Theoretical Research On The Misunderstanding Of Illegality In Criminal Law

As criminal legislation continues to develop in China,the increasing difficulty for Chinese citizens to know and understand the legal norms has also led to the frequent occurrence of cases like “Illegal Sale of Parrots by Wang Peng” that have something to do with the error of cognition of illegality and attracted much attention of public opinion.This also indirectly indicates that the judicial trials ignoring the theory of error of cognition of illegality can not only cause unacceptable results but also greatly reduce judicial credibility,so it is urgent to use the theory of error of cognition of illegality and take practice as an orientation to solve related problems in judicial practice.Overall,the judicial practice in China has at least the following shortcomings the handling of cases related to the error of cognition of illegality: vague attitude,unclear concept,and indefinite judgment criterion.Regarding the above problems,this research combines with the judicial practice and related theories and draws on relevant experience of Germany and Japan in the theory of criminal law and judicial practice to respond to the realistic expectations in China for the theory of error of cognition of illegality through the following four parts:In order to solve the negative or noncommittal attitude towards the necessity of cognition of illegality in judicial practice,the first part summarizes the following six reasons combined with the opinions of scholars who hold a negative attitude: heteronomy of law,stability of law,contradictoriness of punishment,theory of responsibility,ignorance of the law excuses no one,and deliberate litigation.The academic refutation of these six reasons makes sense but lacks systematicity and fundamentality,so it is necessary to review and analyze the formation process and causes of the negative attitude and combine with the internal and external perspectives of criminal law dogmatics to systematically negate the existence basis of the negative attitude.In order to solve the unclear concept of error of cognition of illegality in judicial practice,the second part classifies the concepts in judicial practice and theories into three categories: error of cognition of illegality in pre-legal norms,error of cognition of illegality in common laws,and punishable error of cognition of illegality.Based on the analysis of German and Japanese theories of criminal law,it is not difficult to find that the error of cognition of illegality in pre-legal norms confuses law and morality,while the error of cognition of illegality in punishable penal regulations confuses lawlessness and accountability and too harsh requirements are added to the cognitive subject of the error of cognition of illegality.On the other hand,the error of cognition of illegality in common laws effectively solves the above shortcomings,and the criticism by relevant theories on it makes no sense.In addition,according to the disputes between monism and relativity on illegality,the theory on the error of cognition of illegality in common laws is also more logically complete than other theories.In order to solve the indefinite system status of error of cognition of illegality in judicial practice,the third part pointed out the confusing discussion on this issue in the theory of criminal law in China and focuses on two aspects.Based on the analysis of judicial practice,it is not difficult to find that,in addition to judgments with unclear viewpoints,Chinese viewpoints on judicial practice can match the theoretical classification of the relations between error of cognition of illegality and intention: strict criminal intention,restricted criminal,legal error quasi-intention,and irrelevance.Based on the analysis and comparison of the advantages and disadvantages of these four theories,it is not difficult to find that strict criminal intention tends to confuse law and morality and may lead to unacceptable loopholes in punishment,while restricted criminal intention tends to confuse intention and error and has logical problems in its foundation,the theory of personality liability.On the other hand,there was no need to further discuss legal error quasi-intension that has nothing to do with legislation in China.Therefore,the theory advocating irrelevance between error of cognition of illegality and intention makes more sense than the other three theories.In addition,error of cognition of illegality is not suitable for four-element crime constitution,and the responsible class in three-class crime constitution theory is the true destination of error of cognition of illegality.Finally,error of cognition of illegality that is essentially different from anticipated possibility and capacity for responsibility should not be equated with other elements of responsibility.In order to solve the indefinite judgment object,criterion and method unknown in judicial practice,the fourth part summarizes the German and Japanese experiences in the theory of criminal law and judicial practice into the following three aspects.First,both countries tend to take the possibility of cognition of illegality as the judgment object;second,both countries tend to integrate the judgment criterion for actors with the parallel judgment criteria for ordinary people;third,both countries tend to build the judgment method for error of cognition of illegality with general rules and supplement different types of situations in judicial practice.It is both logically self-consistent and practically economical for China to take the possibility of cognition of illegality as the judgment object of error of cognition of illegality.In addition,in order to avoid narrow vision of judgment,it is necessary to recognize the differences between the judgment standard for actors and the parallel judgment criteria for ordinary people and integrate the two.Finally,it makes sense for China to use a prevailing method to judge the error of cognition of illegality with criminal presumption as the core in judicial practice,but the theory on error of cognition of illegality essentially reflects the equal distribution of duties of notification and knowledge of law between the state and citizens.In order to protect human rights rationally,the theory on error of cognition of illegality should still aim at maximizing the private interests of citizens.Therefore,the presumption process should follow the two-level review model of first state and second citizens,and the requirements for citizens to fulfill the duties of knowledge of law should be lower than requirements for the state to fulfill the duties of notification of law.In addition,in order to avoid other exceptions,judicial practice should also take actor evaluation as the core criterion to examine the possibility for the actor not to internalize the norm.Finally,the judicial practice in China should form benign communication with relevant theories to achieve more flexible judgment on the error of cognition of illegality.