The Research On The Institutional Status Of Illegality Awareness In The Criminal Composition Of Our Country

The ancient western society strictly adhered to the trial principle "unawareness of law,no exemption",but with the improvement of the idea of civilization of the rule of law and the reality gradually become complex.The application of " unawareness of law,no exemption " has been shaken gradually,the judicial jurisprudence and legislation in vast majority of Western countries has been loosened.China also becomes alert in the treatment of illegality awareness.For various reasons,the legislation has not been able to directly recognize its reasonable status,and there is great conflict in the academic community around the two main theories of illegality awareness: one party supports the intentional statement,that is,to advocate the illegality of the wrong understanding is intentional;It is considered that the lack of illegality awareness does not affect the intentional establishment,but only has an impact on the responsibility.These conditions make the theory of illegality awareness hardly guide the judicial practice.Therefore,the first and second parts of this paper mainly focus on the historical changes of illegality awareness and its theoretical settlement,which more systematically combed the Chinese and foreign illegality awareness from ancient times to the present development of the vein,clearly define the importance of incorporating illegality awareness into the system status,introduce and evaluate the current civil law system of the three mainstream views,and lay the foundation for the post-text innovation demonstration.The third part is the key chapter,which expounds the status of illegality in the criminal composition of our country.Whether intentional or responsible,these are imported from German and Japanese theory,and are of little significance to direct transplantation or the "four elements" of China’s flat-coupled criminal composition system.Therefore,we must reflect on the two theories,especially the reasonable factors of the responsibility theory,and use the method of legal interpretation to connect it with the legislative ideas of the current Criminal Law,so as to seek the basis for the illegality of understanding and positioning.The author agrees with the basic view that the understanding of illegality is the element of intentional cognition,but the principle of responsibility embodied in the responsibility statement also reminds that the awareness of illegality should also radiate more broad content in criminal law.This is because responsibility encompasses not only resin,but also prevention.The thought of retribution is reflected in the Criminal Law,which mainly manifests itself as the definition of the concept of crime in the general rules,and the sub-rules specify in detailthe different categories of crimes and the specific crimes under the category of crimes.However,there are also many statements of lightness,mitigation and exemption from punishment in the sub-rules,which confirm that the purpose of prevention,as a complementary element,is also involved in the normative role of responsibility.Therefore,the responsibility to the illegality of the understanding of the positioning of China’s criminal composition system still has the significance of reference to its reasonable core.Although its sense of responsibility refers only to the narrow third layer of "responsibility",the responsibility contained in the Criminal Law is a more superior concept of responsibility,including responsibility.However,both are functionally designed to correct whether the acts that initially correspond to the criminal composition of their respective jurisdictions are truly subject to criminal condemnation.With the explanation of the meaning of responsibility and its correspondence with the general rules of the Criminal Law,it is logical to conclude that although the awareness of illegality is intentional,it has the function of normative responsibility.This paper further considers that the possibility of illegality awareness should be an overconfident fault of the cognitive element.Only with such a possibility,it can be considered to have the fault norms of impracticality;Unlawful awareness is not a factor that distinguishes intentionality from negligence,and the possibility of illegality awareness is the boundary stone that distinguishes the negligence of overconfidence from negligence.In view of the illegality of the understanding of the illegal content,this paper adheres to the view of the violation of the criminal law norms.From the perspective of logical argument,it criticizes the defects of the former legal norm and the overall legal norm.Especially,it points out that the scope of illegality of understanding is delineated in the criminal law norm,which does not mean that the perpetrator is not punished.As long as he can be held accountable from the perspective of civil law and administrative law,he should be punished by the corresponding law,echoing the adherence to the modesty of criminal law.As to the relationship between illegality awareness and social harm,the author thinks that illegality awareness is the subjective element that the perpetrator should have without realizing the social harm.The author points from the aspect of the regulation function of criminal law,and argues that illegality awareness plays a more important role than social harm in connecting static legal provisions and dynamic restriction,thus proving that there is a closer relationship between illegality awareness and the reproach possibility of the perpetrator’s act of violatingthe law.Based on the same argument logic,the author puts forward the same need for illegal understanding in natural offenders,and there is no constant estrangement between natural offenders and legal offenders.Behind natural offenders is the basis of raspatory in support and statutory crimes is the prevention policy,combined with the current judicial practice of raspatory and prevention policy intertwined with each other.The need for prevention purposes of the situation is becoming more serious trend,which thinks that the illegality of understanding is the most reasonable to the intentional cognitive elements.However,the illegality cognition is not the element of distinguishing between intentionality and negligence,and there is also the possibility of illegality awareness in the negligence of overconfidence,which is used to differentiate it from negligence.In the fourth chapter,the author thinks that the judgment principle of illegality cognition should be based on the ability of the identifiable perpetrator,taking into account the understanding of the general public.How can we expect the perpetrator to have the general level of social awareness? There are three main types: 1.Objectively,there are obstacles to obtaining the correct standard evaluation.2.There are obstacles to obtaining the correct standard evaluation of law.3.It is difficult for the perpetrator to question whether his conduct conforms to the norms of the law.Regarding the determination of several illegality misperceptions,in addition to the misperception of specific legal provisions,"the perpetrator recognizes that his behavior violates the A crime but does not know that the actual violation of the B crime" situation,it can only be found that the perpetrator’s crime intentionally limited to the A crime,and B crime cannot be added in the punishment.Other circumstances do not affect the crime establishment,which can be dealt with law accordingly.If the prosecution party is entirely responsible for the proof of illegality,which is not conducive to the protection of the defendant’s rights in some cases.It may also lead to some perpetrators escaping the law,so the allocation of burden of proof needs to be adjusted appropriately.In some of the more specific circumstances in the statutory category of criminality that requires a large number of unlawful recognition evidence,the burden of proof should be proved first by the perpetrator.The specific actions are as follows: first,the judge is to judge whether the burden of proof needs to be reversed,After the determination is given by the defender(only prove that there is no knowledge of the particular professional or domain covered by the offence),the prosecution will re-test the defender’s evidence,and the defender may then continue to respond.