The Discussion On Errors Of Illegality Cognition In Criminal Law

The coming of the age of regulatory crimes highlights the complexity and importance of the mistake of law.It is often impossible for the public to judge whether the behavior violates the law through the ethics developed by existing knowledge and quality,because statutory offenses are legally forbidden based on the needs of state management and have weak anti-ethics.Moreover,account for the constituent elements of many statutory offenders are complexity and professional,it is difficult for professionals to ensure their understanding is accurate,not to mention those citizens who rarely touch the law,even if they take all reasonable measures to learn the law,there still remain risk of making errors.In addition,the legal gap and theoretical controversy of the mistake of law make the mistake of law become a topic of great concern in criminal law theory.and whether and how the mistake of law affect citizens' criminal responsibility has become a major problem in criminal law theory and practice.The first chapter "Overview of the mistake of law".This chapter introduces the basic concepts of illegal misunderstanding,the content of the law violated by illegal misunderstanding,and the judicial status.Illegal misunderstanding refers to the fact that the actor recognizes the facts that meet the constitutive requirements,but mistakenly recognizes that his behavior is allowed by law.It includes two cases wherethe actor misidentifies the law as illegal and unknowingly violates the law.The content of the law violated should be a general legal norm and not limited to criminal law.By examining the judicial status of the problem of illegal misunderstanding,it can be found that although the maxim of "'Ignorance of the law is no excuse" is still deeply rooted in judicial practice,some changes have also occurred.Some judges have begun to pay attention to the defendant's wrongful understanding of the law and consider its impact on convictions and sentencing.The second chapter "The relationship between misunderstanding of illegality and criminal liability".This chapter first introduces three main views on the misunderstanding of illegality affecting criminal liability.Among them,"Unnecessary knowledge of illegality" and "Necessary knowledge of illegality" both have some reasonableness,but also have their own limitations.Thus,this article advocates inserting the "error avoidability" intermediate link between the misunderstanding of illegality and criminal liability,as a regulating valve that may cause unreasonable and unfair situations in cases when maintaining legal order.Therefore,the legal effect of the mistake of law depends on whether the actor can avoid the mistake.At the same time,the article analyzes the rationality of this view from three aspects:the first is to meet the need for a balance between the principle of responsibility and the principle of prevention;Second,it is in line with the current status and judicial practice of misunderstanding of illegality in foreign countries.third,it is consistent with the development trend of China's judicial practice.Finally,the article briefly explains the relationship between the avoidability of wrongful understanding and the possibility of illegality.The third chapter "Methods for Determining Illegal Misunderstandings as Avoidable".Considering that the premise of the discussion is that the perpetrator has no illegal knowledge,therefore,this chapter first introduces the method of presumption of existence of illegality.Secondly,researching on the methods of determining that errors are avoidable.In terms of judgment standard,this article advocates the use of the "average person at the same level",which means referring to the actor's own social status and his personal abilities,the actor's cognitive ability isdivided into different levels,and the average human capacity in the corresponding level is used as the judgment standard.In terms of judgment methods,this article argues that assuming that errors are avoidable,two conditions need to be met.One is opportunities exist to prompt the agent to think and query whether the behavior is legal,the other is that the perpetrator does not take the opportunity to make full efforts for illegal inquiry.The forth chapter "Distinction between standard mistake and mistake of law".This chapter mainly discusses whether “mistake on normative elements”and“mistake on the administrative penalty ”is mistake of fact or mistake of law.If the defendant has no subjective knowledge of the social or legal meaning of the normative elements,it is a factual error and can exclude intent;if the defendant understands the meaning,and just wrongly explain the definition of the relevant criminal law norms,so that wrongly subsumption of his behavior under the criminal code,it is a mistake of law which does not exclude intent,only when the mistake of law is unavoidable,the defendant is excused.In the case of misunderstanding of administrative regulations,if the perpetrator does not know the administrative regulations or misidentifies the content of the prohibitive regulations,it is a mistake of law;If the perpetrator misunderstands the objective fact that violates the prohibitive provisions of administrative regulations and the fact is objective element of establishing a crime,this is mistake of fact and exclude the intent.