can take the method of combine the general situation with exception. For the second question, author analyzes the criminal provisions with request on cognition, and refers to related theories, then comes to a conclusion: we should understand the provisions with the general principals, no matter the provisions have the cognition or not, then make the suggestion that make some judicial interpretation to determine the request on cognition.On the judicial part, according to the judicial practice abroad ,author deems no matter the natural guilty or the statutory guilty, if the criminal provisions are known by public, and there are no exceptions ,we can presume the actor have the cognition of social harmfulness. In the judicial practice, the judicial officers should take notice that: the fact that presumption lay on should be true; there should be necessary relation between the proof and the cognition fact; judicial officers should allow the defendant to refute the presumption.
Keywords/Search Tags:Cognition factor, Cognition of social harmfulness, Cognition content standard, Degree of Cognition, Cognizance of cognition
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