A Study On The Exemption Of Illegality Recognition Error

The continuation of the principle of "do not know the law and do not be exempted from liability",on the one hand,stems from the maintenance of the authority of national laws,on the other hand,it is also because when the ethical constraints are highly consistent with social laws,the behavior of not knowing the law is equivalent to the ignorance of social morality,this situation is very small.When the scope of legal regulation is more and more extensive,extending to the areas that are not covered by moral norms,the necessity of understanding law becomes the ideal state of modern society.With the arrival of the era of legal crime,people's "ignorance of law" should not be the object of legal condemnation,but only the people who have inner indifference to or even hostility to the law should be held accountable by the criminal law.Therefore,the recognition of illegality has become the focus of criminal law.In China,the complexity of the theory lies in the fact that the theory of four-element crime constitution is different from that of Germany and Japan,and the necessity of the research on illegality cognition status is questioned.However,it is still a hot topic in the academic circle that how the recognition error of illegality materially affects criminal responsibility.This paper holds a positive attitude towards the research on the status of illegality cognition system.The author discusses the positioning of illegality cognition system,how the illegality cognition error affects the criminal responsibility and how to judge the avoidable of the illegality cognition error by comparing the research method with the case analysis method.This paper is divided into four parts:The first chapter introduces the academic disputes about illegality cognition theory in our country,including the intentional theory and the responsibility theory about the status of illegality cognition system.The discussion of the two theories in German and Japanese criminal law theory is based on the attribution of illegality in the theory of three-class crime.But our country is the doctrine dispute which is based on the difference between the four elements crime constitution and the three levels crime theory system.Also introduced the Chinese scholars about whether intentionally contains violations of knowledge or social recognization of normative content point of view,through the introduction to different theory viewpoint in our country,find out the focus of the theoretical controversy and scholars debate is still unresolved issues,for after text illegality cognition to lay the theoretical basis for the discussion of related problem.The second chapter introduces the origin and development of illegality cognition theory in German criminal law,as well as the exception of "ignorance of law and exemption from liability" which breaks through the traditional principle in British and American countries.The former by law illegality cognition error of legal effect,the latter with the judicial discretion technology for out of the inevitable legal irrtumslehre sin or exemption,and the provisions of the two law systems make the corresponding evaluation characteristics: German and Japanese criminal illegality cognition as factors of responsibility,whether to have possible knowledge as the standard of judging the duty sex,and British and American criminal law is to give judges discretion,knowledge of the legal person error is reasonable judgment,and whether as a deterrent criminal intention according to decide whether to set up the crime.Illegality cognition plays the same role in different forms in two different crime theories,that is,it affects the establishment of crime and the undertaking of criminal responsibility.Moreover,the status of illegality in the two legal systems and the way of the legal consequences caused by the wrong cognition are consistent with the theory of the constitution of crime,forming a good rule of law with rational theory and valid practice.The third chapter is the recognition of illegality theory itself.Firstly,this paper analyzes whether there is normative content in intention,responds to the academic controversy on this issue in the first chapter,and puts forward the viewpoint of this paper: the knowledge of social harmfulness,the knowledge of illegality and its possibility are not the content of intentional knowledge,and only the error of factual knowledge can prevent the existence of intentional knowledge.This does not contradict the definition of intentional crime in article 14 of the criminal law of our country.Secondly,based on China's current legal and regulatory requirements,and responsibility in criminal law,or the need to find a balance between public right and private interest,illegality cognition as will not affect the decision of the crime constitution factors,namely illegality cognition mistake not like German and Japanese criminal law and the liability resistance is the same in the British and American criminal law can stop the establishment of the crime.And the illegality knowledge in the four elements of crime theory can not settle the theoretical dispute,so it puts forward the view that conforms to the theory of our criminal law illegality knowledge system positioning: illegality knowledge in addition to the constitution of crime,become the criminal responsibility elements.This chapter also briefly introduces the development of the theoretical research on criminal responsibility,which shows that criminal responsibility is no longer a simple negative legal consequence,it contains the legal principle of punishment for the possibility of the perpetrator's condemnation.But this imputation possibility can not be tested in the four elements,but through the recognition of illegality and the judgment of its possibility reflects the imputation possibility of the actor,and reflects and implements it into the criminal responsibility.The fact that the perpetrator of the crime does not have the knowledge of illegality and weakens the degree of illegality and the degree of guilt reflected in his behavior should be considered in the process of imputing criminal responsibility as the reason for the remission of punishment.At the same time,the legislation stipulates the legal consequences of the illegality cognition error,and clarifies the illegality cognition as the factor affecting the criminal liability.The fourth chapter introduces the cases and judicial precedents that have been debated by scholars in China in recent years.Through the analysis of typical cases,the author argues again whether the case should be and how to reduce the criminal responsibility according to the viewpoint of this paper,so as to prove the feasibility of this viewpoint.In the case of zhao chunhua's illegal possession of guns,the defendant's behavior has met all the constitutive requirements of the charge,but there is no illegality awareness of his claim.Therefore,it is necessary to prove his illegality awareness after the constitution of the crime and decide whether criminal responsibility can be relieved.In the case of ye's illegal absorption of public deposits,the defendant is an employee of the financial industry,and the standard of general people in the industry is enough to identify him as having illegal knowledge,and the defense of his illegal knowledge error cannot affect his criminal responsibility.In the case of death caused by negligence of zhang xx,the defendant could not realize that the over-standard electric battery car would be identified as a motor vehicle,so the court took the lack of illegal knowledge as the reason to deny the conviction.From the comprehensive facts,there is no illegality cognition error in the actor.The conviction to overturn the charge is also due to the principle of legality.Conclusion : The cognition of illegality and its possibility cannot be the subjective factor of crime,and the intention only includes the cognition of the objective fact of crime.The traditional mode of psychological responsibility theory makes the criminal constitution unable to contain the understanding of illegality,but it can be regarded as the element of imputation in the criminal responsibility,which expands the new field of normative responsibility theory.In addition,besides the constitution of crime,illegality knowledge cannot affect the establishment of crime,but only through the investigation of the possibility of impugning the perpetrator,and reflected in the discretion of criminal responsibility,the legal consequences of reducing or exempting punishment will occur.As to whether there is or should be illegal knowledge,we should judge by the possibility of illegal knowledge,establish a judgment position,judge whether the actor has the opportunity of illegal knowledge,and try to eliminate the doubt of legality.It can be considered that the possibility of illegality cognition is a measure to judge whether the actor has the knowledge of illegality.