The Theoretical Dilemma And Practical Solutions Of Verbotsirrtum

Ignorantia juris non excusat,which is an important adage,now is being challenging.In Criminal Law Science,this is being reflected as Unrechtsbewusstsein.Verbotsirrtum.The Verbotsirrtum means the situation that someone do not know that his behavior is forbidden by law.In the past few years,there were some strange cases,which are controversial,and many people say that the punishment is too severe.In the past dozen years,Chinese scholars show different opinions on this problem,whereas practitioners do not take it serious.This thesis trace back to German and Japanese theory,analyzing the indeed connotation of Unrechtsbewusstsein and the debates between Chinese Scholar,trying to find the real position of verbotsirrtum in Chinese Criminal Law System.This thesis consist of four Chapter:Chapter 1: Overview,introduce the basic concept of Unrechtsbewusstsein and Verbotsirrtum,saying that the content should be legal norm.This Chapter showing the position of(Possibility of)Unrechtsbewusstsein in the one hundred year of the development of theory of crime and different viewpoints of Unrechtsbewusstsein in German and Japanese Criminal Law theory.In order to confirm the research range,Chapter 1 distinguish the Tatsachenirrtum and Unrechtsbewusstsein.The former is the error on the objective element of Tatbestand,while the Latter is the error on the forbid of behavior.Chapter 2: Dilemma is about the position of Verbotsirrtum in Chinese Criminal Law Science.Now German and Japanese Criminal Law science is very popular in China,but the preponderant viewpoint is still the traditional four-parts TatbestandTheory.The Unrechtsbewusstsein coming from Germany and Japan is now very embarrassing in China.Chinese scholars have disputes in following problem:1.Is Unrechtsbewusstsein a part of deliberateness in Chinese Criminal Law? This thesis disagree with the traditional view.2.What the relationships between Unrechtsbewusstsein and the cognition of social harmfulness? This thesis says that the dispute on that relationship is biased.In addition,this Chapter focuses on the judicial application of Verbotsirrtum.Generally speaking,the judicial application ignores the Verbotsirrtum.This thesis classifies and concludes the relevant cases and point out their deficiencies.Chapter 3: Break the Dilemma.This thesis try to examine the Unrechtsbewusstsein in Chinese Criminal Law in a new way.1.This thesis disagree with those scholars who say that the Article 14 is the basic of their theory,since they have a misunderstand.2.This thesis concludes that,the cognition of social harmfulness is the necessary element of deliberateness.social harmfulness is the general character of crime,showing through the whole Tatbestand,not the individual part of Tatbestand.3.This thesis concludes that,Unrechtsbewusstsein is not the necessary part of deliberateness,although many criminal would recognize the harmfulness of their behavior.(1)fact presumption is not applicable here;(2)This thesis has a new explanation of Ignorantia juris non excusat,concluding that the ignorance of law is not a evil.What Criminal Law intend to blame is not the ignorance of law itself,but the hostility and overlook attitude to law.It is impossible to count on every person to recognize the law.4.Possibility of Unrechtsbewusstsein is also not the necessary part of deliberateness.Traditional four-parts Tatbestand do not have a independent level of Schuld,which means that Possibility of Unrechtsbewusstsein is impossible to be absorbed in subjective aspect of crime.This Chapter also analyze the relationship between Unrechtsbewusstsein and Possibility of Unrechtsbewusstsein.Chinese Tatbestand do not distinguish unrecht and schuld,and it also have not been affected by Normative Schuldauffassung.This chapter conclude:Unrechtsbewusstsein is unnecessary for Chinese Tatbestand,but the Possibility of Unrechtsbewusstsein is a necessary part in Criminal Responsibility.It's meaningful toImplement Psychologische Schldauffassung in Chinese Tatbestand while Normative Schuldauffassung in Criminal Responsibility.Chapter 4: Practical Solutions.Traditional theory says that the structure of Criminal Law knowledge is“ Crime – Responsibility – Punishment ”.This Chapter concludes that Chinese Scholars almost ignore the research on Criminal Responsibility,which is not a fine situation.The structure of Criminal Responsibility should include imputation,which consist of Possibility of Unrechtsbewusstseins.In fact,German and Japanese scholars have some discuss about the standard of the Possibility of Unrechtsbewusstseins,but very few Chinese scholar concern it.This Chapter concludes that the visual angle should be the actor's view,but sometimes the society view.This Chapter tentatively present the idea of “Subjective chance +Appropriate endeavor – Exception” to judge whether or not the criminal has the Possibility of Unrechtsbewusstsein.Conclusion: Neither Unrechtsbewusstsein nor the cognition of social harmfulness is the necessary part of the Crime Deliberateness,which means that Unrechtsbewusstsein and Possibility of Unrechtsbewusstsein has no place in traditional Tatbestand,and Verbotsirrtum has no influence on the confirmation of Crime.However,Possibility of Unrechtsbewusstsein should be an imputation factor in Criminal Responsibility,and we need to pay attention to the “Crime –Responsibility – Punishment” structure again.Practically,when criminal propose the Verbotsirrtum,we need to examine whether or not the Possibility of Unrechtsbewusstsein exist.If the Possibility of Unrechtsbewusstsein exist,judge could use his discretion to decide to alleviate the punishment;If he possibility of Unrechtsbewusstsein do not exist,the use of under-statutory sentence and non-penalty punishment would be possible.