| This paper is based on illegal cognition which is under debate for a long time in the mainland legal system theory, and this issue also attracts Chinese criminal law scholars’attention. First, the origin of illegal cognition and the significance of criminal law theory about this issue will be introduced in the first past, and the author will analysis its definition in depth. Second, the debate of the illegal cognition could be divided into two part——what is the range of law in this theory; what is the relationship between illegal cognition and crime intention? Then further tease out Chinese scholars and foreign scholars’opinions of this two parts and their legislative experience. And through the integration and analysis of various theories on the Chinese and foreign criminal law, analysis of the reasonable and unreasonable, clarify and analysis the focus of controversy. In addition, it makes an in-depth analysis of the relationship between social harmfulness cognition which has Chinese characteristic and illegal cognition is part of the core of this paper, the author in the article of foreign experience of legislation and theory, practice, and according to the actual conditions and the legal status of our country, proposed the present stage China cannot completely using illegal cognition instead of social harmfulness cognition. Harmfulness to society in general is still the standard of judgment, for some special cases or should use of illegal cognition standard, so the integrated view can adopt the two alternative views, and can be illegal cognition included in China’s criminal intention, criminal law principle of legality and also in line with the protection of human rights. Finally, with the support of the theory, but also resolves the illegal cognition theory in judicial practice application and identification, the author also looking for the illegality cognition exert its superiority under the environment that people have higher level legal quality in the future. |
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