Research On The Application Of The Theory Of Illegality Cognition Error In The Criminal Field Of China

After the theory of wrong understanding of illegality came to China from abroad,although China has not explicitly stipulated it in legislation,it has always adhered to the principle of "ignorance of the law is not exempt from responsibility" in judicial trials.On the one hand,it is to maintain the authority of the laws issued by our country.On the other hand,it is also to condemn citizens’ disregard for the law and lack of morality.In recent years,in order to meet the needs of the country for the prevention and control of newborn risks under the background of the rapid development of economy,science and technology,legislation is becoming more and more frequent,all kinds of newborn laws and regulations are complex,and the era of statutory crime has quietly arrived.Under such circumstances,even legal experts will inevitably have a knowledge gap for some new laws.At this time,it will be inappropriate to hold citizens accountable for their ignorance of the law.Therefore,the understanding of illegality has become a hot topic in the field of criminal law.By comparing and analyzing foreign legislation and precedents,the author summarizes the disadvantages and advantages of the existing theories at home and abroad,and summarizes and studies the commonness and individuality of the problems in China’s unreasonable cases,so as to strive to solve the judicial difficulties of illegal cognitive error theory in contemporary China,under the background of legislative silence and judicial conservatism,summarizes a set of judgment mechanism related to criminal responsibility and punishment for the wrong understanding of illegality,which is suitable for China’s national conditions.The text of this paper is divided into five parts.The first part summarizes the basic case and combs the controversial points of the new case of Anhui farmers catching river shrimp in 2021,which leads to the problems in the application of illegal cognitive errors in China’s criminal field: Today,more and more defendants put forward the defense reasons of ignorance of the law.Is the traditional treatment principle of "ignorance of the law is not exempt" still applicable in China’s current criminal justice practice? In the second part,it mainly summarizes the relevant concepts of illegality cognitive errors,and clarifies the scope of "law" in illegality,the scope of illegality,the concept of illegality cognitive errors and the specific types of illegality cognitive errors step by step.The third part is about the three difficulties of illegality cognition errors that need to be solved urgently at this stage in our country:the blank in legislation,the avoidance in judicature and the contention in theory.This part focuses on the attitude of China’s judicial organs towards cases with wrong understanding of illegality and the comparison of the advantages and disadvantages of several main theories.The fourth part is an overview and comment on the extraterritorial legislative attitude of wrong understanding of illegality and the trend of development in recent years.It is mainly divided into two parts: the civil law system and the Anglo American law system.The comparison between the judicial tradition and the new development is carried out.And the author tries to explore the essence from it to find a perfect path for our country to learn from and improve the practice of legislative and judicial aspects of the wrong understanding of illegality.The fifth part puts forward some personal suggestions on the application dilemma of the theory of illegal cognitive errors in China’s criminal field at the current stage: First,we should abandon the theory of non-necessity of illegal cognition in theory and apply the possibility theory of illegal cognitive to guide justice.Secondly,we should clearly give the legal status of illegal cognitive errors in commutation and exemption of punishment in legislation,and flexibly assist with judicial interpretation and guiding cases.Finally,it is proposed that the review mechanism of illegality cognition error should be established in judicial practice to judge whether the illegality cognition error of the actor who puts forward the defense reason of ignorance of the law can be avoided.The author puts forward some personal suggestions on the judgment path and position choice,in order to make a small personal contribution to the improvement of the relevant system of illegality cognition error in our country.