| With the development of society, the ancient doctrine of “ignorance of law is not an excuse†is gradually collapsing. Social needs and principles of criminal law, call for the birth of the issue of illegal consciousness. Legislation and judicial practice in foreign countries gradually changed their standpoints on ignorance of law. But in the meantime, the issue of illegal consciousness in our country is just limited in the area of theoretical research. That brings some problems to the judicial practice. Therefore, how to bring the theory of illegal consciousness into our country’s crime elements analysis system and use it in judicial practice, are problems which needs to be solved right now. This paper will make discuss from four chapters below, in order to provide some useful help for the solution of this problem. The first and second chapters focus on clarifying issue, while the third and forth chapters are dedicate to solve the problem:The first chapter describes the generation of the issue of illegal consciousness. In traditional society, law was easy to be known, people were able to know law and law should be known. These three characteristics made the doctrine of “ignorance of law is not an excuse†reasonable. But with the development of society, the characteristics in the traditional society have changed. The law may not be known without deliberately cognition, the limitation of human’s ability become obvious, and the protection of human rights is being taken seriously. On one hand, these characteristics make doctrine of “ignorance of law is not an excuse†collapse. On the other hand, the principle of “no penalty without a law†and the principle of culpability, both call for the appearance of illegal consciousness in the crime theory and penalty theory. Thus, while the theory of illegal consciousness is developing ceaselessly, legislation and judicial practice in many countries are changing accordingly.The second chapter defines the content of illegal consciousness. Some concepts related with “illegal†in German criminal law theory, are not the direct content of illegal consciousness, though related with. Choosing the content of illegal consciousness is a problem of criminal policy in nature. In Fact, it is a process to set up a reasonable obligation of knowing law for citizens, balancing between the principle of culpability and necessary order. Considering about these factors, choosing “the consciousness of realizing an action is not allowed in law†as the content of illegal consciousness, is reasonable in relative. The concept of criminal intent in our country’s criminal law contains the consciousness of social harmfulness. The consciousness itself does not have the quality of norm, but we can use the method of legal explanation to unify illegal consciousness and consciousness of social harmfulness, as the relationship between them is the relationship of inclusion.The third chapter discuss the problem that where the problem of illegal consciousness should be put in the crime elements analysis system. The Theory of Intent and the Theory of Liability are two main theories about the problem in Continental Legal System. Arguing which theory is better is meaningless, as our country’s crime elements analysis system is different from the Three-class of the Constitution of Crime. But we can learn from the theories: to the subjective fault, we need to distinguish the judgment of psychological factual and the judgment of norm evaluating level by level; to negligent crime, we also should consider about the problem of illegal consciousness; according to the situation whether there is a legal fault, the legal effects of lacking illegal consciousness are different, including negating crime or reducing criminal responsibility. Stones from other hills may serve to polish jade. According to these revelations, the reasonable plan to bring the issue of illegal consciousness into our country’s current crime elements analysis system: regard the possibility of illegal consciousness as a necessary condition for a crime; regard “lacking illegal consciousness which is caused by legal fault†as a statutory reason of reducing penalty.The forth chapter discusses how to judge and use the theory of illegal consciousness concretely in the judicial practice. The crime elements analysis systems of The Continental Legal System and Anglo-American Legal System contain the mechanism of presumption. That means using the method of factual presumption to prove illegal consciousness(possibility), meets the requirements from both the substance and procedure. Factual presumption making the problem of illegal consciousness present in the form of inevitable errors and evitable errors in the process of lawsuit proof. To prove the inevitable errors of illegal consciousness, we should pay attention to figure out whether there is a chance to think about the illegality of an action, and whether a man has tried his best to know law. To the criterion for judgment, we should distinguish judging material and judging standpoint. The judging material is the situation where the man is. The judging standpoint is the one of common people. |
