Research On The “Should Know” Of Criminal Law

When identified the subjective, along with the introduction of presumption and state intervention, the Criminal Law of “know” constantly displace “should know”.However, there is a disconnect about the theory research and judicial practice of “should know”, it is necessary for “should know” to make some corresponding dredging. From affiliated to independence, from inference to presumption, “ should know ” gradually move towards systematic. Meanwhile, transplanting the general person standard of Tort Law to the Criminal Law to identify “should know” and in the statutory guilty field for further theoretical development, has great theoretical significance. Its theoretical basis is that it fits the equality, fairness, efficiency, and justice. The identification method of “should know” should adhere to prove and presumption simultaneously. At the same time, we should pay attention to the judicial interpretation of certain seemingly constructive, in fact, it is the indirect proof of evidence requirements. The presumption must be scheduled some conditions, otherwise, it does not need to set scheduled conditions. The identified extent of“should know” should be the “beyond a reasonable doubt”.In view of the reality that the criminal practice of statutory guilty is far less than civil or administrative practice, the conclusion of the civil presumption can be directly applied to the Criminal Law.There are six chapters in this paper as follows:The first chapter is the overall overview of “should know”. It introduces the connotation of “should know”and the forms of expression in Criminal Law. The content of “should know”as same as the“know”,including ironclad identity, object, behavior and state. The nature of “should know” manifested in two aspects, one is the perpetrator of subjective and objective psychological externalization; Second is reflected in a certain value judgments. The value judgment, including the value orientation of judicial policy issued by judicial organs and judges when finding “should know” in their own value judgment. Subjective understanding of system behavior including the perpetrator’s awareness and behavior of objects on the behavior of others subjective mental attitude judgment. There are two forms of “should know”.The first form exists in Specific Provisions of Criminal Law that that only in the crime of infringing trade secrets. The second form exists in the Judicial Interpretation of the Supreme Court. This paper also put the “should know”of Judicial Interpretation divided into four categories. First,it used “know” and “should know”together as the content of “should know”.Second, the judicial interpretation clearly defined that “know” refers “knows” and “should know” and listed the case of deemed to be understood as “should know”.Third, it used “know” and “should know”together as a fallback situation of identifying “should know”.Fourth, it used “should know” in the field of accomplice.The second chapter discusses the systematic define standard of “should know” and presented a series of problems. “should know” from the acknowledgment of the intermediate links and is affiliated to the list that Judicial Interpretation cited several to identified “should know”, and confirmed “should know” is a subordinate concept of “know”,to the scheduled conditions of “should know” continue to evolve, and based on policies to protect some order, the identification of “should know” tend to expand the range. The systematized process also highlights the fuzziness of “should know” that in standards, identifying method, degree all lack of a common doctrine.The third chapter mainly discusses the basic standards of “should know”. For the identification of “should know” I used the general person standard discussed the origin, theoretical basis and construction of a rational person standard. We must consider the behavior of person ability and case scenario happened when building the general person standard. In addition, in field of statutory guilty, the cognition of “should know” is illegality cognition and and to expand the reasonable person standard.The fourth chapter discusses the methods to identify “should know”, including criminal proof and criminal presumption. Criminal presumption is not proof, but an alternative method of proof. The cases that judicial interpretation listed are not all presumption, but the requirements of the indirect evidence. In order to minimize the risk of presumption, some conditions must be scheduled. Otherwise, it does not need to set scheduled conditions.The fifth chapter introduces the degree of recognizing “should know”. In the extent, I adopt the “beyond a reasonable doubt” standard. It not only pays attention to a case of “possibility”, but also pays attention to “impossibility”. Such standard has been confirmed by the highest judicial justice policy, but also fit the specific criminal policies.The sixth chapter introduces the civil inference of “should know” and establishment of criminal proof. In deep links, for example, I demonstrate that the civil presumption of “should know” conclusion can be applied to criminal proof in the field of statutory guilty. At the same time, I believe that criminal law should make full use of the rich achievements in civil or administrative practice to make it better to convergence with pre-commit statutory.