Understandings Of Illegality In Perspective Of Chinese Criminal Law

Article 14 of the Criminal Law made an expressly statement on deliberate crime:"Knowing that one's actions will cause socially dangerous consequences,and wishes or allows such results occur, thus constituting a crime, a deliberate crime".Knowing that their act will result a danger to society,this involves the understanding the perpetrator of the crime,and the attitude of deliberation. Whether this understanding is about the harmful or illegal cognition towards the crime,has been the debate among scholars after Criminal Law Theory of Germany and Japan was introduced to China.The reason why the problem of Illegality Understanding has become the debate of Civil Law System countries,is that it is closely related to the Three Class System of Germany and Japan.It is a product of the Three Class System of Germany and Japan,it discuss the illegality understanding of the perpetrator under the Accountability aspect.However,The Criminal Law of China adopted the traditional Four Elements System,and did not specifically investigate the understanding of illegality.When discussing the concept of "deliberate crime",some scholars believe that"Knowing that one's actions will cause socially dangerous consequences "is a request of actors to have the understanding of illegality,instead of the understanding of harmfulness as the traditional theory would suggest.So,schlors in favor of the Harmfulness Theory and sholars in favor of Illegality Theory,as well as the compromised ones,all come up with their respective point of views.Whether the undertanding factor of deliberate crime is Harmful or illegal in perspective of Chinese Criminal Law,is the problem that this paper is trying to analyse and resolve.This paper starts from the concept of Understandings of Illegality.Germany and Japan have different understandings towards the concept of illegality.The Chinese scholars often explain this concept literally in order to understand it,and think that it sheerly means the actor realize his action violate the law.In fact,there are three different types of Understanding of Illegality.Formly Illegality means that violating the law,and knows the action is illegal;Substantially Illegality focus on the meaning of the content of illegal action instead of simply emphsis on the rules.Based on the above,the Criminal Law of Germany and Japan have developed different theories,including Normal Violation of laws,Special Violation of laws, Violation of the substance of Law,Punishable Violation of Law.In Chapter 3, we mainly analyse and elaborate the "Harmflness Understanding". First, we start out to analyze the Criminal Law Article XIV," Knowing that one's actions will cause socially dangerous consequences"already include the requirement of Harmfulness Understanding.What exactly is Harmfulness?It means the damage a conduct cause to social relations or properties protected by the criminal law.There's a clear statement about the development of Harmfulness Understanding,and the important role it plays in the system of illegality in our country.In chapter 4,we start to analyse the relationship between Illegality Understanding, Harmfulness Understanding,and Deliberate Crime Understanding. Based on the question whether the factor of deliberate crime is Illegality Understanding,this paper analyses the views of different scholars,both at home and abroad. Then we categories them into three theories:Positive, Negative, Compromised. We also adapt this way of thinking to analysing another problem. The perspective of this paper is:Harmfulness Understanding is a necessity of Deliberate Crime Understanding,not Illegality Understanding. The reason is, first, text from the Criminal Law only requires Harmfulness Understanding rather than Illegality Understanding. Second, Illegality Understanding is a product of the Three Class System instead of Four Elements System. Third, the essence of Illegal Understanding is the understanding against legal interests. From this level, it is uncalled for to introduce Illegality Understanding to China,after all, Harmfulness Understanding already includes that. Finally, the context of Criminal Law of China is different from that of other countries, the understanding towards illeality is consequently different as well,so it is somehow inappropriate to introduce the concept into Chinese Criminal Law summarily.Besides,this paper also disscuses about the differences and similarities between Harmfulness Understanding and Illegality Understanding,so as to make clear what the function and status of Illegality Understanding in our legal system. In the cognition factors of deliberate crime,is Illegality Understanding more perfect than Harmfulness Understanding,thus become irrepalceable?The conclusion of this paper is,Illegality Understanding is the problem only appears under the law system of Germany and Japan.With China's Criminal Law context different from that of Germany and Japan,China will not have the problem of Illegality as Germany and Japan.In addition,China has expressly rule about deliberate crime,while Germany and Japan do not.Thus,the factor of deliberate crime is Harmfulness Understanding,not Illegality Understanding.