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On The Status Of The System Of Knowledge Of Illegality And Identified

Posted on:2009-02-04Degree:MasterType:Thesis
Country:ChinaCandidate:W PuFull Text:PDF
GTID:2206360248950854Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
What position the illegal cognition account for in the theoretical system of crime? In other words, illegal cognition is the element of intentional offence, or it's the element of criminal liability? The question is most important on research of illegal cognition. There's no independent element of liability in our "four elements" criminal theoretical system, we discuss it in the "subjective element". In this article, the author thinks that, intentional offence is the judgment of facts, but illegal cognition is the normative judgment, the latter is not the element of the former, but a independent element of liability. Accordingly, the author suggests that our crimes composition should be amended, we'd better introduce progressive criminal theoretical system.This article consists of 4 parts, about 30,000 words.Part 1: The defining of illegal cognition. In this part, illegal cognition and its possibility is discussed, including the concept, the connotation, the category and the relationship between illegal cognition and social harm. On connotation, the key is how to explain "the law". In the author's opinion, it means "overall law and order". On the category, the most influential one is the form and substance of the illegal cognition, the author thinks the form illegal cognition is more worthy of discussion. On the relationship, this paper opposes using "recognition of social harm" substitute "illegal cognition", advocate the illegal cognition be considered when it comes to criminal liability.Part 2: The academic contend between the illegal cognition and criminal intention. Differences of the relationship between the illegal cognition and criminal intention are discussed in this section. The principle of "Ignorantia juris non excusat" has far-reaching effects all over the world, however, with the continuous development of society, it brings confusions to the impartiality of the judiciary. Whether the illegal cognition should be considered when we discuss a behavior constitutes a intentional crime or not? There are positive and negative perspectives tit-for-tat. The "possibility of illegal cognition" is supported in this paper, because it fully considers the foundation of liability's impugned possibility, and the perpetrator's specific circumstances.Part 3: The illegal cognition is independent element of criminal liability. In this section, the author demonstrates the defects if we regard the illegal cognition as element of criminal intention, and propose to amend our criminal theory system, introduce the progressive "3 levels" criminal theory in the civil law system. The doctrine of criminal intention is based on normative responsibilities, but, this paper thinks that the doctrine misunderstands normative responsibilities. The doctrine of normative responsibilities insists that the elements of responsibility include not only psychology facts, but also normative value evaluation, and the latter is the most important. The normative value evaluation is not attached to the psychology facts, and the illegal cognition is an independent element of responsibility. At present, there's no independent element for liability judgment in our "4 elements" criminal theoretical system, and this is not logical.Part 4: The identification of the illegal cognition. In this part, the author takes abstract cognition as standard of the degree of the illegal cognition at first. Then, explains the presumption method should be based on the perpetrator have the capacity for criminal responsibility, and he doesn't claim the illegal cognition. At last, the author discusses the exceptions when the presumption method unable to play a role. The exceptions involve not knowing the law and misunderstanding the law. Under the premise that introducing the criminal theory in civil law system, the author suggests using the methods in Anglo-American law system, admitting some special "misunderstanding" are reasonable and legitimate , such as trust on regulations, precedents, interpretations of public authorities, and so on.
Keywords/Search Tags:illegal cognition, possibility of illegal cognition, overall law and order, criminal intention, criminal responsibility, formal illegal cognition
PDF Full Text Request
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