Application Of The Illegal Cognition In The Cases Of "True Crime For False Gun"

As the max destruction weapon,guns have composed a greater potential risk to the Social Security control,so the state should implement the strictest control for guns.This concept has a strong public opinion in our country.97 Criminal Code has the pre-holding gun-related crime and strict criminal law network,which has positive significance for the victory of the"the second crackdown"struggle that aims at cracking down on gun related violent crime.In order to consolidate the results of the crackdown,while in accordance with the needs of the real social security control for the rapid development of our country's market economy,the Ministry of Public Security has adjusted the identification standard of guns in 2010,which adjusted the critical value of original muzzle specific kinetic energy to 1.8J/cm~2.It should be said that the sharp reduction for the identification standard of guns has been highly recognized by the city managers at that time,however,due to the lack of popularization after the release of the Regulations,the inadequate daily supervision and law enforcement,it makes the so-called"simulation gun"and"toy gun"rampant,which has mislead understanding of the easy-to-understand standards of"guns"for people,and it has induced a large number cases of"true crime for false gun"in judicial practice.In addition,the lack of technology at the legislative level that has made the specific judicial person in a dilemma to suffer from criticism,the public opinion fermentation of illegal possession of guns for Zhao Chunhua case that has push this judicial chaos to the extreme.Therefore,the Supreme People's Court and the Supreme People's Procuratorate has jointly issued the"Reply"expressly requiring in March 2018,"when dealing with the similar cases,we should comprehensively evaluate the social harmfulness of the behavior,while the factors of the material of the guns involved,the purchase purpose and the subjective perception of the actor should be fully taken into account.The"Reply"has provided a solution to deal with the case of"true crime for false guns"from the perspective of cognition errors of facts and comprehensive assessment of social harmfulness,however,the root cause of the criticism in Zhao Chunhua case is not about whether they have a wrong understanding of guns,but there is a wrong understanding of the illegality of the provisions for the special permission,also the ignorance and even misunderstanding of the law for citizens are the fault of not taught by the state,so that when transfer the adverse consequences to individual citizens in this case is called"the state is unreasonable".The theory of error in cognition of illegality plays an important role in the law governance system of modern state,especially in the era of the advent of legal crimes,it needs to build a reasonable risk distribution mechanism between the national authority and the protection of legitimate rights for individual citizens,but due to the influence of criminal law theory of Soviet Russia and its own criminal theory system for our country,which has stuck to the old concept of"If I don't know the law and I cannot be exempted from liability"for a long time,while excluded the rationality for the error in cognition of illegality that affects conviction and sentencing,it not only could harm and violate the dignity and freedom of citizens,but also ultimately damaged the judicial authority because it is difficult to obtain public approval when handle the case of legal offenders like Zhao Chunhua.It is undeniable that the introduction for the theory of illegal cognition,we have always faced a theoretical problem that how to draw on it,but the author do not agree with the views that put forward by some scholars in our country in between that either or,it cannot be both and compatible.The author believes that as long as we drew on the reasonable elements of criminal law methodology in German and Japan,while redefine the subjective crime of criminal theory system in our country,so that we can break through the current dilemma of theoretical research,also the theory of illegal cognition in our existing criminal theory system can be reasonably established,the specific methods are as follows:First,distinguish the nature of the factual elements and normative evaluation elements of crime;Second,distinguish the level of the factual elements and normative evaluation elements of crime.The factual elements belong to the first level element for the establishment of subjective crimes,and the normative evaluation elements belong to the second level element for the establishment of subjective crimes,the factual elements belong to the objects of fact that must be disputed in criminal proceedings when the allegation is proved,while the normative evaluation elements may not become the factual object of criminal proceedings.Only when the perpetrator raises the defense of illegal cognition,the prosecution and defense parties shall provide evidence and debate on the perpetrator's defense.As for the treatment of wrong situation of illegal cognition,which should distinguish two situations of inevitable mistakes and avoidable mistakes,for the treatment of inevitable mistakes,the crime shall be ruled out;for the treatment of avoidable mistakes,the avoidable factors shall be comprehensively examined,and give it some discretion.The"Reply"of the Supreme People's Court and the Supreme People's Procuratorate has a positive significance in alleviating the handle disputes on the case of"true crime for false guns",but as the comment of some scholars,representatives of the National People's Congress and specific practitioners in our country,the"Reply"is trapped in a variety of factors,there are two core issues that need to be solved in the trial of the"true crime for false guns"in practice:whether the gun shaped object involved in the case is a gun that in the sense of criminal law.There is no clear explanation on the illegal cognition involving guns for defendant,while it is proposed in principle that the comprehensive evaluation of social harmfulness should be handled and dealt by the judicial practice,but it lacked normative dimension and scale for the social harmfulness,and investigated the size of criminal responsibility by using the standard of social harmfulness in some abstract dangerous crimes,it is inevitable that there will be a subjective will factor.Therefore,the"Reply"can only be said to be a beginning or only a medium-term solution to fundamentally solve the current problem of"true crime for false guns".It is reasonable to establish the theory of illegal cognition that can meet the needs of the actual development of criminal law theory in our country,which can make up for the lack of current means to solve the cases of"true crime for false guns",and then to provide reference for the legal crime problem that similar lack the understanding of normative evaluation elements,that is our current pragmatic move.