Study On The Illegal Consciousness Of Administrative Crime

With the extensive use of administrative crime in the legislation of criminal law,public hotspot cases have aroused public debate.However,as the judicial practice is still limited to the traditional position that "Ignorantia juris non excusat".In the theory,the illegal consciousness must have become a basic consensus,while there are still controversies and shortcomings about the specific content,system positioning,and judgment methods of illegal consciousness.Therefore,improving the theory of illegal consciousness based on the characteristics of administrative crime,on the one hand,can make the determination of innocence and lenient punishment in special cases have theoretical legitimacy and practical operability,thereby ensuring the judicial authority has important practical significance.On the other hand,it can also promote further research on principle of culpability,discuss the relationship between principle of culpability and criminal policy,and reflect on the elements of the criminal system.In the first part,we should reflect on the current status of the theory of our country that distinguishes between the formal illegality and the substantive illegality,so as to focus the core of the theory of illegality consciousness on the formal illegality,that is,the cognition of normative violations.The current problems of the theory of administrative criminal’s illegal consciousness are as follows:firstly,according to China’s criminal legislation,what is the relationship between the illegal consciousness and the criminal intentional can reasonably construct the principle of culpability;Secondly,it is necessary to clearly distinguish the legitimate grounds of the Tatsachenirrtum and Unrechtsbewusstaein,and how to deal with the misunderstanding of predecessor administrative regulations in order to reasonably coordinate the purpose of administrative regulation and the guarantee of human rights freedom;ultimately,the judgment of the possibility of illegal consciousness should have a judging path and judgment standards,and construct a substantive and detailed judgment methodIn the second part,the argument about the theory of illegal consciousness can be reduced to how to define criminal intention and how to understand culpability.Taking the relationship between illegal consciousness and intention as clues,we can reveal the differences between intentional theory and responsibility theory.The content of crime intention delimits the scope of condemnation,so it is not possible to conduct a one-time normative evaluation of illegal consciousness,but should be divided into two stages-the intentional and illegal consciousness-separately.Because the crime intentional and illegal consciousness are different in the essence and the mechanism,they should be located separately at ranks of culpability.The cognition of meaning in crime intention will necessarily involve the judgment of value.It is necessary to acknowledge that intention has the effect of awakening illegal consciousness and to ensure the significance of guaranteeing the subjective aspects of the principle of legality.In the case of administrative crime,when judging the crime intentional,it is necessary to distinguish between the offenders and the referee as different evaluation.Based on Article 14 of China’s criminal law,the cognition of meaning in crime intention is the offender’s awareness of harming to the society,which needs to reach the level judged by the referee as social harmfulness.Illegal consciousness is the cognition that offenders of violation of criminal law in the formal sense.In the third part,the illegal consciousness is lack of substance and is formal.The mistake of law is more indifferent to right and condemnable than the mistake of fact Therefore,it is reasonable to put forward only possible standards for the degree of consciousness of illegality.Constructed in the second part,the relationship between crime intentional and illegal consciousness is used as the substantive criterion for distinguishing between the mistake of fact and the mistake of law,so as to limit the scope of mistake of law to the misunderstanding of whether violates criminal law in the formal sense.About the mistake of the prior administrative regulations:In some administrative crime,due to the neutrality of the regulated behavior value,the public can know the relevant regulations only through specialized studies,and it is difficult to understand the harmfulness of the behavior through the general social values.At this time,the misunderstanding of the prior administrative regulations is a mistake of fact.In some administrative crime,even if offenders are unaware of the existence of administrative regulations,they can use their common sense to recognize the harmfulness of the behavior in a social sense.At this time,the misunderstanding of the prior administrative regulations is a mistake of law.In the fourth part,when estimating the possibility of avoiding a wrong understanding of criminal illegal cognition.First of all,the obligation to investigate the legitimacy must be based on an opportunity to have illegal consciousness.That is,only when the actor understands the relevant administrative regulations or recognizes the harmfulness of the behavior,can be required to investigate the legitimacy of the behavior before activities.Secondly,the criterion for judging the possibility of avoiding a wrong understanding of illegal cognition should be based on the citizen’s average level of normative consciousness,and the offender’s own living environment,professional background,knowledge level,should be used as judgment data.Again,whether such mistake can be avoided also depends on the trustworthiness of the sources of legal information obtained by the actor.Finally,if the actor has doubts about the illegality of the activity,then even if such suspicion cannot be eliminated objectively at all,the actor is deemed to have the illegal consciousness.However,if the activity that the actor intends to perform involves significant interests,the culpability can be waived or mitigated based on the theory of expectation possibility.