The Research On Possibility Of Illegal Consciousness's System Position In The Theory Of Crime In China

China's "Criminal Law" does not explicitly specify the possibility of illegality.Sticking to the tradition of not knowing the law and not exempting the stance makes it difficult for the judicial organ to properly respond to an endless stream of illegal knowledge.How to deal with the current peculiar dilemma of illegal knowledge in judicial practice,and propose more reasonable and feasible solutions,gradually aroused the attention of academics and judicial practice.The purpose of this article is to clarify the system status of the necessary conditions for establishing a subjective crime in our country by discussing the status of the legal system of illegality,without compromising the deterrence of the criminal law and without increasing the burden of proof provided by the judicial authorities.Through the rational distribution of criminal justice proof responsibilities and other technical arrangements,the theory of illegality and possibility of recognition was incorporated into China's criminal law theory system and put into practice.This article is divided into five parts,about 29,000 words.The first part elicited the possibility of illegality recognition in the case of Zhao Chunhua and other typical cases,introduced the situation of the possibility of illegal awareness in our country's judicial practice,and pointed out that it is imperative to introduce the theory of the possibility of illegal awareness in the composition of crimes.The second part introduces the basic theory of the possibility of knowing illegality.The basic concepts of illegal knowledge and its possibility are clarified in this article.This article expounds the understanding of the nature of the possibility of illegality in this article,analyzes the difference and connection between the illegal knowledge and its possibility,and determines the article's Discussing basics.The third part discusses the controversy over the system status of the criminal law community in China regarding the possibility of illegality.Expounded the arguments for the illegality of the possibility of "do not speak" and "necessary".Introduced the theory of responsibility for the status of illegal awareness,status of strict liability,subjective requirements,and the difference between natural criminals and legal criminals.After commenting on related doctrines,subjective requirements were eventually adopted as the basic position of this paper.The fourth part introduces and analyzes the extraterritorial judicial and legislative practice of the issue of illegality.According to the general trend of unavoidable legal errors hindering the recognition of criminal responsibility in civil law countries and regions,Anglo-American legal system countries allow legal errors to set up defenses in exceptions,and sum up the various countries and regions under different conditions.The principle of risk allocation adjustment for the possibility of illegality awareness provides reference for the design of the treatment path for the possibility of illegality in China.The fifth part discusses and proves the possible inclusion of the possibility of illegality in the theory of criminal law in our country,and argues that the possibility of illegality recognition exists as a subjective element in the four essential criminal constitution theories in our country.It discusses the judgment and specific application of the possibility of illegal awareness in judicial practice.Combining the method of presumption and proof and the investigation method at different levels to determine whether there is a possibility of illegality,and to provide a feasible plan for the theory of the possibility of illegality to play a role in practice.