On The Error Of Illegal Cognition In Chinese Criminal Law

"People don't know the law that can not avoid punishment" is a legal proverb in the law of ancient Rome.With the development of social economy,people's behavior is becoming more and more complex.With more and more laws have been revised,there are more new forms of crime in the present society.The conflict between traditional ideas and responsibility is increasing.Sticking to the traditional concept will inevitably lead to an unfair trial which is difficult for us to accept.The general prevention function of the criminal law does not allow "the ignorance of the law is not a crime".This article insists that we should affirm the importance of the theory of illegal cognition to the construction of criminal law in our country:to remedy the defects of "social harmfulness" in China;to balancing the conflict between criminal policy and accountability;to change the concept of presumption of the mainstream law;to strengthen the legal authority.Based on the theory of the four elements of crime constitution in our country,At present,it is necessary to abandon the system orientation of illegal cognition.The emphasis of the study is to examine the error of illegal cognition.Whether the error of illegality can be avoided should be mainly reviewed in the following aspects:Firstly,whether people have the chance to find out the law objectively;Secondly,whether the actor is aware of their own behavior in violation of the law and doubt their own acts;Thirdly,whether people identify the law actively.The court should take this as the main basis of the judgment.In sentencing aspect,the court should distinguish some aspects,such as people's identity,age,different areas of violation.The main aspects of consideration of the distinction as follows:the distinction of the ordinary people and people in special industries;the distinction of the adults and minors;native and the foreign;the distinction of omission crime and crime;the distinction of the statutory crime and the natural crime.Author divide the error of illegal cognition into "completely avoidable error","relatively avoidable error","unavoidable error".So when people recognizeerror of law completely,the responsibility should be forgiven.When people recognize error of law relatively,the responsibility should be given a lesser punishment or a mitigated punishment.When people can avoid the error of law,they should be punished.