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On Cognition Error Of The Amount In The Theft

Posted on:2022-06-02Degree:MasterType:Thesis
Country:ChinaCandidate:W W ZhangFull Text:PDF
GTID:2506306725465784Subject:Law
Abstract/Summary:PDF Full Text Request
The amount in theft is the amount of the economic value of the object of the crime.Under the qualitative and quantitative model of China's legislation,the determination of the amount of the crime is often inseparable from the determination of the crime.As far as the amount of theft is concerned,it would be contrary to the doctrine of responsibility to identify it as an objective condition of punishment in a narrow sense,there is also a logical reasonableness issue in identifying as objective over elements,while it would be incompatible with the existing "three-tier"crime theory system to identify it as a punishable element of illegality.The amount of the crime as a constituent element can make our legislative model fit with the hierarchical crime theory system,in line with the function of the amount in the criminal determination.Based on the fact that "amount" is a constituent element,the criminal intent of theft requires the perpetrator to know the amount of the crime,and in terms of the degree of knowledge: first,the knowledge of the amount of theft can be general intent;second,the specific intent is not required to achieve precise and specific;finally,the knowledge of the amount of theft includes "knew" and "should have known.The "amount" rather than "a large amount" as the object of knowledge,in the error theory,the amount of theft cognition error belongs to the factual cognition error,but not the object error;belongs to the specific cognition error;belongs to the composition of the elements of cognition error,specifically the social evaluation class of the normative elements of elements one.For the amount of cognitive error,the legal and specific compliance can not provide an effective basis,we should return to the basic principle of factual error of knowledge-subjective and objective unity,based on the understanding and application of the principle to derive the corresponding rules of adjudication.In judicial practice,for the amount of theft cognition error,first,should clarify whether there is a cognition error,according to the "parallel evaluation rules" to judge;second,should identify the perpetrator belongs to the overestimation of the amount of cognition error or underestimation of the amount of cognition error;finally,according to the unity of subjective and objective to make a specific judgment.In the case of overestimation error,attention should be paid to the distinction between attempted theft and inability to commit.In the case of an underestimation of the amount,if the perpetrator subsequently learns the specific value of the object of theft and continues to possess it,the crime of embezzlement can be determined.
Keywords/Search Tags:Criminal Amount, Intentional Recognition, Normative Elements, Cognition Error, Unity of Subjective and Objective
PDF Full Text Request
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