Research On Illegality Cognition And Judgement

With the increasing number of statutory offences,the principle of not knowing the law and not being exempt from liability has been gradually shaken,and illegality has been paid more and more attention in theory and judicial practice.At the same time,problems about illegality cognition and judgment emerge one after another in China's judicial practice,and some important cases have also aroused extensive discussion.To understand the practice of illegality cognition in the approach,the author adopts the method of empirical analysis,with the illegality cognition for the keyword search in the vast majority of cases,and extract involving most of the crime of illegal absorb public deposits a case analysis,concluded that the characteristics of relevant cases,and summarized as the main reaction two problems: one is the illegality of the necessity of the knowledge,is essentially related to illegality cognition theory point of view is not unified,and a low response rate of the problem in practice,problems such as obsolete concept;Second,the feasibility of illegality knowledge,in essence,is the illegality knowledge of the judgment rules are not clear,and then in the specific problems without proof,self-talk and other problems.In view of these two kinds of problems,the author analyzes them one by one,and puts forward some opinions in order to help solve the problems.As for necessity,there are many theories about illegality in criminal law theory,which can be divided into two aspects: first,the discussion on the core of illegality;The second is the debate on thesystem positioning of illegality.In the author's opinion,it is more reasonable to take "consciousness of violating criminal law" as the content of illegality knowledge,which not only strictly follows the principle of legality of crime and punishment,but also conforms to the "evaluation standard of layman".In terms of the theoretical system of illegality knowledge,the theory of limited liability regards illegality knowledge possibility as the element of responsibility,rather than the element of intention.It holds that the possibility of illegality knowledge is more reasonable than other views,and more suitable for the specific application in judicial practice.As for the feasibility problem,it is based on the theory of limitation of liability,how to judge the evadability of illegality on the basis of proving the wrong understanding of illegality.Based on the specific identification methods in judicial practice,the author discusses from two aspects: on the one hand,it is the elements of the possibility of recognizing illegality.On the other hand,it is the standard of recognizing illegality and the evasiveness of errors.Based on the views of Japanese scholar keiichi yamanaka and Chinese scholar che hao,the author defines the standard as two steps:the first step is the opportunity to avoid mistakes;The second step is that the actor is not making enough effort.That is,when there is an opportunity to avoid illegality knowledge error,and the actor does not make enough efforts to avoid it,it can be identified that the actor's illegality knowledge error can be avoided;On the other hand,if there is no opportunity to avoid mistakes,or if there is an opportunity to avoid mistakes but the actor does not make enough efforts,then his mistakes are deemed inevitable,that is,there is no possibility of illegality.