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Understandings of Illegality in Perspective of Chinese Criminal Law

Author: LaiLiYong
Tutor: FengYaDong
School: Southwestern University of Finance and Economics
Course: Criminal Law
Keywords: Criminal intent Understanding of factors Illegal cognition Damage is
CLC: D914
Type: Master's thesis
Year: 2011
Downloads: 43
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Abstract

Our intentional crime made in Article 14 of the Penal Code expressly provides that: knowing that their actions would \occurrence of harmful consequences to society, which involves understanding the attitude of the perpetrator of the crime intentionally. This understanding Damage is still illegal cognition, this problem scholars introduced the theory of criminal law in Germany and Japan in recent years, the debate has become increasingly fierce. Illegal cognition fierce endlessly reason why Germany and Japan on behalf of the civil law countries, is inseparable from the three-class system in Germany and Japan (that is deserved, illegal, accountability). It is the product of the three-class system in Germany and Japan, to discuss the behavior of people in the accountability level of awareness of the illegality level. Pass the Criminal Law say the theory is a system of four elements (objects, objective, subject, subjective aspect), the past and did not specifically investigate illegal cognition problems. Scholars to discuss the concept of criminal intent, criminal law, knowing that their actions will result \, which appeared in favor of the dangers of understanding view, the view point of view as well as in favor of a compromise in favor of illegal cognition, and each has its own certain reasons. Well, in China's Criminal Law, the crime deliberately recognize factors Damage is still illegal cognition? This paper attempts discusses solve the problem. This article first departure from the concept of illegal cognition, to discuss the meaning of illegal cognition. Germany and Japan on the meaning of illegal cognition has a different understanding of the form of illegal sexual awareness, the substance illegal cognition and real illegal recognize and form of illegal recognize three kinds. Chinese scholars in the understanding of the illegality of understanding of the concept of time, often the emphasis on literally to explain that it refers only to the behavior of people recognize acts in breach of the law norms. In fact, the illegality understanding the form and substance of the form as well as substantive and divided. Form of illegal cognition is in violation of legal norms, and the offense have a certain understanding; substance of illegal cognition refers to the violation of the law to protect legal interests, caused by the infringement of the legal interests, and the the real illegality pursuit is a significance of the kinds of illegal content, rather than just from the legal mandatory; substance of illegal awareness and form illegal awareness advocates illegal cognition supposed behavior for their own behavior in violation of the real meaning of consensus, the ideal of living together in society, as well as violation of the awareness of the significance of the behavior in the form of legal prohibition, command. Since the substance of illegal awareness and form of illegal recognize too harsh, there is no practical significance, today most scholars no longer be discussed. Criminal Law in Germany and Japan based on the above and then develop a different doctrine, including general legal norms violation of said special legal norms in violation of said that the spirit of the law violation, a fine sense of violation of criminal and former legal norms violation speak five. In fact, the general legal norms violation of said special legal norms violation said, in fact, carried out in the form of illegal sexual awareness based on. And the spirit of the law violation consistent with the substance illegal in nature. As for the sense of violation of criminal penalty that is available for adoption, and worthy of scrutiny. After all, the majority of people in China can not be familiar with the specific provisions of the Penal Code, thus requiring the perpetrator to recognize that their behavior will be sentenced to not work. Legal norms violation that will be in violation of ethical awareness as identified based on knowledge of illegality, but ethics is too broad, and its content is extremely unclear, leading to illegal cognition can not really be applied to practice . To explore in understanding the concept of illegality, classification, this paper followed starting from the three-class system in Germany and Japan, analysis of the root causes of illegal cognition problems. Illegality understanding the root causes of the civil law countries, with Germany and Japan on behalf of the three-class system associated, and that the crime was established to meet the three levels of the \At the level of accountability may wish to discuss whether the perpetrator is the \In this sense, the illegality of understanding with the understanding of the concept of the corresponding constituent elements. The above-mentioned problems in Germany and Japan scholars explore intense. Seen the generation of this problem is closely related to the unique crime in Germany and Japan established system. Chapter Damage is on. Half of the provisions in Article 14 of the Penal Code before, that is, \Hazardous concept through that means: the behavior of the criminal law to protect the social relations characteristic caused or may cause damage. Damage is the course of development, and in this article in which the Constitution of Crimes further been stated clearly. In the fourth chapter, the paper begin to analyze the illegal cognition, understanding of the relationship of Damage is intentional crime. Understanding of factors for criminal intent is illegal cognition problems, this paper analyzes the different views of scholars at home and abroad, and its sub-classified as definitely say, negate says compromise said the three theories. For criminal intent understand factors whether it is hazardous to know, also used a similar analysis of ideas. The point of this article: intentional crime awareness is based on the Hazard awareness is required, the awareness of the dangers as their understanding of factors - not illegal cognition. The reason is that: First, from the text of criminal law only requires Damage is not illegal cognition; Second, as mentioned earlier, illegal cognition is a product of the three-class system, not the product of four elements; once again, the illegality understanding the essence of the understanding of the legal interests of invasive, illegal cognition from this level, the introduction of superfluous things, after all, the dangers of understanding already contains legal interests invasive; Finally, China's criminal law, language environment with foreign illegal cognition understanding is a matter of opinion, and therefore should not be hasty introduction of the concept of China's criminal law theory. In addition, this paper also discussed the distinction between illegal cognition Damage is thus deepen the understanding of the dangers of the status and role of understanding in which the Constitution of Crimes. On the factors intentional crime awareness, illegal cognition than Damage is more perfect, and thus be able to replace hazardous recognize Criminal Intention factors, the paper concludes: illegal cognition problems constitute a crime in Germany and Japan would be generated in the system, while the country has taken the crime constitute a system with Germany and Japan is not the same, and the criminal law context is not the same, our country there is no awareness of the illegality of the problem such as Germany, Japan and other countries will produce; addition, China's criminal law has specific provisions on the crime of intentional, Germany and Japan do not have such specific requirements, factors Damage is intentional crime awareness, rather than illegality understanding.

Understandings of Illegality in Perspective of Chinese Criminal Law

Abstract

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