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The Research Of Illegality Cognition About The Crime Of Illegal Operation

Posted on:2016-08-05Degree:MasterType:Thesis
Country:ChinaCandidate:Y ShuaiFull Text:PDF
GTID:2296330461462384Subject:Criminal law practice
Abstract/Summary:PDF Full Text Request
The crime of illegal business derive from speculation of criminal law in 1979, our country’s criminal law adopts the blank facts and miscellaneous provisions to set out this crime at present.On the one hand,the legislative pattern make the market economic much more flexibille, on the other hand, this crime’s content and extension are so ambiguity that nature of some business behaviors are uncertainty,this crime was expanded application.Illegality cognition errors originated from a Roman maxim,that is "ignorantia facti excusat,Ignorantia juris non excusat". Illegality cognition belongs to the responsibility in German and Japanese criminal law theory.Our traditional theory is not pay much attention on illegality cognition in untill recent years. Our theory field and judicial practice generally adopt the theory of no illegality cognition. Some scholars also believe that illegality cognition is the component of deliberately elements.This article will discuss the way of restricted application of the illegal business crime through illegality cognition.This paper is divided into four parts, about 30000 words, its main content is as follows:The first part mainly stated the crime of illegal business is a legal crime,so as to illegality cognition is necessary and significant. First of all, introduce the concept of legal crime,and its difference with natural crime, determine the nature of the crime of illegal business is legal crime. Secondly, discuss the role of illegality cognition play and its necessity in illegal business crime. Again, analysis of illegality cognition’s status of criminal constitutive elements in illegal business crime,and introduce it in the theoretical circle in China and the continental law system, and determine the illegality cognition in cognizance of the crime of illegal business position, namely illegality cognition is the contents of this crime’s subjective harmfulness is not enough set up this crime.The second part is main content of this paper, the cognizance of illegality cognition in illegal business crime, including illegality cognition’s content、type and the investigation ways. First of all, introduce the illegality cognition theory in the theoretical circle of criminal law, infer content of illegality cognition in illegal business crime, that is the connotation of "law" is combined with the criminal law and national regulation, adopt the theory of criminal illegality, national regulation are generalized criminal law,it can be taken into the criminal law account. Regardless of the public recognize the behavior violate the other laws or criminal law,it can be considered illegal business behavior subject has illegality cognition, set up the illegal business crime intentionally. Then, this paper expounds the connotation of illegal business crime, mainly from the “other illegal business behaviors which seriously disrupt the market order ",bring national regulation in this crime charges is not violate the principle of legality. Second, discuss the kinds of illegality cognition errors in the crime of illegal business crime. Because of unknown or misunderstanding legislation, operators come about false illegality cognition, so prevent from deliberately and don’t constitute this crime. Finally, introduce the judgment method of illegality cognition in the judicial practice.The third part mainly discuss the role and value of illegality cognition in intent of illegal business crime.Economic basis determines the superstructure,our country’s economic development determines the necessity of the crime of illegal business, but not all the illegal business behavior need criminal law. Essentially illegal business behavior not infringes on the health and safety, decriminalization can achieve the effect of punish illegal bussiness and safeguard economic order.In order to improve this crime expanding application,the legislature should be use illegality cognition to limit deliberate application, the judicial office should consider whether the actor has illegality cognition. Therefore, we must strictly distinguish the crime of illegal business between legitimacy and crime.
Keywords/Search Tags:Legal crimes, the Crime of Illegal Operation, Illegality cognition, National regulation
PDF Full Text Request
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