Study On The Error In Cognition Of Illegality

"Factual errors can avoid responsibility, while don’t know the law can not avoid punishment" is a basic principle in the law of ancient Rome,which acts an important role on the theory of error in cognition of illegality in criminal law theory and judicial practice. For a long time, countries have to follow this principle, illegality cognition errors both in theory and in judicial practice have no effect to the perpetrators of criminal responsibility. Legal system constantly improved along with the social progress, however, illegality cognition errors are gradually excavated in the position in criminal law theory, until today, the western countries about the research of this problem has already formed the comparatively comprehensive theoretical system. Illegality cognition errors, generally refers to the behavior in the person on the understanding of the fact there are no errors, but the nature of its behavior and behavior the legal consequences of the wrong understanding. About illegality cognition error theory, the civil law in the criminal law theory have intentionally says and responsibility. For now, responsibility theory plays an important role, advocate illegality cognition error occurred when the offender is not to avoid the possibility of, should be deterrent responsibility; While when the actor had the chance but did not make right decession we should consider reducing criminal responsibility.The study on the error in cognition of illegality in our country began in the 1980 s, however, due to China’s coupling system of four elements crime constitution, determines the illegality cognition mistakes can only exists in the concept of intentional crime in our country. In view of the illegality cognition mistakes whether resistance is the establishment of the crime intentionally, this paper enumerates the negative, and said, surely says and compromise, and through the contrast analysis, think illegality cognition should replace the social harmfulness cognition as a crime intentionally set up necessary requirement of China’s criminal law, when a lack of illegality cognition can be used as a negligent crime processing. If there is no chance for actor to know the cognition of illegality, the responsibility should be forgiven.Abandon the big and empty concept of social harmfulness in our criminal law theory and bring in the cognition of illegality, and established as a deliberate crime judgment standard is meets the needs of social development in our country. In this paper, in the judicial practice about the standard of illegality cognition mistake and do the detail specific judgment method, namely in the general case, the offender presumption of fact with a correct understanding can its illegality cognition, but under special circumstances, can you make an exception to deny illegality cognition. In terms of legislation, by redefining intentionally crime in Chinese criminal law and criminal negligence, increase the illegality cognition with possibility of avoiding mistakes in the our country criminal law the terms of the provisions of negligent crime include formal illegality cognition error theory in our country’s criminal law system, and play its proper role.