The Judicial Determination Of Ignorance Of The Law

In recent years,the new four strange cases are all related to illegal misunderstanding,such as the gun case of Zhao Chunhua in Tianjin,the draft of farmers picking orchis in Henan,the corn case of Wang Lijun in Inner Mongolia,and the case of Wang Peng parrot in Shenzhen,Guangdong and other series of cases have aroused widespread concern in the society.Due to the fact that legal crimes are usually not immoral and the number of administrative regulations is numerous and professional,it is difficult for the perpetrator to judge whether a crime is constituted by his legal feelings,so that there are more and more cases of wrong understanding of illegality in practice.However,the theoretical and practical circles have long been disputing the judicial identification of the wrong understanding of illegality,and no unified view has been formed,which makes the judicial practice appear the chaos of different judgment.Based on the current judicial situation in China,this thesis combines the viewpoints of domestic and foreign scholars and relevant laws at home and abroad,in order to build a feasible judicial identification scheme,to provide reference for the handling of similar cases.Based on the empirical analysis of judgment documents,this thesis shows that there are the following problems in judicial recognition of wrongful understanding: in most cases,the court has a negative attitude towards the defense reasons of wrongful understanding;in a few cases,the court has qualitative errors and inconsistent judgment standards of wrongful understanding.As our legislation does not stipulate the wrongful knowledge as the disclaimer,this causes judicial personnel to be unable to rely on when dealing with this issue.Moreover,the wrongful knowledge of fact and wrongful knowledge are easy to be confused,which undoubtedly increases the difficulty of judicial determination.This thesis puts forward the following solutions: first,on the basis of comparative law,in the legislation of our country to clearly stipulate the provisions of wrong understanding of illegality,so as to have a better role for judicial organs in dealing with this kind of case;Second,combine the criminal judicature practice in our country and use for reference the beneficial experience of foreign countries,construct the criterion of wrongful cognition and judgment of "objective have opportunity and subjective have effort",expect the judicial organ to have the oneness on cognizance;Thirdly,according to the results of the previous judicial judgment,the author analyzes the misunderstanding of the normative elements and the misunderstanding of administrative laws and regulations in the administrative crime,and combines the theoretical viewpoints at home and abroad to clarify the correct standard of distinguishing between the illegal misunderstanding and the factual misunderstanding,so as to delimit the scope of the illegal misunderstanding.