In the past few years,it is reported some "unusual affairs",such as "An old women who set a stall to fight the balloon in Tianjin","the university students who take birds out of the nest"and so on.These cases have aroused the widespread public attention.The public opinion generally thinks that the punishment is too heavy.Even some thinks it should remit a punishment.It's not difficult to find out something in common among these cases,all of them claimed that they didn't realize their behaviours had already broken the law,or even constitute a crime.This leads to the illegal cognition in the theory of criminal law.In 2005,the second "National Symposium of young and middle-aged criminal law experts"was held in Southwest University of Political Science and Law.The theme was "illegality knowledge".Many famous scholars published essays to discuss the illegal cognition after the conference.There were various remarks on how to understand the position of illegal cognition in Chinese criminal law system and the discernment standard for it.While the practice field was cautious about the cases which fail to recognize the illegal cognition.The most failed to confirm its impact on the sentence of guilt and adjudication of punishment.This essay takes the illegal cognition as research object,according to the analyze and generalize of the paper of judgment in application from 2013 to 2018,summarizes some problems in the application of criminal law in criminal practice.By organizing the related theory and analyzing the connotation and extension of the illegality knowledge.Looking for the substantive status for the illegality knowledge in the theoretical system of criminal law in China.Discussing the standard?criteria?proof and burden of proof,as well as the impact on sentencing of the judgement possibility of the illegal cognition in practice.This essay divides into three parts:The first chapter is about the problems and influence of illegal cognition application in criminal law.According to the investiagtion about illegal cognition in application in judicial practice from 2013 to 2018,this chapter reflects the current judicial situation by the types of charges involved?whether the defense lawyers fully explained the reasons for their defenses,and whether the court responded to them,concludes the existing illegal cognition problems in application of criminal law.First,there are different understanding in the content of the illegal cognition in the judicial practice.Second,the judicial authorities hold different views.Third,the judicial identification standards do not unify.These problems make it difficult to convict someone if he or she claims that his or her lack of understanding of illegal cognition.Then the Judicial evaluation will meet dilemma.It will cause the contradiction of "same case,but different judgments".Some of the cases need to have a second trial,which will affect the judicial authority.The second chapter is "the theory organizing and evaluation of the illegal cognition",this chapter introduces to support the theory or not and its historical development,analyzes the reasons why we need to say something about the illegal cognition more than to keep silence.In order to lay the research foundation and the framework,it defines the meaning and represenation of the basic conception about the illegal cognition,and points out that the illegal cognition means that although the parties can fully realize the fact,they believe that their behaviours are not illegal or could not prohibit by law.The "law"in the prohibit means the common recognization of the law.Since the current general theory of crime in China is the traditional four elements of crime theory.The prohibit hasn't been written into our criminal law.It brought forth many arguments in criminal theory and application field when the term entered into our country.Including whether the prohibit act the key factor in the intentional crime case?The relationship between the prohibition and the social harmfulness recognization?The author presents his own opinions on these problems,and advocates that the possibility of illegal cognition should be studied as one of the element to judge the liability in the criminal liability.The third chapter is about"the judgment standard of the possibility about the illegal cognition".Our researchers haven't explored if the actors have the judgement method about the illegal cognition.This chapter believes that we should take the actors as the main,and the others as the auxiliary position.To analyze the understanding objective obstacles about the legal provisions and norms of the parties,as well as their inevitable illegal cognition mistakes.The chaper also discusses how to prove the illegal cognition of the parties and how to distribute the burden of proof between the prosecution and the defense.The fourth chapter is about "how to handle the wrongdoer of illegal cognition",the possibility of illegal cognition as an independent factor to bear criminal responsibility,this chapter advocates that the concept of possibility of illegal cognition only coexists with the legal offence,there is no illegal cognition deviation in the category of natural offence,when the situation of illegal cognition deviation is inevitable,the establishment of the resistance responsibility will work,When the illegal cognition can be avoided,the actor fails to recognize correctly and does not fulfill his duty of care,then the punishment could be lighter or mitigated in sentencing. |