Ainalysis Of The Possibility Of Verbotsirrtum Avoidance Theory

The problem of verbotsirrtum is not only a question which has legislative blank,but also a question which has some theoretical contxoversies.It mainly discusses the question about the verbotsirrtum whether and how to affect the establishment of crimes when the offender has-verbotsirrtum.With the advent of the legal crimes era,the presumption of illegal awareness'cannot continue to be established in the face of the increasingly complicated trend of law and the rise of people's concept of justice.Therefore,the discussion about the problem of verbotsirrtum becomes more and more necessary and urgent.The Possibility of Verbotsirrtum Avoidance Theory,to a certain extent,it breaks the ice which was made by the traditional'the theory underline the unimportance of the illegal awareness' and 'the theory underlined the necessity of illegal illegal awareness',and it finds a new way to discuss the influence of verbotsirrtum to The establishment of the crime,which is fully demonstrated.The study of this theory is significative not only for the reason of enriching the theories related to verbotsirrtum,but also for the purpose of better solving the problem of verbotsirrtum in judicial practice.This thesis selects The Possibility of Verbotsirrtum Avoidance Theory as the research object,combing and discussing it from four aspects,in order to enrnch the content and demonstration of this theory,and to provide some specific design and conception for the application of this theory injudicial practice.In the first part,the thesis introduce the background of the The Possibility of verbotsirrtum Avoidance Theory and clarifies the specific connotation of the verbotsirrtum,which means the situation when the offender is not aware of the criminal illegality of his/her criminal illegal act.And then based on the discussion on the different idea which from `the theory underline the unimportance of the illegal awareness and'the theory underlined the necessity of illegal illegal awareness,deducing the specific connotation of this theory:the verbotsirrtum affects the establishment of crime and it is the responsibility element of both intentional crime and negligent crime.The inevitable verbotsirrtum can prevent the responsibility,but the avoidable verbotsirrtum can only reduce liability within the scope of intentional offense.The second part mainly discusses the judgment standard of the the possibility of verbotsirrtum avoidance and divides it into two levels which include the judgement standard of the existence of verbotsirrtum and the judgement standard of the unavoidability of verbotsirrtum.The former simulate the process of the offender recognizing the legality of the act,establishing the actor's inner conviction of the legality of his own act as the sign of judging the existence of verbotsirrtum.The latter combines the subjective and objective situation of the actor,concluding that only by mobilizing all the subjective cognitive ability and making full use of the available objective conditions can the offender's verbotsirrtum is identified as a inevitable Verbotsirrtum.The third part set up a there-steps judgement method of the possibility of verbotsirrtum avoidance which include'whether there were some objective disturbances of the verbotsirrtum''does the offender has some verbotsirrtum opportunities'and'whether the offender had tried hard enough to realize the Illegality of the act,which give an idea for the practical application of this theory.The fourth part mainly discusses the specific application of the theory in China,analyzing its suitability in China's criminal law system and putting forward the concrete idea of introducing the theory to China step by step.