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Normative Interpretation And Practice Of Illegal Cognition Error

Posted on:2019-01-05Degree:MasterType:Thesis
Country:ChinaCandidate:C LiFull Text:PDF
GTID:2416330596952280Subject:Criminal law
Abstract/Summary:PDF Full Text Request
Illegal knowledge of the error can be described as a "small problem" in the criminal law,although it already has been researched nearly 20 years in theory,but it seems that there is no good solution.The confusion of the theoretical doctrine and the blank silence of the legislation lead to the inability of the judiciary to apply.There are clear legislative provisions and practice jurisprudence in foreign countries.The judge often ignore the illegal cognition errors of the perpetrators in the judicial practice of our country because of the principle of “Ignorantia juris non excusat”.It often leads to the perpetrator unreasonable punishment and is not conducive to the case of equity and justice.From the depths of further thinking,illegal knowledge of the error not only related to the need for illegal knowledge,cognition of social harmfulness,and the system of crime of sexual orientation in the criminal law.But also related to the premise of the error(also known as the illegal facts of the error,the typical is the imaginative defense),The analysis of crime patterns of criminal intent,the criminal negligence,how to prove in criminal procedures.From the macro level,but also related to the basic principles of criminal law,the principle of unity of law order,balance of the principle of responsibility and criminal policy.If we change the perspective,it is not difficult to find that illegal knowledge errors is involved in the conflict of "public welfare" and "private rights",the contradictions of general justiceand individual justice.The illegal knowledge of the errors is an important constitutional issue to some extent.It can be seen,through the illegal understanding of the wrong "a drop of dew",you can "refraction" out of the entire criminal theory building light.We can't simply assume that our country's legislation should be same as foreign country about illegal cognition error.Illegal knowledge of error is of great significance especially in China.The research of traditional criminal law theory about illegality cognition is limited by the times.The re-understanding of illegal knowledge has a new revelation from the historical dimension,the foundation of human nature,and the principle of the rule of law.Illegal knowledge(possibility)and illegal knowledge of error is one of the two sides of the problem,.It is of great significance to build the guidance for judge how to judge illegal cognition error in the judicial practice,to the research of criminal law theory and the identity of the Criminal Law.The full text is divided into four parts,the first part of the article introuduce the theoretical disputes and evolution of illegal knowledge,thus defining the scope for the following discussion.The "illegality" in illegal knowledge is compared with the German criminal law and Japanese criminal law.It is considered that illegality in the context of China should be understood from the perspective of criminal illegality but not limited to this,and the content of illegality should be referred to as criminalization in China.Legal norms,starting from the standpoint of unlawful understanding of necessity,and exploring the relationship between illegal knowledge and social harmfulness,should avoid entanglements with the theory of social harmfulness in the theory of crime intentionality.It is more rational that research the problem of the illeagal of konwledge from the perspective of responsibility theory.The second part of the article reinterprets the illegality of knowledge from the perspective of history,human nature,and the meaning of the rule of law,thus providing theoretical support and grounds for falsifying the culpability of the perpetrator.The third part of the article,by comparing the provisions of foreign legislation such as Germany and Japan,and the theoretical path of misunderstanding of wrongful judgments,believes that it is reasonable to use the inevitability of illegal awareness as a starting point forjudgments.The criterion of "objective opportunity-subjective effort".The fourth part of the article is to classify public security,economic criminal law,and environmental interest into three types of cases that may involve illegal awareness of wrongdoing,and compare and examine the positions and grounds of judgments of different types of courts.From the differences between the judgments and results of the court's judgments,we have abstracted general experiences that can be manipulated,thus constructing a comparatively reasonable model framework for the inevitability of unlawful cognition errors from a metaphysical point of view.“Type division-judgment guidance-Legal Consequences".Of course,the social sciences do not have absolute correct truths,let alone standards that are universally applicable.Whether such models are reasonable,effective and convenient still requires the dual test of judicial practice and criminal law theory.
Keywords/Search Tags:Illegal Cognition Error, Unavoidable, Judgement standard, Practical analysis
PDF Full Text Request
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