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On The Theoretical Position Of Illegalitity Cognition

Posted on:2021-03-30Degree:MasterType:Thesis
Country:ChinaCandidate:X J LiFull Text:PDF
GTID:2416330629450787Subject:Criminal Law
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In the aspect of substantive law,Chinese criminal law have no effective response to the problems of the illegality cognition,judicial practice consists with the the principle of "Ignorantia juris non excusat".However,with the emergence of a large number of administrative offenses in modern society,the deepening of globalization and internationalization degree,the principle of "Ignorantia juris non excusat" also gradually has been moved.In recent years,typical cases represented by "Zhao Chunlan's case of illegal gun possession","ZhengZhou university student's case of stealing the birds" and "Lu's case of digging out the Cymbidium" have appeared in people's horizons.The judgment results of these cases have serious conflicts with the general understanding of the public.Illegality cognition theory is mentioned repeatedly as these cases,but the theoretical research results have not play a important role in the judicial practice.On the one hand,that reflects that the theory of Germany and Japan don't fit our practice,on the other hand that shows the judicial organs remain to insist the principle of "Ignorantia juris non excusat".By comparing law research of the illegality cognition,this paper sorts out the Chinese and foreign history evolution of the principle of "Ignorantia juris non excusat",defines the concept of illegality cognition,finds out the difference of the location of the illegality cognition between the German and Chinese theoretical framework.And basing on the native criminal law theory and judicial practice,this paper explores the location of illegality cognition of native criminal law theoretical framework and elaborates on the criterion of judicial practice.This paper consists of four parts:The first part is an overview of illegal knowledge.It mainly introduces the collapse of the principle that "Ignorantia juris non excusat." It points out that the principle of "Ignorantia juris non excusat" is no longer applicable in modern society.There is no room for unnecessary illegality cognition.Besides,the first part points out that the concept of illegal cognition and the attitude of judicial practice are ambiguous,which is ready to be clear.The second part is the investigation of the orientation of illegality cognition in the German hierarchical crime theory system.It introduces the background of the orientational conflicts of illegality cognition in German criminal law.It sorts out and evaluates the theories,taking the intentional theory and responsibility theory as a main line in German criminal law,analyses the causes of orientational conflicts of illegality cognition.The third part is the systematic the orientation of illegality cognition in the four-element crime theory system.It analyzes and examines the theoretical possibility of the theory of illegality in China's crime theory system.It also examines the methodology and the responsibility theory of the four-element crime theory system.It analyses the possibilities ofrelated doctrines under the background of the four-crime crime theory system in China and gets the conclusion that strictly intentional doctrines should be insisted in China.The fourth part is the native application of the theory of illegality cognition.It analyzes the difficult problems of the judicial application of the theory of illegality cognition.It puts forward the basic method of judicial practice of illegal knowledge and puts forward the determination criterion through the positive criterion and the reverse criterion.
Keywords/Search Tags:Illegality Cognition, Necessary Illegality Cognition, Strict Intent Theory, Theory of Culpability, Responsibility Theory
PDF Full Text Request
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