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Error In Cognition Of Illegality

Posted on:2018-09-21Degree:MasterType:Thesis
Country:ChinaCandidate:W Q YangFull Text:PDF
GTID:2346330515980093Subject:Criminal Law
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In today's society with multicultural development,incidents of conflicts between subculture and mainstream culture occur every now and then.When the actor has the error in cognition of illegality due to the belief in his source culture,it is urgent to study the research on how to deal with the errors of cultural conflicts in criminal law.Although related researches on the cognition of illegality and the error in cognition of illegality have been quite accurate and detailed in the domestic and foreign theoretical circles,few of them are related to cultural conflict.The whole thesis is divided into four parts.With the forward logic method as the research approach,the author analyzes the theories one after another from the introduction of cultural theory to the theory of error in cognition of illegality,then to the application of law in the error in cognition of illegality with cultural conflict,and finally to the shaping of behavior patterns of subculture groups in multicultural society.Connecting the cultural conflicts with the error in cognition of illegality,this thesis puts forward the specification for dealing with the error in cognition of illegality with cultural conflicts specifically.The first part is the introduction of cultural theory,defining the basic concept,characters and types of culture,subculture and cultural conflicts,emphasizing the concept,type and classic cases of the dilemma of law with cultural conflicts in multicultural society.The second part is the error in cognition of illegality,the basic part of in this thesis,analyzing the different theories on the positioning in the cognition of illegality.According to the understanding of “illegality” and on the standpoint of the normative theory of culpability,the author reviews various theories and insists on the the theory of strict intention in “the theory of illegality cognition being necessary”.On the basis of the theory of strict intention,this thesis tries to understand the subjective guilty of the actor when there is an error in the cognition of illegality with cultural conflict,analyzes whether the actor in subculture group has the cognition of illegality and the possibility of having cognition of illegality,thus determining whether criminal intention or criminal negligence is established.The third part is the application of law on the error in cognition of illegality with cultural conflict,and it is the core part of the thesis.Firstly,this thesis analyses whether cultural background factors should be taken as the basis for conviction and sentencing.On the perspective of the policy,in order to maintain social fairness,order and the development of multicultural society,the factor of cultural background should be taken into consideration in the conviction and sentencing.This thesis tries to apply Habermas' s theory of inter-subjectivity,and discusses the relationship between "inter-subjectivity" and the error handling of illegal cognition,and obtains the basic policy stance to deal with the cultural conflict of illegal cognition——for those who conform to the standard of inter-subjectivity,the polity stance of tolerance shall be granted;for those who don't conform to the standard of inter-subjectivity,relatively strict policy stance shall be given.After that,this thesis analyzes the influence of cultural factors on the two aspects of criminal responsibility and subjective crime,and makes a concrete analysis on how to apply the law to the specific cases of different types of cultural conflicts on the basis of the existing research.As the collateral question,the last part mainly discusses the significance of standardized treatment on the error in cognition of illegality with cultural conflict in guiding social behavior mode.
Keywords/Search Tags:error in cognition of illegality, cultural conflict, inter-subjectivity, criminal responsibility
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