A Study On The Theoretical Disput Of Wrong Understanding Of Illegality

The ancient Roman law principle of "not knowing the law but not exempting from liability" has a profound and lasting impact on our country,and will not affect the assumption of criminal responsibility when the perpetrator makes a wrong understanding of illegality.However,with the occurrence of some sensational cases in recent years,when the defendant defended on the grounds of wrong understanding of illegality,but was met with the indifferent attitude of the judicial organs,public opinion was constantly controversial,the public questioned the fairness of the court's judgment,and the authority of the law was thus destroyed.Therefore,the long-standing topic of the theory of wrong understanding of illegality has to be mentioned again and again,and its importance has to be paid attention to.At present,the voice of the academic circles in our country supporting "the necessity of understanding illegality" is rising day by day.Therefore,how to apply the wrong theory of understanding illegality in our country has become a topic that the academic circles cannot avoid.The theory of wrong understanding of illegality originates from the "three-stratum" crime theory system of civil law countries,and the understanding of illegality is placed in the "responsible" stratum.However,there is no "accountability" class in the "four elements" crime constitution in our country,which leads to the theory becoming "nowhere to place" under our country's crime theory system.Whether the understanding of illegality can be placed among intentional elements has become controversial.China has followed the criminal law theory of theformer Soviet Union and has always taken social harmfulness as the content of criminal intent and negligence.However,the "intrusion" of wrong understanding of illegality has impacted the theory of social harmfulness.Whether the content of criminal intent is the understanding of illegality or the understanding of social harmfulness has been debated endlessly in the academic circle.The vacillation in theory makes the legislation have no theoretical basis for reference,and finally the judiciary is helpless in judicial practice.Based on this,this paper analyzes and clarifies the orientation and realization of the theory of illegal cognition errors in China's criminal law theory from the following aspects: the theory of illegal cognition necessity,the theory of illegal cognition errors and social harmfulness,the relationship between illegal cognition errors and intention and responsibility through sorting out the relevant theories and viewpoints of foreign illegal cognition errors theory,and based on the theoretical confusion and controversy in this aspect in China.Furthermore,on the basis of combing the main foreign legislative models and the specific practices of foreign judicial practice,the paper points out the ways to solve the theoretical disputes and finally provide scientific and clear guidance for the judicial practice in our country.