The Path Of Introducing Illegality Cognition To Chinesecriminal Practice

The illegality cognition in criminal law means that the actor knows that his or her behavior is not allowed by law or even prohibited.From the beginning of the principle of "Ignorance of law is not crime",to the shake of the presumption of law,the illegality cognition has gradually walked to the front of law,which has had a major impact on the legislation and judicial practice of various countries.In the field of criminal law theory,illegality cognition has always been a controversial question.Scholars focus on the basic issues such as the need for illegality cognition,the systematic status of illegality cognition,the relationship between illegality cognition and the possibility of illegality cognition,and even the principle of inculpation of illegality cognition,the judgment standard of the existence of illegality cognition(possibility)and other practical issues have been discussed for a long time,but the mainstream view has not formed.At the same time,there has always been a deliberate neglect of illegality cognition in the practice of criminal law in China,which has led to some cases in recent years that have caused major public remarks.In order to grasp the way in which the practical deal with cases of illegality cognition,the author adopted an empirical research method,and retrieves 100 cases with high relevance by using illegality cognition as keyword.By analyzing and organizing these cases,the author obtained the attitude of the practical on illegality cognition.The overall attitude is cold,making it difficult for the illegality cognition to play a substantive role.There are different opinions,and no unified judgment standards.In order to correct the chaos in practice and promote the fairness and justice of specific cases,the author believed that it should not be entangled in the systematic status of illegality cognition,but should propose advice on the practice of illegality cognition.Therefore,the author put forward discussing the possibility of illegality cognition as the balance between responsibility and prevention,public interest and private rights.Legal consequences are not affected in the absence of illegality cognition;in the absence of illegality cognition,the possibility of illegality cognition should be examined,and if there is a possibility of illegality cognition without illegality cognition,the legal result will be lightly punishable;if there is no possibility of illegality cognition without illegality cognition,the legal result of minimizing or even exempting the punishment can be obtained.After that,the author combined academic views and empirical research conclusions,and put forward to taking the possibility of illegality cognition as discretion factor in the practice of criminal law.The practice should face and affirm the existence of illegality cognition,and distinguish the illegality cognition and possibility of illegality cognition in specific cases.In the end,according to the view of the possibility of illegality cognition,it should be formulated and promoted as unified standard.In the selection of promotion methods,it can be known that the available introduction paths are legislative and judicial,and legislation is the best solution.However,before the implementation of the legislation,it is also possible to use appropriate methods such as guiding cases and judicial interpretation to promote the illegality cognition in the judgment and promote the fairness and justice of specific case.