Knowledge Of Illegality

Illegal cognition has been a hot issue in Continental Law System countries and, it is a basic question of criminal law theory. In China, scholars have been increasingly debating the question for the latest years and, they presented their viewpoint respectively on the question. This dissertation mostly discusses some controversial problems of Illegal cognition in the scope of criminal intent. The paper with more than 3200 characters consists of three parts, which are the general survey of Illegal cognition, the content of Illegal cognition and the position of Illegal cognition.PartⅠlays out briefly the historical evolution of Illegal cognition in the Continental Law System (Germany and Japan) and the common law system. Then, it defines the circumscription of Illegal cognition from the view of colligating the legal prejudication. Illegal cognition called illegitimate acknowledgement is that someone's recognition to the behavior is prohibited by the law. Then the paper introduces opinions of illegality in Germany and Japan. At last, the author reaches several pieces of conclusion: Illegal cognition is not cognition of formal illegality but cognition of substantive illegality. Objective illegality doesn't match illegal cognition, because the former separates the latter, which is an organic unity of objectivity and subjectivity. As subjective illegality holds that illegal cognition depends on criminal responsibility. Illegal cognition has much to do with subjective illegality. The worthlessness of conduct and result are not questions of essence of illegality, but questions of evaluation of illegality. So, it has not too much to do with Illegal cognition. At last, doctrines of content of Illegal cognition in Continental Law System countries and China. Through analyses and discrimination of the above doctrines, Illegal cognition is not cognition of breaching the general code or cognition of violating of criminal law, but cognition of breaking law, because it inappropriately expend or contract the content of Illegal cognition.PartⅡbegins with the introduction to the theories of cognition of illegality in Continental Law System countries. Due to different understanding of the position illegality falls 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 carefiil 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. 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 conclusion that the cognition of illegality consists of the cognition of violating legal norm and legal order.PartⅢdeals with doctrines of the position of illegality in the formation of a crime in Continental Law System countries and in China. In Continental Law System countries different opinions about illegal cognition turn into two doctrines, which are doctrines of criminal intent and doctrines of responsibility. Doctrines of criminal intent holds that illegal cognition is an element of criminal intent. Thus, illegal cognition has no or little place. Doctrines of responsibility holds that illegal cognition, criminal intent and criminal negligence are elements of responsibility. Consequently illegal cognition has its place in the doctrine. In China, doctrines are mostly about whether illegal cognition is an element of criminal intent. Thus, they do not turn into doctrines in Continental Law System countries. Because the great difference in theories of constitution of a crime between the Continental Law System countries and China, Chinese doctrines of illegal cognition are similar to doctrines of criminal intent, while they are very different from doctrines of responsibility.