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Research On The Error Of Illegality And The Judgment Of Its Inevitability

Posted on:2019-10-27Degree:MasterType:Thesis
Country:ChinaCandidate:S Y FanFull Text:PDF
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With the development of the society,a large number of laws and regulations that go beyond the core areas of life have appeared,and the number of the legal problems has been increasing because of the ignorance of the law.The traditional principle of "ignorance of the law excuses no one" has been unable to properly deal with the illegal cognitive errors in practice.Many foreign countries have changed the position of "not knowing the law can not avoid responsibility" in legislation and judicature,but the theoretical research on illegality in our country is still limited to the position of illegal cognition in the criminal constitution system,which is difficult to link with judicial practice.Therefore,the purpose of this paper is to explore how to deal with illegitimate cognitive errors from the perspective of judicial practice so that the conclusion of the illegal cognitive errors can influence the responsibility for an offencecan be accepted by judicial practitioners.The first part is the introduction of illegal cognitive errors.In the judicial practice of our country,we still insist on the principle of "ignorance of the law excuses no one",which is based on the presumption of knowing the law.But with the coming of the era of legal offense,the presumption of knowing the law is difficult to be accepted,and the insistence of the "ignorance of the law excuese no one" will cause query to the judicial justicefrom the society.In the theory of criminal law,it has almost become a consensus that the wrong understanding of illegality affects the responsibility of crime,and judicial practice should also be changed.The second part is to clarify the basic problems of illegal cognitive errors.The usual logic of solving problem is to figure out what it is before answering what to do.This part clarifies the concept of illegal cognitive error,and it is thought that it is relatively reasonable to define the content of illegal cognitive error as "criminal law norm violation consciousness".This paper mainly discusses the orientation of illegality in the constitution of crime,analyzing the deficiency of the theory of intentional theory and endorsement with the theory of responsibility.In the third part,the author discusses the concrete scheme of solving the cognitive errors,,and introduces the experience of foreign countries in dealing with the problem of illegality,pointing out that the key problem to solve this problem is to balance the relationship between liability doctrine and criminal policy.The function of balancing the relationship between the two is to distinguish whether cognitive errors can be avoided and to stipulate that cognitive errors can block responsibility only when it is inevitable.The fourth part focuses on how to judge whether the perpetrator has illegal cognition errors and if it is the circumstance that can't be avoided.It is believed that the perpetrator should be presumed to have illegality knowledge when judging whether there is a wrong understanding of illegality or not(There is no cognitive error).Only when the perpetrator put forward the existence of illegal cognitive errors,the investigation can be started.To judge whether illegal cognitive errors can be avoided,the judgment standard should be on the basis of the person's education level and occupation to mark off social field,and then making a judgement according to the average understanding ability of persons in the field.Whether the perpetrator has the chance to know the illegality and whether the perpetrator tries to reassure the illegal doubts in the heart should be considered when making a concrete judgement.
Keywords/Search Tags:illegal cognition error, law presumption, schuldprinzip, criminal policy
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